Gujarat High Court
Collector - Porbandar vs Premji Mavji Bamaniya on 13 December, 2021
Bench: A. P. Thaker
C/SCA/10174/2014 JUDGMENT DATED: 13/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10174 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 10176 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 10177 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 10178 of 2014
With
R/SPECIAL CIVIL APPLICATION NO. 10179 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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COLLECTOR - PORBANDAR
Versus
PREMJI MAVJI BAMANIYA & 1 other(s)
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Appearance:
MR. NIKUNJ KANARA, AGP (1) for the Petitioner(s) No. 1
MR SATYAM Y CHHAYA(3242) for the Respondent(s) No. 1
RULE SERVED(64) for the Respondent(s) No. 2
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 13/12/2021
ORAL JUDGMENT
1. By way of present petitions, the learned Collector,
C/SCA/10174/2014 JUDGMENT DATED: 13/12/2021
Porbandar has challenged the order dated 14.7.2011 passed by
Special Secretary, Revenue Department (Appeals) Ahmedabad in
Revision Application No. JMN/PRB/7/2007, whereby the learned
SSRD has directed the learned Collector, Porbandar to regularise
the encroachment of the private respondents herein by taking
market value, as per the Government Resolution of the Revenue
Department dated 8.1.1980. Since the common question of facts
and law are involved in all these petitions, they were earlier
ordered to be heard together.
2. The facts of the mater Special Civil Application No. 10174 of
2014 is taken as lead matter. The brief fact of the petition is that
there is a government gaucher land bearing Survey No. 208 paiki,
situated at village Chhaya, Taluka and District: Porbandar, and
the same was encroached upon by the private respondents in
1988 where against the private respondents, proceedings were
initiated under Section 61 of the Land Revenue Code before the
Mamlatdar, Porbandar. Learned Mamlatdar found that the five
respondents have encroached upon the land and were ordered to
pay due assessment for all 15 years of unauthorised occupancy
and has also order to vacate the land in question. Thereafter, the
private respondents moved an application dated 22.7.2004
before the Collector for regularisation of their unauthorised
occupancy, which came to be rejected by the Collector by order
dated 19.3.2007. The same was challenged by the private
respondents by way of aforesaid revision application before the
learned SSRD. By the impugned order, the learned SSRD has
directed the learned Collector to regularise the encroachment of
the respondents by charging the market price as per the
C/SCA/10174/2014 JUDGMENT DATED: 13/12/2021
Government Resolution dated 8.1.1980.
2.1 The main contention of the learned Collector, Porbandar is
that the land in question is of the Gauchar land and the
observations made by the learned SSRD is not in consonance with
the Government Resolution. He has also contended that it is not
a waste land. It is also contended that there are various
government officers and residential areas near the land in
question and, therefore, also the land in question cannot be
declared as agricultural land. He has also contended that to
remove encroachment is the main object of the Government
Resolution and for public purpose such land may be needed in
future. It is also contended that the respondent himself and his 5
brothers are hailing from a single family and has encroached
upon 12 Acres and 00 Guntha of the land. It is contended that if
they succeed in regularising the land, it may encourage other
persons too to encroach upon Government lands. It is contended
that disclosure of such cases of regularisation by the respondent
was not to be treated on the same footing as each and every
case has its own merits. It is prayed to allow the petition by
setting aside the impugned order of the learned SSRD.
3. Heard Mr. Nikunj Kanara, learned AGP for the petitioner
and Mr. Nishit Gandhi, learned advocate for Mr. Satyam Chhaya,
learned advocate for the private respondents.
4. Mr. Nikunj Kanara, learned AGP has vehemently reiterated
the contention raised in the memo of the petition and has
submitted that the order passed by the learned Collector as well
C/SCA/10174/2014 JUDGMENT DATED: 13/12/2021
as learned Mamlatdar were in consonance in law and proper one.
He has submitted that learned SSRD has committed error of facts
and law in directing to regularisation of the land in favour of the
respondents. While inviting the attention of the Court on the
Government Resolution dated 8.1.1980, the learned AGP
submitted that there is a cut-off date mentioned in the
Government Resolution, according to which the unauthorised
occupation of the land prior to 31.3.1972 could be regularised
whereas in the present case alleged unauthorised land is of the
year 1988 and, therefore, the provisions of the aforesaid
Government Resolution cannot be made applicable. He has
submitted that the other lands which may be granted to the
other person is a public trust doing charity work and, therefore,
that factor cannot be taken into consideration for regularisation
of the unauthorised occupation of the private respondents. He
has prayed to allow the present petition by setting aside the
order of the learned SSRD.
