Kantilal Jivabhai Patel Since ... vs State Of Gujarat Thro Secretary
2021 Latest Caselaw 4913 Guj

            C/LPA/1021/2016                                                   ORDER Dt. : 31.03.2021


     KANTILAL JIVABHAI PATEL SINCE DECD.THRO' LEGAL HEIRS Versus STATE OF GUJARAT THRO SECRETARY & 1 other(s)



       IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO. 1021 of 2016
                              With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2016
            In R/LETTERS PATENT APPEAL NO. 1021 of 2016
==========================================================
     KANTILAL JIVABHAI PATEL SINCE DECD. THRO' LEGAL
                         HEIRS
                          Versus
       STATE OF GUJARAT THRO SECRETARY & 1 other(s)
==========================================================
Appearance:
MR BHARAT T RAO(697) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4,1.5
MR KM ANTANI, ASST GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2
MR.AMIT R JOSHI(6682) for the Respondent(s) No. 3
==========================================================

 CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
        and
        HONOURABLE MR. JUSTICE BIREN VAISHNAV

                                          Date : 31/03/2021

                                           ORAL ORDER

(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. The present Letters Patent Appeal is filed against the Order dated 09.04.2012 by which the learned Single Judge dismissed Special Civil Application No. 17004 of 2011 [Kantilal Jivabhai Patel vs. State of Gujarat and Others].

2. A Review Application was filed by the petitioners against the said Order dated 09.04.2012, namely, Misc. Civil Application No. 2468 of 2012 in Special Civil Application No. 17004 of 2011 which Review Application was dismissed by the learned Single Judge on

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KANTILAL JIVABHAI PATEL SINCE DECD.THRO' LEGAL HEIRS Versus STATE OF GUJARAT THRO SECRETARY & 1 other(s)

09.10.2015. The relevant portion of both the impugned Orders are quoted below for ready reference:

Order Dated 09.04.2012 passed by Learned Single Judge in Special Civil Application No. 17004 of

"7.I have heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record.

8. The first glaring aspect that draws the attention of this Court is the delay in filing the petition. The petitioner has challenged the order dated 06­12­1995 passed by the District Collector and order dated 19­01­ 2000 passed by the Principal Secretary (Appeals), Revenue Department, and was under the impression that the Revision Application is still pending. It is averred in the petition that when nothing was heard about the revision time, application the for petitioner a made considerable inquiries and period of ultimately came to know regarding the passing of the order in the Revision Application. A certified copy of the said order was, thereafter, applied for, and the petition was filed.

9. This explanation of the petitioner is, unfortunately, belied from the record itself. During the pendency of the Revision Application before the Principal Secretary (Appeals), not only was the learned

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KANTILAL JIVABHAI PATEL SINCE DECD.THRO' LEGAL HEIRS Versus STATE OF GUJARAT THRO SECRETARY & 1 other(s)

advocate for the petitioner heard, but he was also granted adjournments from time to time. Moreover, his submissions were also recorded. The impugned order has, therefore, been passed after hearing the learned advocate for the petitioner. The more important aspect is, that there is an endorsement on the impugned order that copies have been sent to the concerned parties. In view of this, it cannot be assumed, as a matter of course, that the petitioner did not have knowledge of the passing of the said order. The application dated 14.07.2010 addressed by the petitioner to the Principal Secretary (Appeals), appears to be an after­thought, that has occurred in the year 2010, as a prelude to the filing of this petition, in the year 2011. The explanation offered by the petitioner for the delay of 12 years is, therefore, not convincing.

10. Apart from the aspect of delay, the facts of the case reveal that the land vested in the State Government pursuant to order dated 18­03­1988, passed by the Recovery Officer, Gujarat State Co­operative Land Development Bank.

11.It is not disputed that the petitioner had taken a loan from the said Bank, which he could not repay. The auction of the land was held but as there were no bidders who bid higher than the upset price, the land was auctioned in favour of the State Government. This order

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KANTILAL JIVABHAI PATEL SINCE DECD.THRO' LEGAL HEIRS Versus STATE OF GUJARAT THRO SECRETARY & 1 other(s)

has not been challenged by the petitioner. Pursuant thereto, Entry No.1442 was mutated on 23­06­ 1988, in the revenue record, in favour of the State Government. This Entry has also not been challenged by the petitioner at any point of time. Both the order dated 18/03/1998 and Entry No.1442 have now attained finality.

