Heirs of Nathalal Jethabhai Damani vs The State of Gujarat

Ms. Bela M. Trivedi, J.(Oral) - Both the petitions were ordered to be heard together as per the order dated 10.09.2014, passed in Special Civil Application No.12605 of 2014.

The subject lands in both the petitions are the lands bearing old Survey No.28, new Survey No.119 (corrected Survey No.126) comprising of Plot No.11 admeasuring 574.42 sq. mtrs., Plot No.29 admeasuring 497.96 sq. mtrs. and Plot No.31 admeasuring 522.43 Sq. Mtrs., of village Mavadi, District Rajkot (hereinafter referred to as "the lands in question" for short). The petitioner Nos.1/1 to 1/4 in Special Civil Application No.9886 of 2007 (hereinafter referred to as ''the first petition'' for short) are the legal heirs of original petitioner Nathalal Jethabhai Damani. The said petitioners are the Respondent No.5.1 to 5.4 in Special Civil Application No.12605 of 2014(hereinafter referred to as ''the second petition'' for short).

The petitioners of the first petition have prayed to issue appropriate writ, order or direction against the respondents to hand over the vacant possession of the lands in question to the petitioners, whereas the petitioners of the second petition have challenged the notices dated 22.08.2014 (Annexure-A colly) issued by the Respondent No.3 Mamlatdar under section 202 of the Bombay Land Revenue Code, 1879 (hereinafter referred to as ''the said Code'' for short) calling upon the said petitioners to remove the encroachments from the land bearing Survey No.126 in view of the orders passed in first petition, and have sought directions against the Respondent Nos.1 to 3 authorities for restraining them from acting upon the said notices and demolishing the houses or constructions made on the plots in question.

The short facts giving rise to these two petitions are that deceased Nathalal Jethabhai Damani, Narendra Jethabhai Damani and Batukbhai Jethabhai Damani were the brothers. As per the case of the petitioners of the first petition, the lands in question were purchased out of the earnings of Shri Batukbhai and Nathabhai, in the name of Shri Narendrabhai by way of registered saledeed executed in the year 1965, as the said two brothers were staying in Sudan. Thereafter, on the Urban Land (Ceiling and Regulation) Act, 1976 (hereinafter referred to as ''the ULC Act'' for short) having come into force, the said Narendrabhai filled in the form No.1 under section 6(1) of the ULC Act, declaring his holdings including the lands in question. The competent authority vide the order dated 31.12.1987 declared the lands in question to be excess vacant land. The said order came to be challenged by Shri Narendrabhai before the ULC Tribunal, who vide the order dated 18.08.1988, dismissed the said Appeal. The said Nathabhai and Batukbhai having come to know about the said orders passed by the ULC Authorities, they filed Review Application under section 34 of the Act before the State Government, who dismissed the same vide the order dated 04.05.1989. The said Nathabhai therefore filed Special Civil Application No.4825 of 1990 before this Court, however, the said petition also came to be dismissed vide the order dated 27.03.1995. The said Nathabhai preferred LPA No.318 of 1995 before the Division Bench, which came to be partly allowed vide the order dated 31.10.1987, whereby the Division Bench set aside the order dated 31.12.1987 passed by the Competent Authority as well as the order dated 04.05.1989 passed by the State Government under section 34 of the said Act and further directed the Competent Authority to decide the matter afresh, treating the lands in question as belonging to the said petitioners, and if necessary, calling upon the said petitioners to submit fresh statements under section 6(1) of the ULC Act, vide the order dated 14.03.2000 (Annexure-A).

The sadi Nathabhai and Batukbhai thereafter approached the competent authority, but the said authority refused to accept the Form No.1 on the ground that the ULC Act had already been repealed. The said petitioners therefore filed Misc. Civil Application No.1879 of 2001 in Letters Patent Appeal No.318 of 1995 for modification of the order passed in the Letters Patent Appeal. The Division Bench again directed the Respondent No.2 to decide the matter afresh under the ULC Act treating the disputed lands as belonging to the said petitioners, vide the order dated 28.12.2001 (Annexure-B). It appears that again the Respondent No.2 did not accept the Form No.1 as sought to be filed by the said petitioners and therefore, the said petitioners filed Misc. Civil Application No.1016 of 2002. The said Misc. Civil Application came to be withdrawn on 30.08.2002 as the Respondent No.2 in the meantime accepted the Form No.1 presented by the said petitioners. It appears that the State Government had also filed Misc. Civil Application No.1066 of 2002 for reviewing the order dated 14.03.2000, however, the said Misc. Civil Application was dismissed by the Division Bench.

