Shardaben Gopabhai Alias Gopalbhai ... vs State Of Gujarat
2023 Latest Caselaw 8635 Guj

Gujarat High Court

Shardaben Gopabhai Alias Gopalbhai ... vs State Of Gujarat on 13 December, 2023

Author: Nirzar S. Desai

Bench: Nirzar S. Desai

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     C/SCA/20288/2022                                   ORDER DATED: 13/12/2023

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 20288 of 2022
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                      SHARDABEN GOPABHAI ALIAS GOPALBHAI ZALAVADIYA
                                                 Versus
                                           STATE OF GUJARAT
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Appearance:
for the Petitioner(s) No. 1,2,3,4,4.1,4.2,4.3
ADVOCATE NAME DELETED for the Petitioner(s) No. 4
MR DASHRATH N PATEL(2813) for the Petitioner(s) No. 1,2,3,4.1,4.2,4.3
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the Respondent(s) No. 1
MR JAY TRIVEDI, AGP for the Respondent(s) No.1
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  CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
                   Date : 13/12/2023
                    ORAL ORDER

1. This petition filed by the petitioner knowing fully well that the litigation initiated by her father has gone up to the Hon'ble Supreme Court and having failed up to Hon'ble Supreme Court despite that filing of litigation by daughter in respect of the very same land is a classic example of abuse of process of law.

2. By way of this petition, the petitioner has prayed for following reliefs:-

"(A) YOUR LORDSHIPS may be pleased to hold and declare that the action of the respondent authorities in treating the land in question under ULC Act is violative of Article 300-A of the Constitution of India and is violative of the provisions of the Urban Land Ceiling (Repeal) Act and the same is fundamentally without jurisdiction, without authority of law and the same is also violative of Articles 14, 19 (1) (g) and 21 of the Constitution of India:

(B) YOUR LORDSHIPS may be pleased to hold that the provisions of the ULC Act is now not applicable to the land in question of the petitioners in view of repeal of ULC Act

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in the year 1999;

(C) YOUR LORDSHIPS may be pleased to hold that since he petitioners have all throughout remained in physical possession and since the Government has not followed any procedure by taking forceful possession under Section 10 (6) of the Act, the State Government cannot now today disturb the physical possession of the petitioners which has remained uninterrupted all throughout;

(D) During the pendency and final disposal of the present petition, YOUR LORDSHIPS may be pleased to restrain the respondents from taking any further proceedings from today onwards with regard to the land in question of the petitioners;

(E) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case."

3. Heard learned advocate Mr. Jayrajsingh Chauhan for petitioner and learned AGP Mr. Jay Trivedi for respondent- State.

4. As per the facts stated in the petition, the petitioner has stated that father of the petitioners, namely, Gopalbhai Zalavadiya was holding agricultural land bearing Revenue Survey No.36, part - 39/4, 38 and part of 167/2 of village Raiya, District Rajkot. According to the father of the petitioner was having of un-devided share in the aforesaid land alongwith other heirs of Panchabhai Kurjibhai at the time when Urban Land Ceiling Act came into force. Pursuant to which, the father of the petitioner filled up

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the form under Section 6(1) of the ULC Act, and however, ultimately, pursuant to proceedings under ULC Act an order dated 05.04.1986 was passed and a final statement was published in respect of the land held by father of the Gopalbhai Zalavadiya by competent authority and Deputy Collector, ULC, Rajkot.

5. Thereafter, another final statement was published vide order dated 06.05.1987 and the earlier final order was rectified.

6. Pursuant to which, 3910 sq. meters of land was declared excess land and a Notification under Section 10(5) was issued on 10.02.1987.

7. The petitioner as stated in the petition, preferred an appeal before Urban Land Ceiling Tribunal being Appeal No.Rajkot/3/1992.

8. In the aforesaid appeal, the appellate authority vide order dated 21.09.1992 allowed the appeal and remanded the matter back for fresh inquiry and the order passed by competent authority was set aside.

