Gujarat High Court
State Of Gujarat vs Dhudabhai Bhojabhai Vankar on 23 November, 2021
Bench: Hemant M. Prachchhak
C/CA/2470/2020 ORDER DATED: 23/11/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 2470 of 2020
In
R/LETTERS PATENT APPEAL NO. 962 of 2020
With
R/LETTERS PATENT APPEAL NO. 962 of 2020
In
SPECIAL CIVIL APPLICATION NO. 4167 of 2014
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2020
In
R/LETTERS PATENT APPEAL NO. 962 of 2020
In
SPECIAL CIVIL APPLICATION NO. 4167 of 2014
==================================================
STATE OF GUJARAT
Versus
DHUDABHAI BHOJABHAI VANKAR
==================================================
Appearance:
MR KM ANTANI, ASST GOVERNMENT PLEADER(1) for the
Applicant(s) No. 1,2,3
for the Respondent(s) No. 1.1,1.2,1.3,1.4,1.5,1.6
MR KH BAXI(150) for the Respondent(s) No. 2
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 1
==================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR
and
HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Page 1 of 13
Downloaded on : Wed Jan 12 03:36:07 IST 2022
C/CA/2470/2020 ORDER DATED: 23/11/2021
Date : 23/11/2021
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE
ARAVIND KUMAR)
1. There is delay of 648 days in filing LPA No.962 of 2020
and seeking condonation of the same, the present application
has been filed. The reason for delay has been assigned in
paragraph Nos. 3 to 12. The said application has been orally
objected to by the opponent - respondent. In order to examine
as to whether delay deserves to be condoned and appeal is to
be heard on merits, we incidentally have looked into the
grounds urged in the appeal, as well as the order which has
been impugned in the LPA namely order dated 08.05.2018
passed by the learned Single Judge in Special Civil Application
No.4161 of 2014.
2. It is no doubt true that no litigant would stand to benefit
by approaching the Court belatedly. While considering an
application for condonation of delay, it is not the length of
delay but cause of delay, which would be of paramount
consideration. If the cause shown is sufficient and it would
constitute "Sufficient Cause" as indicated in Section 5 of the
Limitation Act, 1963 and said cause being in proximity of
truth, delay deserves to be condoned.
2.1 At this juncture, it would be apt and appropriate to refer
C/CA/2470/2020 ORDER DATED: 23/11/2021
the judgment of the Apex Court in case of Collector Land
Acquisition vs. Mst. Katiji & Ors., reported in AIR 1987 SC
1353, whereunder their Lordships have held to the following
effect;
""Any appeal or any application, other than an
application under any of the provisions of Order XXI of
the Code of Civil Procedure, 1908. may be admitted after
the prescribed period if the appellant or the applicant
satisfies the court that he had sufficient cause for not
preferring the appeal or making the application within
such period."
1. Ordinarily a litigant does not stand to benefit by
lodging an appeal late.
2. Refusing to condone delay can result in a meritorious
matter being thrown out at the very threshold and cause
of justice being defeated. As against this when delay is
con- doned the highest that can happen is that a cause
would be decided on merits after hearing the parties.
3. "Every day's delay must be explained" does not mean
that a pedantic approach should be made. Why not every
hour's delay, every second's delay? The doctrine must be
applied in a rational common sense pragmatic manner.
4. When substantial justice and technical considerations
are pitted against each other, cause of substantial justice
deserves to be preferred for the other side cannot claim to
have vested right in injustice being done because of a
non-deliberate delay.
5. There is no presumption that delay is occasioned
deliberately, or on account of culpable negligence, or on
account of mala fides. A litigant does not stand to benefit
by resorting to delay. In fact he runs a serious risk.
C/CA/2470/2020 ORDER DATED: 23/11/2021
6. It must be grasped that judiciary is respected not on
account of its power to legalize injustice on technical
grounds but because it is capable of removing injustice
and is expected to do so."
2.2 At the same time, this Court has to see that in the
matter the delay the cause shown if not in the proximity or
vicinity of truth or the cause assigned would not inspire
confidence for being accepted, irrespective of length of delay,
such delay deserves to be condoned or not. For the said
preposition the judgment of the Apex Court in case of Dr.