The Respondent No.2 thereafter heard the parties and confirmed the earlier order dated 31.12.1987 passed by the Competent Authority as per the order dated 07.09.2002 (Annexure-D). The said petitioners again approached this Court by filing Special Civil Application No.9596 of 2002. The said petitioners also filed the contempt petition being No. Misc. Civil Application No.1840 of 2002. The said Misc. Civil Application came to be withdrawn on the learned AGP making statement that the Respondent no.2 will make fresh order pursuant to the order passed in Letters Patent Appeal (Annexure-E). Ultimately, the Respondent No.2 Competent Authority passed the order dated 05.04.2005 holding that Batukbhai Jethabhai and Nathabhai were entitled to one unit of 1500 sq. mtrs. and there was 32.52 sq. mtrs. of land only as excess vacant land, vide the order dated 05.04.2005 (Annexure-F). The said petitioners thereafter withdrew Special Civil Application No.9564 of 2002 with a liberty of approach this Court in case of difficulty.

It is further case of the petitioners that as per the record of the Government, the lands in question had vested with the Government since 1987 and during the year 1987 till April, 2005 certain persons had entered into the said lands and had made kaccha pakka constructions thereon and therefore, the respondents could not hand over the vacant possession of the said lands in question earlier declared as excess vacant lands, to the petitioners. Since, the respondent authorities also had not taken any step to evict those persons and hand over vacant peaceful possession to the petitioners, the first petition was filed. In the first petition, the Court had issued notices to the respondent authorities on 17.04.2007. Thereafter, all respondents had appeared and filed their reply. The Court thereafter passed the interim orders during 09.07.2010 to 19.10.2015 for removal of encroachments. In the meantime, the alleged encroachers i.e. the petitioners of the second petition filed Civil Application No.10400 of 2007 for their impleadment as party respondents in the first petition. The Court vide order dated 02.02.2009 rejected the said application, against which the said applicants filed Letters Patent Appeal No.156 of 2009. The said Letters Patent Appeal came to be dismissed vide the order dated 16.01.2014.

In the meantime, the Mamlatdar initiated the proceedings against the said applicants/ alleged encroachers under section 61 of the said Code and passed the order on 13.08.2007 calling upon them to remove the encroachments giving reference to the orders passed by the High Court in the first petition. The said orders have been produced by the petitioners as Annexure-P1 collectively. It appears that thereafter the Mamlatdar issued the notices against the said alleged encroachers on 22.08.2014 under section 202 of the said Code. The said notices dated 22.08.2014 have been challenged by the said alleged encroachers by filing the second petition.

The petitioners of the second petition have stated in their petition inter alia that they are residing with their families in the small houses constructed on the lands bearing Survey No.126 of village Mavadi since last more than 25 years. According to the said petitioners, they were allowed to occupy the said small plots by the Respondent Nos.4 and 5 i.e. Narendra Jethabhai Damani and Nathalal Jethbhai Damani, through Respondent Nos.6 to 8 to circumvent the provisions of the ULC Act. According to these petitioners, they were bona fide purchasers of the lands in question and were made victims of the dirty games played by the Respondent Nos.4 to 8. The said petitioners have also produced the affidavit filed by the Respondent No.8 to substantiate their contentions that the Respondent Nos.6 to 8 had sold out the plots in question to the petitioners as per the authority and instructions of the Respondent No.5 Nathalal Jethabhai Damani.

The Respondent Nos.4 and 5/1 to 5/4 have filed the affidavit in reply in the second petition contending inter alia that the petitioners had suppressed the material facts inasmuch as that the said petitioners had filed Regular Civil Suit No.17 of 1996, Civil Suit No.72 of 2014 as also the Civil Suit No.192 of 2014 against the State authorities and others, however, they having failed to obtain any relief in the said suits, they had filed the present petition by making misleading and false statements on oath. It is also contended that the documents allegedly executed by the Respondent No.6 to 8 were produced for the first time before this Court and were not produced before the Civil Court. The petitioners and the respondents have also filed their respective further affidavits in support of their contentions.

