Chamar Dhirubhai Lalabhai vs State Of Gujarat
2021 Latest Caselaw 10604 Guj

      C/LPA/216/2018                               ORDER DATED: 04/08/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 216 of 2018

            In R/SPECIAL CIVIL APPLICATION NO. 9580 of 2016

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                       CHAMAR DHIRUBHAI LALABHAI
                                 Versus
                       STATE OF GUJARAT & 3 other(s)
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Appearance:
MR SL VAISHYA(960) for the Appellant(s) No. 1
MR AYAAN PATEL, AGP(1) for the Respondent(s) No. 1,3,4
NOTICE SERVED(4) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
          and
          HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI

                             Date : 04/08/2021

                               ORAL ORDER

(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)

1 This appeal under Clause 15 of the Letters Patent is at the instance of the original writ applicant and is directed against the order passed by a learned Single Judge of this Court dated 21 st December 2017 in the Special Civil Application No.9580 of 2016, by which the learned Single Judge rejected the writ application.

2 The facts giving rise to this appeal may be summarized as under:

3 The appellant herein (original writ applicant) filed the Special Civil Application No.9580 of 2016 with the following prayers:

"(A) Your Lordships may kindly be pass order or quash and set aside the order of Honourable Secretary in connection with the order dated 06/04/2016 being No.MVV/JMN/BSN/6/2020 and the order of Deputy Collector dated 29/1/2010 being order No.MVV/JMN/BNS/57/2008 order dated 29/1/2010 kindly be set aside.

C/LPA/216/2018 ORDER DATED: 04/08/2021

(B) Your Lordships may be pleased to pass order for interim relief in connection with the order dated 06/04/2016 being No.MVV/JMN/BSN/6/2010 and the order of Deputy Collector dated 29/1/2010 being order No.MVV/JMN/BNS/57/2008 order dated 29/1/2010 may kindly be stay till final disposal of the petition.

(C) Your Lordships may be pleased to direct the respondents to give possession of the petition to execution operation and implementation of order the Honourable Secretary passed dated 16/4/2016 may kindly be stay in the interest of justice till the final disposal of the writ petition respondents should not disturb the possession of petitioner.

(D) Your Lordships may be pleased to regarding the possession to regarding the possession to give the petitioner till final disposal of this petition and petitioner is having possession more than 20 years.

(E) Your Lordships may be pleased to pass order direct to the respondent collector, deputy collector, Mamlatdar to allot the question land the petitioner is owner of the said land with due process of law.

(F) Your Lordships may be pleased to grant such other and further relief that may be deemed to fit just and proper in the facts and circumstances of the case."

4 It appears from the materials on record that the dispute revolves around a parcel of land bearing Revenue Survey No.256 admeasuring 6 Acres, situated at village : Isarva, Taluka : Kankrej, District : Banaskantha. The appellant herein, at one point of time, was in possession of the said land. He applied for regularization of his alleged possession and such application came to be rejected vide order dated 29th November 2008. Against the order dated 29 th November 2008, the appellant filed revision application before the S.S.R.D., which came to be allowed and the proceedings were remitted to the District Collector. The District Collector once again looked into the matter, more particularly, the policy of the State Government and passed an order dated 29 th January 2010 declining to regularize the possession. Once again, the appellant went before the S.S.R.D. by filing a revision and the same came to be rejected.

      C/LPA/216/2018                                  ORDER DATED: 04/08/2021




5     In such circumstances referred to above, the appellant came

before this Court by filing the Special Civil Application No.9580 of 2016, which came to be rejected by the learned Single Judge.

6 Being dissatisfied with the impugned order passed by the learned Single Judge, the appellant - original writ applicant is here before this Court with the present appeal.

7 The learned Single Judge, while rejecting the writ application, observed as under:

"5. On perusal of the record fo the case as well as the impugned order, it was the case of the petitioner that the land in question was given to his predecessor as a matter of Jagir. The learned Secretary has noted that by Entry No.137, land has been allotted to the petitioner. However, on perusal of the impugned order dated 06.04.2016 passed by learned Secretary, it is clearly observed by Resolution No.2 that, Gram Panchayat has objected to regularization and demanded the very land for some public purpose. Even considering the policy of the Government as per Resolution No.2, if the land is needed for any private purpose, the same cannot be directed to be regularized. At the end, learned counsel for the petitioner contended that earlier the petitioner had approached this Court by filing Special Civil Application No.10303/2009, wherein this Court (Coram : Hon'ble Mr.Justice M.R.Shah) has observed thus:-

"4.Under the circumstances, present special civil application succeeds in part and Rule is made absolute only with respect to communication dated 14.9.2009 of the Collector, Banaskantha by which, the petitioner is directed to handover the possession till the decision is taken by the Authority pursuant to the judgment and order passed by Revisional Authority dated 24.2.2009 passed in Revision Application No.57 of 2008 and petition is dismissed and Rule is discharged so far as the challenge to the impugned judgment and order passed by the Secretary (Appeals), Revenue Department, State of Gujarat dated 24.2.2009 passed in Revision Application No.57 of 2008.

An appropriate authority, who is required to take a decision, pursuant to the judgment and order passed in Revisional Authority i.e. Secretary (Appeals), Revenue Department, State of

C/LPA/216/2018 ORDER DATED: 04/08/2021

Gujarat dated 24.2.2009 passed in Revision Application No.57 of 2008, is hereby directed to take an appropriate decision in accordance with law and on merits at the earliest but not later than 2 (two) months from the date of receipt of this order and till then parties are directed to maintain status-quo."

6. Present petition is in fact directed against the order thereafter passed by learned Secretary. However, considering the fact that the petitioner belongs to scheduled caste so also considering the policy of the Government, interests of justice would be served, if the petitioner is directed to file appropriate application before the concerned authority. Accordingly, the petitioner shall file appropriate application for allotment of any other santhani land before District Collector, Banaskantha and the same may be considered by the District Collector as per the prevailing policy of the Government sympathetically.

For the foregoing, present petition being devoid of any merits, deserves to be dismissed and is hereby rejected in limine. No costs.

Direct Service is permitted."

8 We have heard Mr. Vaishya, the learned counsel appearing for the appellant and Mr. Ayaan Patel, the learned A.G.P. appearing for the State respondents.

9 Having regard to the observations made by the learned Single Judge in para 6 of the impugned order referred to above, we see no good ground to entertain this appeal. In our opinion, no error, not to speak of any error of law could be said to have been committed by the learned Single Judge in rejecting the writ application. The learned Single Judge has left it open to the appellant to file an appropriate application for allotment of any other santhani land. If the appellant, as on date, has already filed such application addressed to the District Collector, Banaskantha, then, the Collector may look into the same in accordance with the policy and take an appropriate decision. We do not express any opinion in this regard.

      C/LPA/216/2018                               ORDER DATED: 04/08/2021



10    With the aforesaid, this appeal fails and is hereby dismissed.




                                                    (J. B. PARDIWALA, J)




                                               (VAIBHAVI D. NANAVATI,J)
CHANDRESH