Lhs Of Decd. Chhaganbhai ... vs State Of Gujarat
2022 Latest Caselaw 1082 Guj

      C/SCA/14730/2021                            JUDGMENT DATED: 02/02/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 14730 of 2021


FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

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1      Whether Reporters of Local Papers may be allowed            Yes
       to see the judgment ?

2      To be referred to the Reporter or not ?                    Yes

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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LHS OF DECD. CHHAGANBHAI MOHANBHAI PARMAR DHRUTIKSHABEN
             NARENDRABHAI CHATURBHAI PARMAR
                          Versus
                    STATE OF GUJARAT
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Appearance:
MR MAULIK NANAVATI, ADVOCATE for MM BEG(8096) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,5
MS DHARITRI PANCHOLI, AGP for the Respondent(s) No. 1, 2 and 3
MR. JAIMIN R DAVE(7022) for the Respondent(s) No. 4
MS HIRVA R DAVE(10742) for the Respondent(s) No. 4
PRIYANK S DAVE(9465) for the Respondent(s) No. 4
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     CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL

                              Date : 02/02/2022
                              ORAL JUDGMENT

1. Heard learned Advocate Mr. Maulik Nanavati for learned Advocate Mr. M.M. Beg for the petitioner, learned AGP Ms. Dharitri Pancholi for the respondent Nos. 1, 2 and 3 and learned Advocate Mr. Jaimin R. Dave with learned Advocate Mr. Priyank S. Dave on behalf of the caveator, respondent No.4 herein.

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2. By way of this petition, the petitioner seeks to challenge an order dated 08.09.2021 passed by the revisional authority i.e. respondent No.2 herein, whereby challenge to an order dated 12.10.2019 by the Collector, Vadodara granting Non-Agricultural Permission with regard to the land in question has been rejected and the original order is confirmed.

3. The controversy is with regard to a land bearing Revenue Block No. 64 (previously Revenue Survey No. 93) situated at village Vemali, Taluka Vadodara, District Vadodara. It appears that the land was of the ownership of one Mohanbhai Parmar and whereas upon his demise the land had devolved upon his legal heir one Shri Chhaganbhai Parmar. It appears that the said Chhaganbhai Parmar had bequeathed the land in question to the mother of the respondent No.4 by way of a Will dated 01.03.2000. It appears that entry with regard to the said Will had been mutated in the revenue records vide Entry No. 1345. It further appears that descendants of late Chhaganbhai Parmar including the mother of the present petitioner but excluding the petitioner herself, had preferred a Civil Suit No. 759 of 2013 before the learned Civil Judge, Vadodara and whereas upon settlement between the plaintiffs and the defendant being mother of the respondent No.4, the suit had been withdrawn. It further appears that the settlement had been reduced in writing and whereas an amount of approximately Rs. 21 Lacs had been paid to the heirs of Chhaganbhai Parmar and further an amount of Rs. 14 Lacs appears to have been paid by respondent No.4 to a third party on behalf of and with consent of legal heirs of late Chhaganbhai Parmar. The suit appears to have been withdrawn vide an order dated 05.10.2019. It appears that since the land in question was of a restricted tenure, therefore the petitioner made an application on 11.07.2017 for removal of such restriction and permitting conversion to unrestricted/old tenure land. The Collector, Vadodara vide an order dated 18.09.2019 had permitted conversion of the land from restricted to unrestricted tenure for

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commercial purpose upon certain conditions and whereas the order further reveals that the respondent No.4 had paid premium of approximately more than 3 Crores to the Government. It further appears that the respondent No.4 had applied for conversion of the land in question into non- agricultural use and whereas the Collector, Vadodara vide an order dated 12.10.2019 had permitted such use.

