Gujarat High Court

The Collector Of Rajkot vs Bavabhai Karsanbhai Patel Decd. ... on 25 October, 2021

Bench: J.B.Pardiwala

       C/LPA/642/2018                       ORDER DATED: 25/10/2021



        IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

          R/LETTERS PATENT APPEAL NO. 642 of 2018
      In R/SPECIAL CIVIL APPLICATION NO. 3168 of 2005
                             With
        CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
         In R/LETTERS PATENT APPEAL NO. 642 of 2018
===================================================
            THE COLLECTOR OF RAJKOT & 1 other(s)
                            Versus
   BAVABHAI KARSANBHAI PATEL DECD. THRO' HEIRS & 1
                           other(s)
===================================================
Appearance:
MR. CHINTAN DAVE, AGP for the Appellant(s) No. 1,2
MR ANKIT SHAH(6371) for the Respondent(s) No. 1,1.1,1.2,1.3
===================================================
 CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
          and
          HONOURABLE MR. JUSTICE NIRAL R. MEHTA
                       Date : 25/10/2021
                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE NIRAL R. MEHTA)

1) By way of this Appeal under Clause 15 of the Letters

Patent, the appellants (Org. respondents No. 2 & 3) have

preferred this Letters patent Appeal, challenging, inter alia, the

CAV judgment and order dated 21.10.2016 passed in Special Civil

Application No. 3168 of 2005, by which, the learned Single

Judge has allowed the writ application by directing to demarcate

final plots No. 200 and 201 within a period of one month and

also directed to hand over the vacant physical possession to the

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original petitioner.

2) The undisputed facts of the case are as under: -

2.1 The respondent (original petitioner) filed Civil Suit

No. 8 of 1972 before the Court of learned Joint Civil Judge

(S.D.), Rajkot seeking, inter alia, declaration of his

ownership of the land bearing survey No. 345 situated in

Rajkot admeasuring 2 Acres 13 Gunthas. In the very suit,

the orders of the revenue authorities including the Gujarat

Revenue Tribunal also sought to be declared as void. The

said civil suit came to be decreed vide judgment dated

31.03.1980 and the present respondents (Org. petitioner)

was declared the owner of the survey no. 345. In the said

judgment and decree, the order of Gujarat Revenue

Tribunal and the orders of other revenue authorities were

also declared as illegal and not binding to the present

respondents (Org. petitioner).

3) Being aggrieved by the aforesaid judgment and decree, the

appellant preferred the First Appeal No. 491 of 1981 before this

Court. This Court vide judgement and order dated 01.11.2001

partly allowed the appeal by holding that 1 Acre and 16 Gunthas

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of Vonkla bank land are held to be part and parcel of survey No.

345 and is of the ownership of the respondents (Org. petitioner)

and further 37 Gunthas of land are kept for rain water stream. It

was further held that since the respondent (Org. petitioner) has

sold 20 Gunthas of land to one Ravishankar from survey No.

345, admittedly 8 Gunthas are Vonkla land and Vonkla of survey

no. 345 are 37 Gunthas and, therefore, 8 Gunthas of Vonkal land

has been sold to Ravishankar by the respondents (Org. petitioner)

without any title, and thereby, the respondent (Org. petitioner)

was declared as a owner of 1 Acre and 16 Gunthas. The

cumulative effect of the aforesaid judgment and decree is that

the respondents (Org. petitioner) has been declared as a owner of

1 Acre and 8 Gunthas of Vonkla bank land. This, judgment and

decree has not been challenged by the State Government in any

of the higher judicial forum, and therefore, the judgment and

decree has attained its finality.

4) Pursuant to the aforesaid, it appears that the revenue entry

came to be mutated in favour of the respondents (Org. petitioner)

in village form No. 7/12, 8A and Form No. 6 regarding the said

land and the competent authority has also duly certified the said

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entry.

5) With the development of city of Rajkot, the land of the

respondents (Org. petitioner) came within the Municipal limits of

Rajkot City. On finalization of Town Planning scheme No. 5 of

Rajkot, a very land was allotted Final Plots No. 200 and 201 and

its area was shown as 4629 sq mtrs instead of 4856 sq mtrs as

held by the High Court. It appears that on 05.06.2002, the

respondents (Org. petitioner) made a written representation to the

appellants to handover the physical possession of the Final Plots

No. 200 and 201. It further appears that the Collector initiated

Suo-Moto revision of the order passed by the Mamlatdar pursuant

to the entry that was made in the Register of rights and the

same came to be canceled vide order dated 29.10.2005. Since,

the aforesaid order of the Collector was completely in violation

of the judgment and decree passed in First Appeal No. 491 of

1981, the respondents (Org. petitioner) had initiated the contempt

proceedings and in that contempt proceedings ultimately, a

statement made by the appellants that they would withdraw the

order dated 29.10.2005. It appears that in the said contempt

proceedings, it was submitted by the appellants that the

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judgment and decree passed in First Appeal No. 491 of 1981, the

appellants had suppressed certain factual aspect of having already

disposed of the land, which was part of the subject matter of the

original suit. Thus, while dropping the contempt proceedings, this

Court has granted a liberty to appellants to approach to move an

appropriate application in the proceedings of the First Appeal No.