12.The main grievance of the petitioner, as voiced in the petition as well as reiterated by the submissions advanced by the learned advocate for the petitioner, is that the imgugned order of the Collector dated 06­12­ 1995, is a four­line order, containing no reasons, whatsoever. A grievance has also been ventilated that the said order has been passed without hearing the petitioner, and that the ground for passing of the order, namely, that the petitioner is not cultivating the land in question, is not correct. According to the petitioner, he is in continuous possession on the land and is cultivating the same, in spite of it having vested in the State Government. The grievance of the petitioner regarding the impugned order of the Collector dated 06­12­1995

has been taken care of, by the impugned order dated 19­ 01­2000, passed by the Principal Secretary (Appeals), who has not only set aside the order of the Collector but has, in terms, expressed extreme displeasure at the manner in which the subordinate authorities have permitted the petitioner to remain in unauthorized

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KANTILAL JIVABHAI PATEL SINCE DECD.THRO' LEGAL HEIRS Versus STATE OF GUJARAT THRO SECRETARY & 1 other(s)

occupation of the said land, that now belongs to the State Government. The Principal Secretary (Appeals) has, by a detailed and reasoned order, directed the revenue authorities to immediately take steps, unauthorized within 30 days, for removing the unauthorized possession of the petitioner over the land in question. As stated in the impugned order, the inaction of the subordinate revenue authorities in removing the unauthorized possession of the petitioner has tacitly helped the petitioner.

13. As there is no dispute regarding the fact that the petitioner is no longer the owner of the land, and that the land has vested in the State Government as far back as on 18/03/1988, evidenced by a mutation entry to this effect, it cannot be said that the findings arrived at by the Principal Secretary (Appeals), are unreasonable, or against the record.

14 The learned advocate for the petitioner has not been able to point out any legal or indefeasible right that inheres in the petitioner for re­grant of the land to him, by the State Government. The petitioner could not repay the loan taken from the Bank that has led to the current state of affairs, and the State Government cannot be faulted on this account. The submission on behalf of the petitioner that now his financial position has improved, is not a valid ground for claiming re­grant of the land, as

C/LPA/1021/2016 ORDER Dt. : 31.03.2021

KANTILAL JIVABHAI PATEL SINCE DECD.THRO' LEGAL HEIRS Versus STATE OF GUJARAT THRO SECRETARY & 1 other(s)

a matter of right, where none exists. The impugned order of the Principal Secretary (Appeals), Revenue Department is a reasoned one and, on the facts of the case, does not deserve to be interfered with, by this Court. As no legal, fundamental or indefeasible right of the petitioner has been violated, the prayers made in the petition, cannot be accepted.

15. Accordingly, the petition, being devoid of merit,

is rejected. Rule is discharged."

Order Dated 09.10.2015 passed by Learned Single Judge in Misc. Civil Application No. 2468 of 2012

"10. After a careful perusal of the application, this Court finds that there is not a single averment to the effect that the judgement dated 09.04.2012 passed by this

Court in Special Civil Application No. 17004 of 2011

suffers from any error apparent on the face of the record.

Neither has any other cogent or acceptable ground for review has been pleaded. The only ground emerging from the perusal of the application and from the submissions of the learned advocate for the applicants is that, the judgment ought to be reviewed and modified so as to enable the applicants to make a fresh application for the re­grant of the land that has already vested in the State Government in the year 1988, and directions be issued to the respondents to consider such application in

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view of the policy of the State Government. It may be noted that no policy of the State Government was ever alluded to or referred during the hearing of the petition. This submission is extraneous and beyond the scope of the petition itself, therefore, cannot be accepted by this Court. To do so would amount to the reopening of the already concluded proceedings on a ground that was never pleaded in the petition.

10. It is a settled position of law enunciated by the Supreme Court in a catena of judgments that a review application cannot be preferred as an appeal in disguise. The present is a case wherein the applicants seek to do just that. Reference may be made to the principles of law

enunciated by the Supreme Court in Meera Bhanja

(Smt.) Vs. Nirmala Kumari Chaoudhary (Smt.)

(Supra.), which has already been reproduced

hereinabove.

11. In the view of this Court, the present application is nothing but an attempt to reopen an already concluded matter on merits and re­argue it, which is impermissible in a review petition. Not a single cogent ground for review has been made out by the appellants. Hence,t his Court has no other option but to pass the following order:

The application is rejected. Rule is discharged. There shall be no orders as to costs."

3. The learned Counsel for the Appellants Mr. B.T. Rao urged

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before us that the re­grant of the land to the Appellants - Petitioners deserved to be considered by the Competent Authority in accordance with the extant Rules and Government Resolutions and therefore the learned Single Judge has erred in rejecting the Writ Petition as well as the Review Application.

4. On the other hand, learned Government Counsel supported the impugned Orders and urged that no mistake apparent on the face of the record in the Order dated 09.04.2012 was available to be reviewed or rectified and therefore the learned Single Judge was justified in rejecting the Review Petition.

5. Considering the submissions made at the bar and upon perusal of both the Orders, we are satisfied that the present Letters Patent Appeal can be disposed of only with the liberty to the Appellants - Petitioners to move the Competent Authority by way of fresh Application for re­grant of the land in question which may be considered by the Competent Authority in accordance with law. We need not express any opinion on the merits of the case and therefore we leave it free for the Competent Authority to consider the Application of the Appellants - Petitioners in accordance with law as expeditiously as possible, preferably within six months from the date of receipt of such Application. The Appellants - Petitioners will be free to rely upon the relevant Rules, Regulations and Government Resolutions, if any. Appeal is accordingly disposed of. No costs.

(DR. VINEETKOTHARI,J)

(BIRENVAISHNAV,J) DIVYA