4. The petitioner claiming to be a descendant of late Chhaganbhai Parmar had challenged the order dated 12.10.2019 permitting conversion of the land to non-agricultural use before the revisional authority. The petitioner had inter alia contended before the revisional authority that since she was not a party to the Civil Suit preferred by her family members including her mother and since she had not received any amount of settlement, therefore she could prefer the revision application. The petitioner had also sought to challenge order of the Collector granting Non- Agricultural Permission on the ground that the respondent No.4 was not an agriculturist and therefore the petitioner had initiated proceedings under Section 84C of the Gujarat Tenancy and Agricultural Lands Act with regard to the order dated 18.09.2019 which permitted conversion of the land to old tenure/unrestricted tenure. The revisional authority vide the order impugned had not accepted the contentions of the petitioner and had rejected the revision application and challenging the same the petitioner has preferred this petition.

5. Learned Advocate Mr. Maulik Nanavati for the petitioner has submitted that the revisional authority has not appreciated one of the most crucial aspects of petitioner's submissions that the original transfer by way of Will between the grandfather of the petitioner and the mother of the respondent No.4 was illegal since the same was in violation of the provisions of the Tenancy Act as held by the Hon'ble Division Bench of

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this Court in Special Civil Application No. 25058 of 2006 which view was confirmed by Hon'ble Apex Court in case of Vinodchandra Sakarlal Kapadia v. State of Gujarat, reported in 2020 SCC OnLine SC 545. Learned Advocate would submit that it is on this aspect of breach of tenancy laws that the petitioner had preferred Tenancy Case No. 42 of 2019. It was submitted that the said case was under Section 84C of the Tenancy Act. It is further submitted that vide Circular dated 03.02.2005, it was clarified by the State Government that in case conversion of the land has been permitted under Section 65 of the Gujarat Land Revenue Code for non-agricultural use, then provisions of Sections 63 and 84C of the Gujarat Tenancy and Agricultural Lands Act would not be applicable to such land. It is further submitted in this regard that granting permission to convert the land into non-agricultural use would infructuate the proceedings preferred by the petitioner under Section 84C of the Gujarat Tenancy and Agricultural Lands Act and therefore the revisional authority ought to have interfered with the impugned order of the Collector.

6. Furthermore, as regards the question of locus, learned Advocate Mr. Nanavati would submit that the petitioner being a descendant of late Chhaganbhai Parmar, had a right to claim over the land in question, more particularly in view of the fact that neither the petitioner was party to the Civil Suit nor the petitioner had settled the issue with respondent No.4. Learned Advocate would further submit that in any case Section 84C of the Gujarat Tenancy and Agricultural Lands Act contemplates initiation of proceedings by the Mamlatdar suo-motu or on the application of any person interested in such land and since the petitioner had initiated proceedings under Section 84C and since the order of the Collector granting Non- Agricultural Permission and the revisional authority confirming the same prejudices the petitioner, more particularly on account of Circular dated 03.02.2005, therefore also the petitioner has locus to initiate the

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proceedings. Learned Advocate Mr. Nanavati has also relied upon the Government Circular dated 16.08.2018 which lays down the procedure to be followed for grant of permission under Section 65 of the Gujarat Land Revenue Code. Learned Advocate draws the attention of this Court to clause 10(a) of the said Circular and submits that the said sub-clause requires a report to be called for by the officer examining the application as regards restriction having been removed recently under Section 43 or Section 63 of the Tenancy Act as to whether any case has been registered in that regard and even if any case is registered, and decision of such case not adversely affect the interest of the Government or any law being violated and in such cases application for Non-Agricultural Permission should be decided within 3 to 7 days. Learned Advocate would submit in this regard that such a report about whether any case had been registered or whether interest of the Government is not adversely effected had not been called for by the authorities concerned, and therefore Non-Agricultural Permission is bad in law.