Mubarak Sani T.P vs. Academy of Medical Sciences in Special
Leave Petition (Civil) No.9127 of 2020 dated 15.10.2020 can be
looked up.
3. As noticed herein above, in order to examine whether
any fruitful purpose will be served on the respondents in Civil
Application No. 2470 of 2020, we have examined the order of
the learned Single Judge and we find that there is no good
ground to entertain the appeal, for reasons indicated herein
below.
3.1 Petitioner was granted land admeasuring 6 acre and 2
gunthas way back on 10.12.1977 and the upset price fixed was
Rs.9000/-, out of which Rs.57/- was paid and the balance
amount of Rs.8943/- remained unpaid. A show cause notice
came to be issued on 23.01.1999 to the petitioner for forfeiture
of the said land on the ground that occupancy price had not
C/CA/2470/2020 ORDER DATED: 23/11/2021
been paid and he had not been cultivating the said land. The
said show cause notice was duly replied and the order of
forfeiture came to be passed by the Deputy Collector on
30.11.2000.
3.2 Being aggrieved by the same, petitioner filed an appeal
before the collector, who affirmed the order of the Deputy
Collector by order dated 23.08.2003. Not being satisfied with
these two orders, petitioner persuaded his grievance by filing
revision before the Special Secretary Revenue Department
(SSRD), which also did not find favour and the revisional
authority by order dated 01.11.2013, dismissed the revision
application and affirmed the orders of the revenue authorities.
Hence, petitioner approached the learned Single Judge in
Special Civil Application No.4167 of 2014 assailing all the
three orders and learned Single Judge by order dated
08.05.2018 (impugned in the LPA) allowed the petition by
setting aside the order dated 30.11.2000, 23.08.2003 and
01.11.2013 passed by the Deputy Collector, Collector and SSRD
respectively.
3.3 Having regard to the cause shown is in the vicinity of
truth and the dicta laiddown by the Court in the above
referred cases, we are of the considered view that delay
deserves to be condoned and accordingly it is condoned. Civil
Application No.2470 of 2020 is hereby allowed.
C/CA/2470/2020 ORDER DATED: 23/11/2021
4. Petitioner was visited with an order of forfeiture of the
land as noted herein above on the ground that he had not
paid the occupancy price and he had not cultivated the land
granted to him. However, before the learned Single Judge an
additional ground was raised to sustain the said order of
forfeiture of land by the State contending inter alia that allotee
was already possessing land and as such he was not entitled
for allotment or grant of land at all. In so far as the third
ground is concerned, it requires to be noticed at this juncture
itself that said ground was not subject matter of the show
cause notice and it was for the first time raised before the
learned Single Judge. As such, said contention holds no water
and is liable to be rejected and it is this precise exercise,
which was undertaken by the learned Single Judge to reject
the plea of the State vide paragraph 22 of the impugned order.
4.1 In so far as other two contentions which were raised in
the show cause notice, viz. non payment of fixed upset price
and the land in-question having not been cultivated by the
petitioner has been discussed at length by the learned Single
Judge by assigning the following reason:
"19. In Revenue Case No.49 of 1979, the original order
of grant of land to the present petitioner as amended for
market value and respondent No.4 was cultivating the
land from the year 1971 to 1976 unauthorisedly and,
therefore, the State had made a request for the suit to be
C/CA/2470/2020 ORDER DATED: 23/11/2021
dismissed. The State, by no means, can take a contrary
stand taking a volte face to what it has taken before the
trial Court, thereafter, before the appellate authority and
in the Second Appeal before this Court. Lastly, the
second appeal came to be dismissed on 30.01.1996 being
Second Appeal No.109 of 1995.
19.1 Thereafter, the petitioner had made an application on
24.07.1996, requesting the respondents to hand over the
possession to him. He also made a representation to the
authorities and had gone from post to pillar to ask for his
possession. It is extremely unfortunate that when he
moved such an application, a case was registered of his
breach of condition being SR2/99, which says that though
he had been directed to deposit amount of Rs.8942.64 on
24.07.1981 and he has not paid the amount and he has
not even taken the possession of the land. It is also
alleged against him that he has unauthorisedly given the
possession and is being tilled by respondent No.4.