5. Per contra, learned advocate Mr. Nishit Gandhi for Mr.
Satyam Chhaya, learned advocate for the private respondents
submitted that the original respondents are belonging to
backward class. He submitted that proceedings under Section 61
of the Bombay Land Revenue Code was initiated in 2004. He has
submitted that the respondents have immediately applied for
regularisation of their encroachment. He has further submitted
that upon their application, the subordinate revenue authority
has sought for the opinion from the concerned Mamlatdar as well
as Deputy Collector. While referring to the opinion produced in
this matter, it is submitted that there are clear cut positive
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opinion in favour of the private respondents for regularisation of
their encroachment by way of paying premium for the market
price. He has submitted that the private respondents are ready
and willing to pay the amount which may be decided by the
government in this regard as directed by the learned SSRD to
learned Collector. He has invited the attention of the Court
regarding the various orders passed by the learned Collector,
Porbandar granting the portion of the land bearing Survey No.
208 paiki situated at village Chhaya, which is the subject matter
of these petitions and has submitted that when similarly situated
persons have been allotted the land and their unauthorised
occupation have been regularised, the private respondents are
also to be treated in a like manner. He has submitted that this
fact has already been considered by the learned SSRD in this
order and on that count also learned SSRD has passed order in
favour of the private respondents. He has submitted that the
learned SSRD has not committed any error of facts and law in
passing the impugned order.
5.1 Mr. Gandhi has also assailed the present petition on the
ground that the order of the learned SSRD is of the year 2011
whereas the present petitions are filed after 3 years in 2014.
Therefore, there is inordinate delay on the part of the learned
Collector, Porbandar in preferring the present petitions. He has
submitted that no proper explanation is offered in the petition
regarding such delay. While relying upon the following decisions,
he has submitted that on the ground of delay, these petitions
need to be dismissed :
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(i) Office of the Chief Post Master General and Ors v. Living
Media India Ltd and Anr, reported in 2012 (1) G.L.H 670 (SC);
(ii) Kiran Exhibitors v. State of Gujarat through Commissioner,
reported in 2012 JX (Guj) 1201;
(iii) Order of the Coordinate Bench dated 20.10.2016 passed in
Special Civil Application No. 7215 of 2016 in case of State of
Gujarat v. Prafulchandra Amichandra Shah; and
(iv) State of Madhya Pradesh v. Bherulal, reported in 2020 JX
(SC) 649.
6. In case of Chief Post Master General and Ors v. Living
Media India Ltd and Anr (Supra), the Supreme Court has observed
in Para-12 and 13 as under:
12) It is not in dispute that the person(s) concerned were well aware or
conversant with the issues involved including the prescribed period of
limitation for taking up the matter by way of filing a special leave
petition in this Court. They cannot claim that they have a separate
period of limitation when the Department was possessed with
competent persons familiar with court proceedings. In the absence of
plausible and acceptable explanation, we are posing a question why the
delay is to be condoned mechanically merely because the Government
or a wing of the Government is a party before us. Though we are
conscious of the fact that in a matter of condonation of delay when
there was no gross negligence or deliberate inaction or lack of bonafide,
a liberal concession has to be adopted to advance substantial justice,
we are of the view that in the facts and circumstances, the Department
cannot take advantage of various earlier decisions. The claim on
account of impersonal machinery and inherited bureaucratic
C/SCA/10174/2014 JUDGMENT DATED: 13/12/2021
methodology of making several notes cannot be accepted in view of the
modern technologies being used and available. The law of limitation
undoubtedly binds everybody including the Government.
13) In our view, it is the right time to inform all the government bodies,
their agencies and instrumentalities that unless they have reasonable
and acceptable explanation for the delay and there was bonafide effort,
there is no need to accept the usual explanation that the file was kept
pending for several months/years due to considerable degree of
procedural red-tape in the process. The government departments are
under a special obligation to ensure that they perform their duties with
diligence and commitment. Condonation of delay is an exception and
should not be used as an anticipated benefit for government
departments. The law shelters everyone under the same light and
should not be swirled for the benefit of a few. Considering the fact that
there was no proper explanation offered by the Department for the
delay except mentioning of various dates, according to us, the
Department has miserably failed to give any acceptable and cogent
reasons sufficient to condone such a huge delay. Accordingly, the
appeals are liable to be dismissed on the ground of delay".
7. In case of Kiran Exhibitors v. State of Gujarat through
Commissioner (Supra), the Division Bench of this Court has
observed in Paras-6, 7 and 8 are as under:
"6. In our opinion, the petition and the prayer in connection with
quashing such revisional order must fail on the ground of delay and
laches. It is true that there is no fixed period of limitation for filing writ
petition before the High Court under Articles 226 and 227 of the
Constitution of India. This is, however, not the same thing as to suggest
that a citizen can move the Court at any time without any reference to
the nature of delay. It is often suggested that the law does not help the
tardy and the lethargic. If it is pointed out that a particular cause is
taken-up after long number of years without any explanation for such
C/SCA/10174/2014 JUDGMENT DATED: 13/12/2021
inordinate delay, the Court would certainly examine such a challenge in
the context of laches.