7. As against the same, learned AGP Ms. Pancholi has strongly opposed the present petition by submitting that the petition at the behest of a person, whose grandfather had bequeathed the land in question in the year 2000 and whose family member including her mother had filed a Civil Suit challenging the said Will which challenge came to be withdrawn upon settlement on payment of money, may not be entertained by this Court. Learned AGP would submit that the petition is nothing but a misuse of the process of the Court, and therefore also the same may not be entertained by this Court. As against the submission with regard to the Clause 10(a) of the Government Circular dated 16.08.2018, learned AGP would submit that this Court may not grant any indulgence in favour of the present petitioner by calling upon the respondents to answer whether any report had been called for or not. Learned AGP would draw the attention of this Court to the order of the

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revisional authority impugned in the present petition, more particularly Para 5.3 thereof where the revisional authority has noted that the Collector having received positive opinion from the various departments as also from the subordinate officers had granted the Non-Agricultural Permission. Learned AGP would submit in this regard that the revisional authority having examined the record had come to such a conclusion and the grievance, if any, of the petitioner appears to be unfounded, since according to the revisional authority, all concerned authorities have given positive opinion which had been examined by the Collector while granting Non- Agricultural Permission, therefore also learned AGP would submit that in addition to the petitioner not having any locus to challenge the order, the Collector had granted the Non-Agricultural Permission after following the procedure, therefore also the present petition may be rejected by this Court.

8. Learned Advocate Mr. Jaimin Dave for the respondent No.4 has also strongly contested the present petition by submitting that the petitioner has no locus whatsoever to prefer the present petition and therefore the same may be rejected. Learned Advocate would submit that grievance of the petitioner was against the Will in question and whereas the petitioner has neither independently challenged the Will nor has obtained any prohibitory or final order against the Will in question from any competent Civil Court, and therefore the petitioner may not be heard to question the consequential action taken by respondent No.4 as a result of original bequeathing of the land. Learned Advocate would submit that grandfather of the petitioner had bequeathed the land in favour of mother of the respondent No.4 in the year 2000 and the Will in question remaining in force, the petitioner has no right, title or interest over the land in question and therefore also she may not be permitted to challenge the order granting Non-Agricultural Permission. Learned Advocate would further submit that proceedings under Section 84C of the Gujarat Tenancy and Agricultural Lands Act and under Section

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65 of the Gujarat Land Revenue Code for grant of Non-Agricultural Permission are two separate provisions and whereas the petitioner cannot be heard to contend that since grant of an order under Section 65 of the Gujarat Land Revenue Code would prejudice her application under Section 84C of the Gujarat Tenancy and Agricultural Lands Act, therefore Non- Agricultural Permission ought not to have been granted. Learned Advocate would further submit that proceedings under Section 84C of the Tenancy Act would be decided on its own merits and the concerned authority would take a decision in accordance with law and merely on the ground of filing of proceedings under Section 84C of the Tenancy Act, the petitioner would have no right to challenge the permission granting non-agricultural use to the land in question. Learned Advocate would further submit that as far as question of respondent No.4 being an agriculturist or not was not a relevant issue which ought to have been considered by the Collector, since the Non- Agricultural Permission is with regard to the land in question and not with regard to the person. Learned Advocate would rely upon a decision of Co- ordinate Bench of this Court in case of Bhayabhai Vajshibhai Hathalia and others v. State of Gujarat and others, reported in 2012 (2) GLR 1741 and submit that as per the law laid down by this Court, Non-Agricultural Permission is relatable to the land and not to the person and moreover since the Will itself having not been challenged by the petitioner, she would be precluded from putting up a challenge to the order of Non-Agricultural Permission.

9. Heard learned Advocates for the parties who have not submitted anything further.

10. At the outset, before the Court considers the issues raised by the respective parties, the following admitted facts need to be stated :

(1) The land in question was of the ownership of the grandfather

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of the petitioner who had bequeathed the land to the mother of respondent No.4 vide a Will dated 01.03.2000. The petitioner has not challenged the said Will before any competent Civil Court.