Respondent No.4 also had given his reply on 19.07.1999
and stated that he has been enjoying this possession from
his ancestor and because of the adverse possession, he
would be entitled to this land.
19.2 The then Deputy Collector on complete
nonapplication of mind or because of his possible
collusion, has disregarded the long drawn litigation, which
resulted into this Court also dismissing the Second Appeal
of respondent No.4 wherein it directed that the land has
to be verified by the State. Since the present petitioner is
not carrying out the activity of agriculture despite the
grant of land to him, this order of 30.11.2000 came to be
challenged before the District Collector, who heard the
parties on 09.08.2005. On the ground of belated filing of
the appeal, the District Collector has chosen essentially not
to entertain the appeal. Additionally, on merit also, she
found that he had not paid the amount till date and,
therefore, also the order of Deputy Collector was
justifiable and worth accepting.
C/CA/2470/2020 ORDER DATED: 23/11/2021
20. This was challenged in the year 2013 by the present
petitioner before the Special Secretary, SSRD. Revision also
has been dismissed upholding the Collector's order on the
ground that he has not paid the amount. The market price
of Rs.9000/- and on the unauthorized possession of
respondent No.4, the Mamlatdar proposed the action and
the Deputy Collector issued notice to the parties and had
confiscated the land. According to SSRD, the land was a
new tenure land. The grantee is not carrying out
agricultural activities and he has not paid the amount,
which he was directed to pay and, therefore, no
interference is desirable.
20.1 Thus, what shockingly emerges on record is that the
petitioner since did not make the payment and had paid
only Rs.57.36 ps, the authorities confiscated the land. He
made a request on 24.07.1996 along with the judgment of
second appeal of the High Court, to hand over the
possession of land alloted to him. Notice was issued by
the Deputy Collector on 20.03.1999 to both the petitioner
and respondent No.4 for breach of condition and as to
why the order of confiscation be not made wherein the
petitioner had objected to any attempt made on the part
of respondent No.4 to claim possession or ownership. Still,
however, the Panchnama was drawn in his presence and
it is alleged that the petitioner himself has assigned the
land in question to respondent No.4 for tilling. The
petitioner insisted that from 1977, the land though granted
to him, actual possession has not been handed over to
him. It is to be deprecated that to shield its own inaction
or collusion of some of its officers at the village level, in
the present petition, by way of affidavit in reply for the
first time, the State has come out with the detail of the
present petitioner having been granted Sathni land bearing
Revenue Survey No.291 admeasuring 2 acre, 73 are and
16 gunthas by an order dated 20.06.1969, entry of which
is Revenue Entry No.938, dated 05.10.1971. It is urged,
therefore, that he is not entitled to the grant that has
C/CA/2470/2020 ORDER DATED: 23/11/2021
been given by the State in the year 1977. Subsequent
revenue entries of Entry Survey No.358 and 353 also,
according to the State, being in the name of present
petitioner, he is not entitled to any grant, which was
meant for scheduled caste person who has no land of his
own.
4.2 The above finding recorded by the learned Single Judge
would clearly disclose that allotee was resisting the claim over
the granted land made by a third party namely respondent
No.4, who had laid his claim for the land in question and was
defending his rights in the said proceedings before the Civil
Court, which ultimately ended in dismissal of the second
appeal filed by 4th respondent herein. Hence, learned Single
Judge has rightly observed that petitioner was prosecuting his
cause before the Civil Court and as such plea of State that
subject land having not been cultivated would not arise.
5. In so far as non payment of fixed upset price namely the
market price of Rs.9000/- fixed by the authorities at the time
of grant having not been paid by petitioners, it has been
noticed by the learned Single Judge that original price was
converted into market price in the year 1979 and reviewed in
the year 1981 by the Collector to make the market price of
Rs.9000/-, and State could not have been oblivious of the fact
that respondent No.4 had chosen to challenge the entire move
of the State by preferring the Civil Suit, where he had joined
the State also as a party and State in the said Civil Suit had
C/CA/2470/2020 ORDER DATED: 23/11/2021
defended its action in allotment of land in question in favour
of the petitioner herein. In that view of the matter the State
cannot take contrary stand, as observed by the learned Single
Judge (relevant portion having been extracted herein above),
said plea would not be available to the State.