9. According to the petitioner, thereafter, as in the

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revenue record, the name of Government was shown. The petitioner filed a Special Civil Application No.25045 of 2006 before this Court, where the petition preferred by the petitioner was dismissed by the learned Single Judge of this Court vide order dated 17.07.2007 which was carried in appeal by way of preferring Letters Patent Appeal No.1445 of 2008 which was also dismissed vide order dated 24.03.2015 against which the petitioner approached the Hon'ble Supreme Court by way of SLP (Civil) No.2765 of 2015 which was also dismissed by the Hon'ble Supreme Court, vide order dated 05.09.2022. Once the Hon'ble Supreme Court reserved the judgment once the arguments were concluded vide order dated 24.08.2022. This petition was filed and the same was affirmed on 28.08.2022 i.e. after 4 days after the Hon'ble Supreme Court reserved its judgment after arguments were concluded and was presented before this Court on 29.08.2022.

10. For some extraneous reason, the matter was not circulated till October, 2022 and for the first time, it was listed in October, 2022 and for the first time, it was listed on 10.10.2022 i.e. after the SLP of the petitioner was dismissed on 05.09.2022. Thereafter, from time to time, only adjournment was sought and the matter was not

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heard on merit, and hence, today, the matter was heard on merit.

11. Learned advocate Mr. Chauhan appearing for Mr. Dashrath N. Patel did not produce the order of the Hon'ble Supreme Court whereby the SLP of the petitioner was dismissed. However, he informed the Court that the SLP preferred by the petitioner has already been dismissed.

12. Despite the fact that the father of the petitioners had preferred the proceedings for taking back the land by way of Special Civil Application No.25045 of 2006 by way of this petition, another attempt is made to get back the land which has already been vested in government as government has already taken over the possession of land in question by seeking relief in respect of prayers which are absolutely vague and does not give any clarity about any of the orders/proceedings which had gone against the petitioner in the past.

13. Learned advocate Mr. Chauhan for the petitioner submitted that the proceedings undertaken by the father of the petitioner in the year 2006 were the RTS Proceedings, and therefore, in light of the fact that the order passed by

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Urban Land Tribunal, Ahmedabad, dated 21.09.1992 in Appeal No.Rajkot/3/1992, has never been challenged by any of the authority and though by way of aforesaid order, the order passed by competent authority was set aside and matter was remanded back, no fresh decision pursuant to the aforesaid order was taken. Learned advocate Mr. Chauhan submitted that in the meantime, the possession of the land has remained with the petitioners, and therefore, the petitioners have preferred present petition praying for relief which are already reproduced in foregoing paragraph.

14. Learned advocate Mr. Chauhan submitted that the competent authorities order dated 05.04.1986 was set aside by ULC Tribunal vide order dated 21.09.1992, and therefore, once the foundation goes everythings goes, and therefore, the Government is not justified in taking over the possession of the land on the basis of an order which was quashed much before in 1992 before the ULC Act was repealed.

15. Learned advocate Mr. Chauhan further submitted that the petitioner was required to be put back into the possession of the land in question by acting upon the

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order dated 21.09.1992 once the act was repealed as the order of the ULC was in favour of the petitioner.

16. Learned advocate Mr. Chauhan further states that as the order dated 21.09.1992 passed by ULC Tribunal has attend finality as the same was never challenged by the State. The State was expected to act upon the aforesaid order and thereby to put the petitioner back into the possession of land in question.

17. Lastly, it was submitted by learned advocate Mr. Chauhan that vide order dated 21.09.1992 though the matter was remanded back for fresh inquiry and the order of competent authority was quashed and set aside. The same was done on a premise that the present petitioners were entitled to additional unit of land, however, the inquiry was never completed, and therefore, also considering the petitioner entitlement to hold additional parcel of land, the prayer made in the present petition is required to be granted. Except this, no other submissions were made by the petitioner.