(2) As of now rights flowing from the said Will appears to be crystallized in favour of the respondent No.4, more particularly since family members of the petitioner, being legal heirs of late Chhaganbhai Parmar having preferred a Civil Suit challenging the Will had subsequently withdrawn the same upon settlement.

(3) Family members i.e. legal heirs of Chhaganbhai Parmar had withdrawn the suit upon settlement, which settlement was on the basis of payment of money to the plaintiffs and to a third party claiming on behalf and with consent of the plaintiffs.

11. The question therefore arises for consideration is whether the petitioner who has not challenged the Will independently before a competent Civil Court and whose family members have challenged the Will and subsequently withdrawn their challenge, ought to be permitted to challenge the consequential action taken upon the land bequeathed to her mother. Relevant it would be at this stage to refer to Para 20 of the decision of this Court in case of Bhayabhai Vajshibhai Hathalia (Supra) which is reproduced hereinbelow for better appreciation, whereby this Court has held that Section 65 of the Gujarat Land Revenue Code does not envisage scope of raising objection and whereas if any party apprehends any prejudice to his title on account of order under Section 65, then the party has to approach a Civil Court for appropriate orders.

"20 Thus, from the aforesaid almost indisputable aspects, this Court is called upon to examine the contentions in respect of the order impugned in this petition. Plain reading of section 65 of the Code in my view would persuade the

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Court to hold that section 65 of the Code does not envisage scope of raising any objection in any party who is not acknowledged right or interest in the land in question. In other words proceedings under section 65 of the Code is not an adversely proceeding at all. If any interested party is apprehending any smart practice on any one in respect of land it can always take recourse to the civil court for obtaining appropriate injunction or prohibitory orders. When the party fails obtaining any appropriate order of injunction or prohibitory order from the competent civil court, then that party, atleast in my view, would not be entitled to seek any prohibitory orders against the person whose name is shown in the revenue record as an occupant. Or else it will lead to a situation where on account of showing semblance of some interest in the land in question or for that matter even substantive interest the party who has not been successful in establishing its right and obtain any prohibitory orders would succeed in thwarting and throatling the occupant of the land in question who is legitimately acknowledged to be occupant by revenue authorities. The N.A. Permission under section 65 cannot be said to be in any manner conferring and or abridging title of any one if it exists in the land in question. It is merely an act of granting permission by the authority qua the piece of land in question. In other words it can well be said that the land which was an agricultural land and it was supposed to put up to agricultural purpose, is decided to be freed from restrictions and permitted to be developed. Thus the permission is attached to the land in question and not to the person. Therefore in my view the interpretation of section 65 of the Code cannot be said to be in any manner rendering it to be adversarial proceedings at all."

12. It clearly appears from the law laid down by this Court that the petitioner has not independently challenged the Will in question and having not obtained any interim or final orders against the Will would not have any right to challenge the Non-Agricultural Permission as regards the land in question. From the above decision, it further appears that unless a person shows some substantive interest or right in the land in question or at least some semblance of interest in the land in question such person could not be

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permitted to question the Non-Agricultural Permission, more particularly since neither Section 65 of the Gujarat Land Revenue Code envisages scope of raising any objection or is the same an adversarial proceeding nor can an order under Section 65 of the Gujarat Land Revenue Code be said to be conferring or abridging title of any person which is existing upon the land in question.

13. Learned Advocate for the petitioner has also made an alternative submission with regard to the locus inasmuch as according to the learned Advocate, the petitioner has initiated proceedings under Section 84C of the Gujarat Tenancy and Agricultural Lands Act and whereas the said Section envisages initiation of proceedings either by the Mamlatdar suo-motu or on application of any person interested in such land. Learned Advocate has submitted that since grant of Non-Agricultural Permission may result in respondent No.4 or anybody claiming through respondent No.4 to invoke the protection under the Government Circular dated 03.02.2005 and since the said Circular states that restriction/proceedings under Sections 63 and 84C of the Gujarat Tenancy and Agricultural Lands Act would not apply to a land where permission under Section 65 of the Bombay Land Revenue Code for non-agricultural use has been granted, therefore the petitioner would get a locus to challenge order under Section 84C of the Gujarat Tenancy and Agricultural Lands Act .