491 of 1981 by resorting the appropriate remedy.

6) It appears that the appellants filed a review application on

22.04.2008, which, finally came to be disposed of vide order of

this Court dated 05.04.2011 by holding, inter alia, that if such

application is allowed, it would amount to reopening the original

dispute, which occurred about 40 years back and has been

resolved 10 years back and ultimately, the review was dismissed.

7) It also appears that the appellants preferred an SLP in the

Hon'ble Supreme Court against the aforementioned order,

however, the SLP came to be dismissed on 08.12.2014.

8) It appears that thereafter, the respondents (Org. petitioner)

made a representation to the authorities for allotment and

handing over the peaceful and physical possession of land bearing

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Final Plots No. 200 and 201 of Town Planning Scheme No. 5 of

Rajkot City. The authorities have did not pay any heed, and

thereby, the writ petition came to be preferred against the

appellants for their dereliction of duty on the party of public

servants.

9) The learned Single Judge, in that writ application, passed

the impugned judgment, wherein the prayer, as sought for, by

the respondents (Org. petitioner) came to be allowed. Thus,

under that order and facts and circumstances, the appellants

approached this Court by way of filing this appeal.

10) Mr. Chintan Dave, the learned Assistant Government

Pleader appearing for the appellants sought to challenge the

impugned order on the following grounds as stated in the memo

of the appeal, which are as under:-

" A. That the impugned judgment and order is unjust, contrary to the evidence on record and therefore, the same deserved to be quashed and set aside.

B. The Hon'ble Court erred in not considering the fact that there was serious dispute question of the fact wherein involve in the matter and same cannot be adjudicated without performing party to adduce evidence and full fledged consideration of evidence.

C. The Hon'ble Court erred in not considering the fact that petition filed by the original petitioner on the Article 226 was

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not maintainable and as original petitioner was any non implementation or partly non implementation of judgment and decree of Hon'ble Court.

D. That even otherwise, the impugned decision is contrary to the evidence on record, unjust, improper illegal, and therefore, this Hon'ble Court may be pleased to interfere with the present case.

11) In response to, Mr. Ankit Shah, the learned counsel

appearing for the respondents (Org. petitioner) has vehemently

opposed this appeal mainly on all counts and mainly submitted

that the present appeal at the instance of State is nothing but a

device to prolong the litigation and harass the respondents (Org.

petitioner).

12) We have heard the learned advocates for the respective

parties and have gone through the records and proceedings

forming part of this appeal.

13) No further submissions and contentions raised by the

parties except above.

14) In our view this appeal at the instance of State Government

is nothing but a frivolous litigation with a clear and loud object

to defeat the rights of the respondents (org. petitioner), which

are accrued in their favour by succeeding at all stages.

         C/LPA/642/2018                                     ORDER DATED: 25/10/2021



15)      In our considered opinion, the learned Single Judge has

rightly dealt with the contention of the maintainability of writ

petition, more particularly, in paragraph No. 29.1, which reads

thus;

29.1 In the process of allotment of final plots, the respondent Urban Development authorities have drawn up Form-D as required under the Act. Perusal of this form available at pages 12A, 12B & 12C shows that in the ownership column, names of the petitioner as well as the Collector, Rajkot have been written. However, a note is given in column No.4 wherein it has been recorded that final ownership will be subject to decision of the High Court in the petition pending litigation. It will be relevant to note that the Civil Suit was pending in the trial Court since 1972 and thereafter the Court delivered its judgment and decree on 31.3.1980 and thereafter First Appeal No.491 of 1981 was pending in the High Court which came to be decided on 01.11.2001. The aforementioned facts leave no doubt that on the date when Form-D was drawn up, rights of the parties were not yet crystallized and accordingly the respondent Corporation has given a note that final ownership will be subject to decision of the High Court. The State has not preferred any appeal or revision against the order in the First Appeal till 2008, meaning thereby, they have accepted the order. In the year 2008, State machinery swung into action and preferred review of the order in First Appeal which came to be dismissed on 05.04.2011. SLP preferred against this decision is also dismissed on 08.12.2014. Once the highest Court of the country has put its seal of approval on the judgment passed by the High Court in First Appeal No.491 of 1981 decided on 01.11.2001, clearly stating the land going to the share of each party, hardly there will be any further dispute of the ownership or location of the land. Under these circumstances, the petitioner was within his rights to approach this Court seeking the reliefs claimed.

16) Additionally, it is also profitable to take note that the

impugned judgment is of 21.10.2016 and this Appeal appears to

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have been filed in the year 2018. It further appears from the

record that no notice till today has been issued by this Court and

it is the learned Assistant Government Pleader, at whose

instance, the matter was being adjourned time to time.

Therefore, in our view, filing of an Appeal at the instance of

State Government is not to pursue the same but to keep the

matter pending. We see no good reason why the present Appeal

is filed after a delay of 2 years from the date of judgment and

then, for further 3 years not persuaded effectively.