18. Learned AGP Mr. Jay Trivedi vehemently opposed the petition and submitted that by way of this petition, the

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legal heirs of the original petitioners are trying to have a 2nd round of litigation despite knowing fully well that they have failed before the Hon'ble Supreme Court as during interregnum period between the Letter Patent Appeal preferred by father of the petitioner was dismissed and as during the pendency of Letters Patent Appeal No.1445 of 2008, father of the petitioner, Gopalbhai Zalavadiya had already expired, and therefore, the name of the present petitioners were joined as legal heirs of the petitioner, Gopalbhai Zalavadiya and in a way they themselves took over the cause of their father Gopalbhai Zalavadiya and proceeded further in respect of litigation in respect of the same land. It was submitted by learned AGP that after having failed before Hon'ble Supreme Court by smart drafting of the petition and by molding a relief in different way the 2nd round of litigation is not permitted.

19. Learned AGP Mr. Trivedi also submitted that as the petitioners were aware about the fact that they have already failed before the Hon'ble Supreme Court the 2 nd round of litigation by the same petitioners despite having knowledge about their failure before the Hon'ble Supreme Court is nothing but an abuse of process of law, and therefore, such practice must be deprecated by imposing

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heavy cost upon the petitioners.

20. From the order passed by learned Single Judge of this Court while dismissing Special Civil Application No.25045 of 2006, it was pointed out by learned AGP Mr. Trivedi that even at the relevant point of time while dismissing the petition, the learned Single Judge of this Court had categorically observed that there is not a single piece of evidence in favour of the petitioner to show and convincing the Court that after the order dated 21.09.1992, possession was taken back by the petitioners. It was also pointed out by learned AGP from the order passed by Division Bench of this Court while dismissing the LPA No.1445 of 2008 whereby the Division Bench of this Court had already observed that even at that point of time when the appeal preferred by the original owner was dismissed, the legal heirs of the original owner i.e. the father of the present petitioner had filed a second appeal which was not maintainable.

21. Though, learned advocate Mr. Chauhan did not produce the order dated 05.09.2022 passed by the Hon'ble Supreme Court in SLP (Civil) No.2765 of 2015. The same was made available to the Court by the Court Master of

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the Court upon instructions and from that it was pointed out by learned AGP that the Hon'ble Supreme Court also has categorically observed that the State Government was justified in holding possession and there appears no error in the mutation entries in favour of the petitioner. Learned AGP Mr. Trivedi also pointed out that the contention of the petitioner about the possession of land is still with the petitioner was not believed by the Hon'ble Supreme Court, and therefore, once the possession of petitioners was not believed by the Hon'ble Supreme Court, the petitioners cannot claim that they are in possession or when the Hon'ble Supreme Court has dismissed their SLP, the petitioners cannot claim that they may be once again put into the possession on the basis of order dated 21.09.1992 as the same was already considered by the Hon'ble Supreme Court while dismissing SLP.

22. By making aforesaid submissions, the learned AGP prayed for dismissal of present petition.

23. I have heard learned advocates for the parties and perused the record. On perusal of record, I found that the present petition is preferred by the legal heirs of Gopalbhai Zalavadiya who was the petitioner of Special

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Civil Application No.25045 of 2006. The aforesaid petition was dismissed by the learned Single Judge of this Court vide order dated 17.07.2007, wherein, while dismissing the aforesaid petition by passing a short order, the learned Single Judge observed as under:-

"1. Present petition is filed praying that:

"28 [B] This Hon'ble Court may be pleased to issue an appropriate writ, order or direction, directing the respondent authorities to delete lands belonging to the petitioner being survey Nos.36 part, 39, 39/4, 38, 39 part and 167-2 part situated at village Raiya, Tal. & Dist> Rajkot from the list of excess vacant lands prepared on 30.03.1999, by the respondent authorities."