14. As such, this Court is not impressed by the argument advanced by the learned Advocate for the petitioner inasmuch as merely upon initiation of a proceeding under Section 84C Gujarat Tenancy and Agricultural Lands Act, a person would not automatically be entitled to thwart a permission granted by the Collector after following the due process, for N.A. According to the petitioner, since the original transaction i.e. the transaction whereby the land had been bequeathed by grandfather of the petitioner to

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the mother of the respondent No.4 was in violation of the Tenancy Act, therefore the petitioner has initiated proceedings before the Mamlatdar concerned under Section 84C of the Tenancy Act. According to the learned Advocate for the petitioner, since the grant of Non-Agricultural Permission under Section 65 of the Gujarat Land Revenue Code would prejudice his proceedings under Section 84C of the Tenancy Act, he acquires locus to challenge the order passed by the Collector, under Section 65 of the Gujarat Land Revenue Code as confirmed by the revisional authority.

15. As such, in the considered opinion of this Court, the petitioner may not have any right to claim that the petitioner is a person interested in the land in question since the land itself had been bequeathed in the year 2000 and since family members including mother of the petitioner had challenged the Will and had withdrawn such challenge after accepting some consideration, it cannot be said that a person who has been conferred with ownership of a property has to satisfy the demand of each and every persons of the family of the testator or even meet with the demands of persons who have been born after the date of the Will and after the date of death of the testator i.e. the date when the testamentary transfer would come into force. Moreover, the fact of the proceedings under Section 84C being initiated after about two decades of the date and coming into effect of the Will is also relevant fact which cannot be lost sight of. While these observations are not to preclude the rights of the petitioner to contest 84C application preferred by her, but to state that inspite of having preferred an application under Section 84C of the Tenancy Act, the petitioner would not automatically get a right to challenge the order of grant of Non-Agricultural Permission. As such, the title of the respondent No.4 upon the property, as of now, is undisputed. Whether proceedings under Section 84C of the Tenancy Act would result in any adverse orders being passed against the respondent No.4 is a matter of conjecture. That no Court much less a writ

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Court would permit a person to acquire locus on the basis of conjecture or a future contingency.

Again what would be of utmost relevance at this stage would be to appreciate the scope an extent of a proceeding under Section 84C Gujarat Tenancy and Agricultural Lands Act. Section 84C inter alia envisages the Mamlatdar initiating an inquiry sou-motu or upon application of any interested person as to whether a transfer or acquisition of land is or has become invalid under the provisions of the Gujarat Tenancy and Agricultural Lands Act. Further, upon the Mamlatdar coming to a conclusion after inquiry that the transfer was invalid, the land would not automatically vest in favour of the transferor. Rather Section 84C(2) envisages that the Mamlatdar may not declare the transfer invalid upon the parties to the transfer undertaking that status quo ante as prevailing prior to the transfer shall be restored within three months. In case the parties do not undertake to restore the anterior position as above, upon the Mamlardar declaring the transfer invalid, the land shall vest in the State Government, Section 84C(3)(a), and further the amount received by the transferor as sale proceeds shall be forfeited by the State Government, recoverable as arrears of land revenue, Section 84C(3)(b). Appreciating the scope of Section 84C in brief as observed hereinabove, it becomes clear that Section 84C does not envisage automatic restoration of the land in favour of the transferor upon the transfer being invalid. Thus, merely because the petitioner has initiated a proceeding under Section 84C which proceeding does not envisage automatic restoration of the land in favour transferor, upon the transfer being declared invalid, the petitioner would not acquire any locus to challenge an order of conversion, since the same would result in throttling the right of a legitimate occupant of the land in question.