5.1 Hence, we are of the considered view that, in so far as,
setting aside the impugned orders dated 30.11.2000,
23.08.2005 and 01.11.2013 passed by the Deputy Collector,
Dholka, Collector, Ahmedabad and SSRD respectively by the
learned Single Judge deserves to be affirmed and upheld and
accordingly it is upheld.
6. However, we have noticed from the impugned order of
the learned Single Judge that State has been directed to ensure
removal of unauthorised encroachment within a period of 8
weeks from the date of receipt of the order and to hand over
physical possession of the land to the petitioner. When prayer
of the petitioner himself was limited to the quashing of the
aforesaid three orders, the learned Single Judge erred in
amplifying the prayer by issuing direction to the State to
remove the alleged unauthorised encroachment, that too within
a stipulated period. In fact, we may notice at this stage that
4th respondent as observed herein above had instituted a Civil
Suit asserting his possession over the land allotted to the
petitioner by the State and this fact was disputed by the
C/CA/2470/2020 ORDER DATED: 23/11/2021
petitioner or in other words he had contended that he was in
possession of the land and had been successful in the Civil
Suit.
6.1 In this background, it cannot be held that State is under
any obligation to remove the encroachment either by the 4 th
respondent or by any third party. It is always open for the
petitioner to take such steps as may be advised for securing
the possession of the said land, if he is not in possession of
said land. In other words, State cannot be directed to hand
over possession of the subject land by removing any
unauthorized encroachment. It is for the allotee i.e. petitioner
to protect his possession of land so granted to him or take
such steps as he deems fit to retrieve the possession of the
property, if he is not in possession of subject land. Hence,
direction issued by the learned Single Judge in paragraph 27
to the effect that respondent - State Authority to remove
encroachment within a period of 8 weeks from the receipt of
copy fo the order cannot be sustained and it stands set-aside.
However, order of the learned Single Judge quashing and
setting aside the order dated 30.11.2000, 23.08.2005 and
01.11.2013 passed by the Deputy Collector, Dholka, Collector,
Ahmedabad and SSRD as well as direction to petitioner to pay
Rs.8942/- with interest @ 9% stands unaltered.
6.2 It is also further noticed from the impugned order that
C/CA/2470/2020 ORDER DATED: 23/11/2021
State has been imposed with cost of Rs.50,000/- to be paid to
petitioner, which we are of the considered view was not
warranted in the circumstances surrounding the case, since the
lis over the subject land was essentially between petitioner and
the 4th respondent and there was a Civil Suit between them as
noted hereinabove and the State had supported the petitioner
and as such the levy of cost or imposition of cost on the State
was not warranted and same cannot be sustained.
7. For the reasons afore-stated, we proceed to pass
following;
ORDER
(1) Appeal is allowed in part.
(2) The order dated 08.05.2018 passed in
Special Civil Application No.4167 of
2014 in so far as setting aside the
orders dated 30.11.2000, 23.08.2005
and 01.11.2013 passed by the Deputy
Collector, Dholka, Collector,
Ahmedabad and revisional authority -
Special Secretary Revenue Department
respectively, stands affirmed. So also
direction issued to the petitioner to pay
Rs.8942/- with the interest @ 9%
stands affirmed.
C/CA/2470/2020 ORDER DATED: 23/11/2021
(3) The direction issued to the State to
remove unauthorised encroachment
within a fixed period of 8 weeks from
date of receipt of copy of order as well
as imposing cost of Rs.50,000/- payable
by the State to the petitioner, is set
aside.
(4) There shall be no order as to costs.
(5) Civil Application No.1 of 2020 (for
stay) does not survive for
consideration. Hence dismissed.
[ Aravind Kumar, CJ ]
[ Hemant M. Prachchhak, J. ]
DRASHTI K. SHUKLA