2. Learned advocate for the petitioner submitted that by order dated 21.09.1992 passed by the Urban Land Tribunal and Ex-officio Secretary to the Government, Ahmedabad, the appeal was allowed, the case was remanded for fresh inquiry and the order of the competent authority was set aside without there being any order as to costs. The learned advocate submitted that therefore, the possession is deemed to have been returned to the present petitioner.

The submission of the learned advocate is misconceived. The petitioner is not able to point out one single piece of evidence to show and convince the Court that after order dated 21.09.1992, the possession was taken back by the petitioner.

3. Learned advocate for the petitioner placed reliance on a decision of this Court in the matter of RAJKOT MUNICIPAL CORPORATION VS. LAVJIBHAI M.PATEL THROUGH HIS P.O.A HOLDER RAJESH J.DOSHI AND OTHERS, reported in 2000 (3) GLR 2293.

The learned advocate is not able to point out any relevant part of that judgment, hence, the Court declines

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to take the above decision into consideration.

4. In view of above, the present petition is found throughly misconceived and it is dismissed. Notice is discharged with no order as to costs."

24. I have considered the fact that the aforesaid order was carried in appeal by the father of the petitioners, namely, Gopalbhai Zalavadiya by preferring Letters Patent Appeal No.1445 of 2008. However, during pendeny of aforesaid Letters Patent Appeal as informed to the Court by the learned advocate Mr. Chauhan, the original petitioner Gopalbhai Zalavadiya had died, and therefore, the cause agitated by the father of the petitioners was taken over by the petitioners as they were joined as petitioners in capacity of legal heirs of Gopalbhai Panchabhai Zalavadiya. The Division Bench of this Court dismissed the Letters Patent Appeal preferred by the father of the petitioners, vide order dated 24.03.2015, wherein in para-2, the Division Bench of this Court had categorically observed that a Notification under Section 10(5) of ULC Act was published on 10.02.1987, and in para-5, it was observed that upon order of remand (order dated 21.09.1992) the original petitioner and other coparceners were issued notice by the competent authority and no fresh draft statement as contemplated under Section 8(3) or

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final statement as contemplated under Section 8(4) of the ULC Act was issued.

25. The Division Bench of this Court in para-6 observed that on 24.11.1998 the Panchnama was drawn and paper possession of the land in question was taken over.

26. In para-11, the Division Bench of this Court categorically observed as under:-

"11 When the appeal preferred by the original owner was dismissed by the Tribunal, the second appeal by the legal heirs, during the life time of the father, is not maintainable. Therefore, the learned Single Judge has rightly dismissed the writ petition filed by the petitioners."

27. The aforesaid observations made by the Division Bench of this Court indicates that the possession was already taken over from the petitioner in the year 1998 and even at the relevant point of time the appeal of the year 1990 was preferred by the legal heir of the original owner of the land i.e. the father of the petitioners and the same was a 2nd appeal, and therefore, the 2 nd appeal by the legal heir during the life time of the father was held not maintainable, and therefore, the order passed by learned Single Judge of this Court was confirmed by dismissing the Letters Patent Appeal.

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27. Even, the Hon'ble Supreme Court while dismissing the Special Leave Petition preferred by the petitioner in para-16 to 21, the Hon'ble Supreme Court observed as under:-

"16. In absence thereof, the Court has to proceed on the premise as to what will be the legal effect if the State authorities having gone through a procedure prescribed under Section 10 of the Act, 1976 took possession of the subject land on 24th November, 1987 and the payment of compensation in furtherance thereof was made over by order dated 29 th February, 1988 and unless the finding remain undisturbed, the consequential effect would be that the State Government was justified in holding possession and there appears no error in the mutation opened in favour of the State Government.

17. So far as the writ petition filed by the appellants before the learned Single Judge of the High Court is concerned, that was only in reference to restitution of deemed possession because of the order of remand passed by the Land Tribunal in appeal preferred by the co- parceners as referred to in the Order dated 21 st September, 1992 but that has not disturbed the finding returned by the Land Tribunal in the case of the appellants as being reflected from the Order dated 30 th May 1988.

