Gujarat High Court
Kanjibhai Virjibhai Ninama vs State Of Gujarat Thro Principal ... on 3 March, 2014
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/13727/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13727 of 2012
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KANJIBHAI VIRJIBHAI NINAMA....Petitioner(s)
Versus
STATE OF GUJARAT THRO PRINCIPAL SECRETARY & 2....Respondent(s)
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Appearance:
MR MA KHARADI, ADVOCATE for the Petitioner(s) No. 1
MR RAKESH PATEL ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1
MR VIMAL A PUROHIT, ADVOCATE for the Respondent(s) No. 3
NOTICE SERVED BY DS for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 03/03/2014
ORAL ORDER
1. By way of present petition under Articles 14, 19, 21, 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 07.10.2011 passed by respondent no.1 in Revision Application No. 10 of 2011 preferred by respondent no.3 challenging the order dated 09.03.2011 passed by the Collector, Dahod and remanding the case for fresh hearing.
2. It is the case of the of petitioner that though the petitioner is allottee of the land bearing survey nos. 114 and 115 admeasuirng 1 Acre 75 Gunthas and 2 Acre 56.98 Gunthas respectively. The land Page 1 of 6 C/SCA/13727/2012 ORDER admeasuring 87 Gunthas of village Chhapri was shown having restriction of Section 73AA of Bombay Land Revenue Code. Since the private respondents had purchased the land, from the petitioner in the year 2000, the Collector, Dahod found that by purchasing the land of the tribal original owner, the private respondents have committed breach of Section 73AA of the Bombay Land Revenue Code and initiated the proceedings in the year 2010. The Collector, after hearing private respondent no.3, the land was forfeited and it was directed that the land being mutated in the name of the Government vide order dated 09.03.2011.
2.1 Being aggrieved with the said order dated 09.03.2011, the petitioner preferred Revision application NO. 10 of 2011 before respondent no.1. After hearing the petitioner and considering the facts and circumstances of the case, respondent no.1 found that the Collector, Dahod has not dealt with the case properly and, therefore, quashed the order and remanded the case to the Collector, Dahod for fresh consideration. Hence this petition.
3.0 Mr. Kharadi, learned advocate appearing for the petitioner submitted that though the petitioner is the original owner of the land in the dispute, he was not joined as party before the revisional authority and he is not heard before passing the impugned order and, therefore, the matter is required to be remanded to the Revenue Department and Page 2 of 6 C/SCA/13727/2012 ORDER Revisional authority be directed to hear the petitioner before passing the orders wherein the private respondents have challenged the order of the Collector, Dahod.. The only ground raised by Mr. Kharadi, learned advocate appearing for the petitioner is, not giving the opportunity of hearing to the petitioner though he is necessary party, the authority has committed breach of principles of natural justices.
4. Mr. Purohit, learned advocate appearing for private respondents has vehemently opposed this petition and by taking me through the affidavit filed on behalf of respondent no.3, he submitted that the petitioner has no locus in the matter since the land in dispute was sold by him wayback in the year 2000, that too after gap of appropriate sanction from the competent authority under the provisions of section 73AA of the Code. By taking me through the documents, he submitted that sale deed was executed in favour of private respondents by the petitioner and an amount of Rs. 23, 75, 100/( Rupees Twenty Three Lacs Seventy Five Thousand and hundred only) was paid to the present petitioner by account payee cheque in presence of Mamlatdar, Dahod and accordingly he became owner of the land. He further submitted that the petitioner after accepting the amount filed several suits before the learned civil judge, Godhra, Dahod. However, suits were compromised between the parties. Since the respondent no. 3 was being harassed by the present petitioner the private respondent had no alternative but to file a civil suit in the Court of learned Civil Page 3 of 6 C/SCA/13727/2012 ORDER Judge by filing Regular Civil Suit No. 44 of 2009 praying permanent injunction against the petitioner which has been decreed in favour of the private respondents. It is further submitted that the petition has been filed with malafide intention. He would further submit that even the revisional authority has remanded the case for fresh consideration and therefore, the petition may be dismissed. He would submit that the wrong doer can not take advantage of his own wrong. In support of his contention he has placed reliance on the decisions of the Division Bench of this Court in case of (i) Gulabbhai Ravjibhai Patel versus Badriprasad Vithalrao Bende & Ors - 2011(3) GLR 2472, (ii) Sunderlal Bhanabhai Bhagat & Ors. versus State of Gujarat & Ors. 2012(3) GLR 2081 and (iii) Dashrathlal M. Patel heirs and L.R. Of Maganbhai Joitaram & Ors. versus State of Gujarat & Ors. 2013(1) GLR 418 ,)
5. I have heard learned advocates for the respective parties. Following undisputed facts emerge from the record:
5.1 Vide order dated 29.01.2000, the Collector, Dahod had granted permission under Section 73AA of the Code and has categorically stated that the petitioner had received an amount of Rs. 23,75,100/ and the petitioner was permitted to use the land for making construction.
Subsequent to this order, the private respondents submitted an application under Section 65 of the Code to convert the land into non Page 4 of 6 C/SCA/13727/2012 ORDER agriculture which was accepted by competent authority vide oral order dated 01.06.2002. The civil suits which have been filed by the petitioner have been compromised before the competent authority and appropriate orders have been passed by the learned Civil Judge. The suit filed by respondent no. 3 against present petitioner for permanent injunction is decreed and decree is passed in favourr of private respondent no.3 holding that respondent no. 3 is the owner and occupier of the land and present petitioner had no right, title or interest he is restrained from entering into the land.
6. I am also in agreement with the submissions made by learned advocate appearing for private respondents and the principles laid down by this Court in case of (i) Gulabbhai Ravjibhai Patel versus Badriprasad Vithalrao Bende & Ors (supra) (ii) Sunderlal Bhanabhai Bhagat & Ors. versus State of Gujarat & Ors.(supra) and (iii) Dashrathlal M. Patel heirs and L.R. Of Maganbhai Joitaram & Ors. versus State of Gujarat & Ors. (supra).
7. Considering the above aspect,I am of the opinion that the petitioner has lost his right, title or interest in the matter as per the decree passed by the competent court. After selling the property to the private respondent no.3, it was not necessary to hear the petitioner by the revisional authority. Even otherwise, the matter has been remanded Page 5 of 6 C/SCA/13727/2012 ORDER by the revisional authority. Therefore, the petition is meritless and the same is dismissed. Notice is discharged with no order as costs.
(A.J.DESAI, J.) niru* Page 6 of 6