16. At this stage, this Court proposes to rely upon in context of the finding of this Court in the preceding para with regard to locus of the

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petitioner and to further explain another facet of the issue relying upon a proposition as laid down by this Court in case of Rinki Shashikant Gandhi Vs. Mamlardar Vadodara Taluka and Ors., reported in 2012 LawSuit (Guj) 43 which though is stated in context of an issue under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, but in the considered opinion of this Court, the proposition would be applicable with equal force in the present matter. Paras 17, 18, 19 and 20 of the said decision are quoted below for better appreciation.

"[17] This brings us to the very competence of respondent No.4 to file an appeal against the entry evidencing the Sale Deed. Respondent No.4 is the vendor who has executed the Sale Deed willingly, in favour of the petitioner. He has also conveniently pocketed the sale consideration. It appears that after four to five years respondent No.4 suddenly had second thoughts of disputing the very sale transaction to which he is party, on grounds of undue influence and violation of the provisions of the Fragmentation Act. It is noteworthy that there is no material on record to support the grounds of undue influence or inducement, and RTS proceedings are not the appropriate proceedings for such allegations. Under such circumstances, not only is the conduct of the respondent No.4 unethical, it is clearly aimed at seeking some pecuniary advantage from the petitioner, by exerting pressure upon her. Such conduct on the part of a vendor has been deprecated by a Division Bench of this Court in Rameshbhai Ambalal Shah V/s. State of Gujarat (Supra), in the following terms:

"18. xxx xxx xxx We are of the view that the position of law is very clear. Firstly, to maintain a petition under Article 226 or 227 of the Constitution of India, the party aggrieved must show that any of his fundamental rights or any other legal rights have been infringed, and thereby, the party is aggrieved by such infringement. Who can be said to be "a person aggrieved" ? One of the meanings is that "a person will be held to be aggrieved by a decision", if that decision is materially adverse to

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him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again a person is aggrieved, if a legal burden is imposed upon him. Can it be said that the appellants would fall within the words "persons aggrieved" or "a person who has a genuine grievance because an order has been made which prejudicially affects his interest"? On the contrary, this is an appeal by persons who are trying to take advantage of their own wrong. The maxim: "Nullus commodum capere potest de injuria sua propria" (No man can take advantage of his own wrong) is very much applicable in the facts and circumstances of the present case. The maxim: "Nullus commodum capere potest de injuria sua propria" (No man can take advantage of his own wrong) is one of the salient tenets of equity. The appellants cannot secure the assistance of a court of law for enjoying the fruit of their own wrong."

[18] In Smt. Ratnaprabhabai V/s. M/s. Tulsidas V. Patel (Supra) this Court has held that :

"18 xxx xxx xxx It appears that the petitioner having pocketed Rs.1,00,000/- years back in 1962 is trying to catch at a straw and is practically indulging in the policy of dog in the manger by seeing that the hanging sword of the present litigation lingers on so that at sometime respondents Nos.1 and 3 may come round and may given some added financial advantage to the petitioner by way of bargain and if the present proceedings are kept pending, such oblique intention of the petitioner may get fructified. The court obviously cannot be a party to such a design. When the petitioner is not a legally aggrieved party, it is impossible to give her any relief in the present proceedings under Article 227 of the Constitution by restoring these proceedings to the file of the Tribunal so that the transaction entered into by the petitioner in

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favour of respondent No.1 years back in 1962 may once again be brought in the melting pot."

[19] In Letters Patent Appeal No.433 of 2011 in Special Civil Application No.6168 of 2010, decided on 28/04/2011, the Division Bench expressed this view in the penultimate paragraph of the judgment:

"We have been consistently noticing that many persons like the present appellants have started abusing the process of law and have started taking undue advantage of such proceedings, more particularly, in land matters. After entering into a transaction with eyes wide open, knowing fully well that the transaction is in breach of the provisions of the Tenancy Act and after pocketing huge amount when the transaction is declared invalid and subsequently if the purchaser succeeds, the original owner would come before the Court saying that the transaction be declared invalid. Such practice needs to be deprecated."