18. That albeit being the factual position emerged from the record, the High Court has rightly dismissed the writ petition and also the letters patent appeal preferred by the appellants in the instant proceedings.

19. The submission made by learned counsel for the appellants that they are in possession of the subject land in question for all practical purposes is not substantiated for the reason that the Tribunal has returned a finding of possession being taken over by the Government, after due compliance of the procedure prescribed under the law on 24th November 1987. Mere statement, without there being any factual foundation, is of no substance.

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20. The further submission made by learned counsel for the appellants that the appellants being the poor agriculturists and this is the only source of their livelihood, we have fully sympathy with the appellants but this Court has to proceed on the basis of pleadings and in accordance with law. Once the land stood vested with the Government on 24th November 1987 and compensation has been made over in furtherance thereof by the competent authority after ascertaining the price of the subject land determined under Section 11 of the Act on 29th February 1988, there appears no justification for the appellants to claim deemed possession of the subject land in question and even if they are in physical possession, no right could be claimed in reference to the subject land by the appellants.

21. Consequently, in our considered view, the appeal fails and is accordingly dismissed. No costs."

28. The aforesaid observations made by the Hon'ble Supreme Court, wherein the present petitioners themselves were a party though in capacity of legal heirs of deceased

-Gopalbhai Zaladiya, the Hon'ble Supreme Court has considered the aspect of whether the petitioners were in possession of land in question or not and what would be the effect of order dated 21.09.1992 and after considering the totality of facts and circumstances, the Hon'ble Supreme Court has dismissed the SLP preferred by the petitioner. What is shocking is the fact that in the petition at page 66 the petitioner has produced the order dated 24.08.2022 whereby the Hon'ble Supreme Court recorded that the arguments are concluded and the matter is

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reserved for judgment in respect of SLP (Civil) No.2765 of 2015 within a period of 4 days thereafter once the judgment was reserved, the present petition was filed and though for the first time it was circulated after the judgment was delivered by the Hon'ble Supreme Court on 05.09.2022 the matter was listed on 10.10.2022 despite that it seems that the aforesaid judgment of the Hon'ble Supreme Court was not placed on record by the advocate appearing for the petitioner for some extraneous reasons. According to this Court, this amounts to suppression as when the matter was circulated and listed for hearing before this Court the very order on the basis of which the entire foundation of this petition was collapsed has not been made available to the Court. Even today also, though it was orally informed to the Court that the Hon'ble Supreme Court has dismissed the SLP. The order was not made available by the advocate for the petitioner.

29. Considering the fact that the issue on hand has already been dealt with by the Hon'ble Supreme Court and claim of the petitioners has been rejected while rejecting the SLP also preferred by the petitioner. This Court is bound by the observations made by the Hon'ble Supreme Court, and therefore, there cannot be any fresh

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adjudication of the matter nor there can be any other view than the view already taken by the Hon'ble Supreme Court is possible. However, this Court is of the view that filing of the present petition when the legal heirs of the original petitioner Gopalbhai Zalavadiay were already a party before the Division Bench of this Court in Latter Patent Appeal No. 1445 of 2008 as well as in the SLP (Civil) No.2765 of 2015, the filing of the 2nd round of litigation by the same legal heirs by smart drafting of the petition and by making vague prayer is nothing but an abuse of process of law, and therefore, the present petition is required to be dismissed with costs. Accordingly, I impose a costs of Rs.50,000/- (Rupees Fifty Thousand Only) upon the petitioners for filing frivolous petition despite the issue has already been adjudicated by the Hon'ble Supreme Court.

30. Resultantly, the petition is dismissed with cost of Rs.50,000/- (Rupees Fifty Thousand Only) to be paid within a period of 8 weeks from today, which may be distributed equally in favour of the Gujarat High Court Legal Aid Committee and Gujarat High Court Advocates Law Library.

(NIRZAR S. DESAI,J) Manoj Kumar Rai