7. To reiterate in the present petition to explain more than seven years
of delay for filing the petition against the revisional order, the
petitioner, has offered no explanation whatsoever. Despite best efforts
of the counsel for the petitioner, we are unable to ignore such delay.
Counsel contended that the order is ex facie illegal and ab initio void.
He submitted that there has been breach of natural justice. To our mind,
such issues would not be germane till we permit the petitioner to argue
the cause on merits. When we are not inclined to entertain the petition
at the very stage of delay, we do not express any opinion on several
contentions raised by the counsel for the petitioner on merits. Counsel
for the petitioner contended that once the petition was admitted, delay
would be its significance. Further, the respondents have raised no
objection of delay. To our mind both the contentions are devoid of
merits. Firstly there is nothing to suggest that the court, while
admitting the petition, considered the aspect of delay and admitted the
petition over-ruling such obstacle. Question of delay was not therefore
gone into. At the time of hearing therefore, if such a question comes to
the notice of the court, there is no prohibition from examining the same
even if not specifically raised by the respondents.
8. With respect to the challenge to the show-cause notice, the same was
founded on non-payment of tax by the petitioner. It would be open for
the petitioner to reply to such a show cause notice and thereafter for
the authorities to take a view in accordance with law".
7.1 Now so far as the other two decisions are concerned, they
are on the same line of principles and, therefore, they are not
discussed herein.
8. Having considered the submissions made on behalf of both
the sides coupled with the material placed on record and the
C/SCA/10174/2014 JUDGMENT DATED: 13/12/2021
aforesaid legal submissions, it transpires that there is no dispute
regarding the fact that land bearing Survey No. 208 paiki of
Chhaya Village is earlier a Government Gauchar land and not it is
with the Chhaya Nagar Palika. It is also admitted fact that the
proceedings under Section 61 of the Bombay Land Revenue Code
were initiated against the respondents herein for their
encroachment on land bearing Survey No. 208 paiki beginning
from 1988. It is also admitted fact that the private respondents
have already moved application for regularisation of their
unauthorised occupation and has shown willingness to pay
requisite premium to the Government. It also appears that
Government has also issued Resolution dated 8.1.1980 regarding
regularisation of the encroachment over the Government land. It
is also revealed that the application for regularisation came to be
rejected by learned Collector and the same was challenged
before the learned SSRD. Learned SSRD in the impugned order
has referred to entire factual aspect of the case and came to the
conclusion that in the same parcel of land, the learned Collector
has granted regularisation of the encroachment of other person
and in other case, the Government itself has regularised the
same parcel of land being Survey No.208 paiki. These factors are
also revealed from the various orders placed on record, from
Page No. 84 to 105. On perusal of these orders, it appears that
the encroachment over the land in question i.e. Survey No. 208
paiki of the Chhaya Village, District Porbandar either by the
Institution or by private parties have been regularised by the
concerned Collector. Thus, the encroachment in the land in
question by others have been conveniently regularised by the
concerned Collector at the relevant time. It also appears that the
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stand of the Collector, in the present matter is that the land in
question is a Gauchar land. If that was really the fact then the
encroachment by other persons and Institution ought not to have
been regularised by the learned Collector, Porbandar. Further,
from the perusal of the order of the learned SSRD, it appears
that there is a conflict of opinion regarding the entry of the land.
Of course, there is a clarification that earlier it was shown as
Gauchar land but since the land has been went to the Chhaya
Nagar Palika, which is not mentioned. But the fact remains that
for the same parcel of land i.e. Survey No. 208 paiki, there is
regularisation of illegal encroachment in respect of other private
persons and in case of Institution.
9. Thus, considering the overall facts, it clearly transpires that
the learned SSRD has not committed any error of facts and law in
passing the impugned orders.
10. At this juncture, it needs to be mentioned that learned AGP
has placed reliance on Supreme Court's judgment rendered in
Civil Appeal No. 1132 of 2011 in the case of Jagpal Singh & Ors v.
State of Punjab & Ors, wherein the Hon'ble Supreme Court had
deprecated the granting of Gauchar land to anybody and
granting of such land has been declared to be illegal one. But as
observed earlier, in the present case, there is difference of
opinion regarding the nature of the land in question. Further, as
observed earlier, for the same parcel of land, there is an order
passed by the learned Collector as well as Government
regularising the encroachment of the person or Institution. Thus,
on the facts, the reliance placed on the decision of the Supreme
C/SCA/10174/2014 JUDGMENT DATED: 13/12/2021
Court by the learned AGP is not applicable to the facts of the
present petitions.
11. In view of the aforesaid discussion, all the petitions deserve
to be dismissed and accordingly all the petitions are hereby
dismissed.
Rule is discharged. No order as to cost.
(DR. A. P. THAKER, J)
SAJ GEORGE