[20] Considering the above legal and factual aspects of the matter, this Court has no hesitation in concluding that respondent No.4 is not a 'person aggrieved' by the sale transaction. The said respondent is a willing party to the Sale Deed and cannot be permitted to take advantage of his own wrong. He, therefore, had no locus standi to file an appeal after an unreasonable period of time, against the mutation entry evidencing the sale transaction."

17. Appreciating the proposition as laid down by this Court in case of Rinki Shashikant Gandhi (supra), while in the instant case the petitioner had not sold the land in question nor the transaction in question was sale of land, but at the same time the effect of the underlying principle as enunciated by this Court has to be appreciated and applied even in the context of the facts of the present case. The petitioner is trying to draw locus only on the basis of claim that her grandfather was owner of the

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property and he had bequeathed the property to mother of the respondent No.4. According to the petitioner, since such bequeathing by Will was not in accordance with provisions of the Tenancy Act, she had initiated the proceedings under Section 84C of the Tenancy Act, and hence she would acquire locus to challenge the order with regard to conversion of the property. The petitioner, therefore, was essentially drawing her locus by questioning the transaction in the nature of Will by her grandfather prior to her birth and which also took effect prior to the birth of the petitioner on account of death of her grandfather. The proceedings under Section 84C as noted hereinabove, would not confer automatic title upon the petitioner or the transferor even in case the application for setting aside or declaring a transaction as being invalid was granted by the Mamlatdar. Under such circumstances, more particularly since the petitioner is trying to draw a right in her favour on basis of an error in a transaction entered into by way of Will by her grandfather and confirmed by her family members including her mother by settling a Civil Suit preferred by such family members, in the considered opinion of this Court, could not be stated to be a person aggrieved to question the order of conversion, more particularly since the order of conversion neither denies or deprives the present petitioner to some right which she is legally entitled to.

18. At this stage, this Court deems it appropriate to refer to observations of the Hon'ble Apex Court in case of Ritesh Tivari Vs. State of Uttar Pradesh, reported in 2010 (10) SCC 677. Para Nos. 26, 28, 29 and 30 of the said decision being relevant for the present purpose, the same are quoted hereinbelow for benefit.

"26. The power under Article 226 of the Constitution is discretionary and supervisory in nature. It is not issued merely because it is lawful to do so. The extraordinary power in writ jurisdiction does not exist to set right mere errors of law which do not occasion any substantial injustice. A writ can be issued only in

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case of a grave miscarriage of justice or where there has been a flagrant violation of law. The writ court has not only to protect a person from being subjected to a violation of law but also to advance justice and not to thwart it. The Constitution does not place any fetter on the power of the extraordinary jurisdiction but leaves it to the discretion of the court. However, being that the power is discretionary, the court has to balance competing interests, keeping in mind that the interests of justice and public interest are coalesce generally. A court of equity, when exercising its equitable jurisdiction must act so as to prevent perpetration of a legal fraud and promote good faith and equity. An order in equity is one which is equitable to all the parties concerned. Petition can be entertained only after being fully satisfied about the factual statements and not in a casual and cavalier manner. (Vide Champalal Binani Vs. The Commissioner of Income Tax, West Bengal & Ors., AIR 1970 SC 645; Chimajirao Kanhojirao Shrike & Anr. V/s. Oriental Fire and General Insurance Co. Ltd., AIR 2000 SC 2532; LIC of India V/s. Smt. Asha Goel & Anr., AIR 2001 SC 549; The State Financial Corporation & Anr. V/s. M/s. Jagdamba Oil Mills & Anr., AIR 2002 SC 834; Chandra Singh V/s. State of Rajasthan & Anr., AIR 2003 SC 2889; and Punjab Roadways, Moga through its General Manager V/s. Punja Sahib Bus and Transport Co. & Ors, (2010) 5 SCC 235).

(emphasis supplied) xxx xxx xxx

28. In Andhra Pradesh State Financial Corporation V/s. M/s. GAR Re-Rolling Mills & Anr., AIR 1994 SC 2151, this Court observed:-

"Equity is always known to defend the law from clefty evasions and new subtelities invented to evade law."

29. In M.P. Mittal V/s. State of Haryana & Ors., AIR 1984 SC, 1888, this Court held:

".......it is open to the High Court to consider whether, in the exercise of its undoubted discretionary jurisdiction, it should decline relief to such petitioner if the grant of relief would defeat the interests of justice. The Court always has power to refuse relief where the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage or perpetrate an unjust gain."

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30. This Court in State of Maharashtra & Ors. V/s. Prabhu, (1994) 2 SCC 481 considered the scope of equity jurisdiction of the High Court under Article 226 of the Constitution and pointed out as follows:

"It is the responsibility of the High Court as custodian of the Constitution to maintain the social balance by interfering where necessary for sake of justice and refusing to interfere where it is against the social interest and public good.""

19. It is well settled proposition of law that a High Court while exercising jurisdiction under Article 226 of the Constitution of India is a Court of Law and also a Court of Equity. As observed by the Hon'ble Apex Court in the decision of Ritesh Tivari (supra) a Court of equity while exercising its equitable jurisdiction must act so as to prevent perpetration of a legal fraud.

The Hon'ble Apex Court has held that while exercising jurisdiction this Court also is required to decline relief if the grant of relief would defeat the interest of justice and where it appears to the Court that writ jurisdiction is invoked to secure a dishonest advantage and perpetrate an unjust claim.

20. Having regard to the law laid down by the Hon'ble Apex Court and considering the present petition from the context of such observations, this Court is of the considered opinion that relief should be declined in favour of the petitioner, more particularly since it appears to this Court that grant of any relief would defeat the interest of justice, more particularly since the petitioner is invoking writ jurisdiction to secure a dishonest advantage. The mother of the respondent No.4 had been bequeathed with the property by way of a Will by the grandfather of the petitioner even before the petitioner was born and whereas the Will had also taken effect before birth of the petitioner on account of death of grandfather of the petitioner. That other family members including the mother of the petitioner had challenged the Will by filing a Civil Suit and later, upon consideration being paid to them

C/SCA/14730/2021 JUDGMENT DATED: 02/02/2022

had withdrawn the said Civil Suit. The petitioner raising a broad contention that she was not part of the civil litigation and whereas grant of Non- Agricultural Permission might frustrate the proceedings initiated by the petitioner under Section 84C of the Gujarat Tenancy and Agricultural Lands Act, was infact clearly attempting to gain dishonest advantage which cannot be countenanced by a Court while exercising equity jurisdiction. Even for such reason, the petition preferred by the petitioner does not deserve to be entertained.

21. In view of the discussion and findings hereinabove, in the considered opinion of this Court, the petitioner not having challenged the Will in question substantively before a competent Civil Court, and the petitioner not having shown any other substantive right or even a semblance of right in the land in question, the petitioner would not be entitled to invoke extra ordinary jurisdiction of this Court to challenge the decision of the revisional authority confirming the order of the Collector granting Non-Agricultural Permission. Therefore, under such circumstances, the present petition being merit-less deserves to be rejected, hence, rejected.

22. In view of the fact that this Court has come to a conclusion that the petitioner was attempting to gain a dishonest advantage, coupled with the conclusion that the petitioner did not have any locus to challenge the N.A. Permission, in the considered opinion of this Court, costs are required to be imposed. Hence, costs quantified at Rs.25,000/- is imposed on the petitioner and the petitioner is directed to pay the same with the High Court Legal Services Authority within a period of one month from the date of receipt of this order and compliance as regards the same to be reported to the Registry within the said period.

(NIKHIL S. KARIEL,J) BDSONGARA