It is sought to be submitted by learned Senior Counsel Shri Y.N. Oza appearing with learned Advocate Shri Rajesh Savjani for the petitioners in the first petition that the lands in question had vested in State Government since 1987 on the same having been declared as the vacant lands as per the earlier order of the Competent Authority, however, as per the subsequent order of Competent Authority, the said lands being no more excess vacant lands, the petitioners are entitled to get back the possession thereof. He further submitted that there being encroachments on the said lands made by the petitioners of the second petition, the State Government was bound to remove the said encroachments and restore the possession of the said lands to the petitioners. He also submitted that the petitioners of the second petition, who are the encroachers, had suppressed the material facts from this Court by not disclosing their filing of various suits in respect of the subject lands, and their failure to obtain any relief in the said suits from the Civil Court. Mr. Oza also drew the attention of the Court to the various interim orders passed by this Court directing the respondent authorities to take necessary actions. He also drew the attention of the Court about the observations made by the Court while rejecting the application of the said alleged encroachers i.e. the petitioners of the second petition for being impleaded as party respondents in the first petition and submitted that the Court had already held that the said petitioners did not have any right on the subject lands.

However, learned Senior Counsel Shri Shalin Mehta appearing with learned Advocate Shri Anand B. Gogia for the petitioners in the second petition submitted that the said petitioners had become the victims of the dirty games played by the Respondent Nos.4 to 8. According to him eventhough, possession of the lands in question was taken over by the Respondent State Authorities, the respondent Nos.4 and 5 had sold out the lands to the respondent Nos.6 to 8, who in turn had further sold out the same to the petitioners. He further submitted that the State Authorities were forced to take action against the petitioners of the second petition, in view of the interim orders passed by the Court in the first petition filed by the Respondent No.5, otherwise the lands in question being not Government land, no action could have been initiated by the respondent authorities under section 202 of the said Code. He further submitted that the impugned notices issued by the Mamlatdar under section 202 of the said Code being without any authority of law, deserve to be quashed and set aside. He also submitted that nondisclosure of filing of the suits by the petitioners could not be said to be suppression of material facts inasmuch as in none of the suits the impugned notices, which are the subject matter of second petition, were challenged. Relying upon the various judgments of the Supreme Court, he submitted that the question of res judicata also did not arise as there was no adjudication on issue relating to the title and possession between the petitioners and the Respondent Nos.4 and 5 in any Civil Court or in any other Court, and that the observations made by the Division Bench in the Letters Patent Appeal were only in respect of the issue whether the petitioners should have been joined as party respondents in the first petition or not.

After having heard learned Counsels for the parties in both the petitions and having taken into consideration the documents on record, it appears that the petitioners of both the petitions have tried to misuse the process of law by filing the proceedings and taking the Courts for a ride. As stated herein above, the second petition being Special Civil Application No.12605 of 2014 has been filed by the petitioners challenging the impugned notices issued by the Mamlatdar under section 202 of the said Code. The said notices appear to have been issued in view of the interim orders passed by this Court in the first petition. The main contention raised by Shri Mehta therefore was that the respondent authorities had taken the action against the petitioners under the pressure of the Court, though the petitioners of the first petition themselves had not come with clean hands, and though the petitioners of second petition had filed the Civil suits before the Competent Courts against the respondent authorities and also the said petitioners of first petition. It was also sought to be submitted by Mr. Mehta that the petitioners were inducted at the instance of the petitioners of the first petition through the Respondent No.6 to 8, and in respect of which the Respondent No.8 has also filed the affidavit. In the opinion of the Court, though there is some substance in the said submissions made by Shri Mehta for the petitioners of the second petition, the Court is not inclined to accept the same, in view of the contentions raised by Shri Oza for the Respondent Nos.4 and 5 in the second petition to the effect that the said petitioners had not disclosed the correct facts in their petition, more particularly about their filing of the Civil Suits and not obtaining of any interim orders in the said suits from the Civil Court.

It is needless to say that the petitioners invoking extraordinary jurisdiction under Article 226 of the Constitution of India are bound to disclose true and correct facts and cannot play hide and seek with the Court. It transpires from the affidavit in reply filed by the Respondent Nos.4 and 5 of the second petition that the petitioners had filed Regular Civil Suit No.1517 of 1996, Suit No.72 of 2014 and Civil Suit No.192 of 2014 in respect of the lands in question against the respondent authorities and also against the private respondents and had also tried to obtain interim reliefs pending the said suits, however, the said petitioners had not disclosed the said facts in their petition. Even the orders passed by the Mamlatdar under section 61 of the said Code, prior to issuance of the impugned notices under section 202 of the said Code have also not been disclosed. Such suppression of facts being material, the second petition deserves to be dismissed on that ground alone.

So far as the facts of the first petition are concerned, it appears that the petitioners of the said petition right from the beginning had tried to take undue advantage of their own wrongs inasmuch as though the Form No.1 filled in by their brother Narendrabhai Jethabhai under section 6(1) of the ULC Act was already finalized by the competent authority vide the order dated 31.12.1987 and the appeal preferred before the Tribunal was also dismissed by the Tribunal on 18.08.1988, and admittedly thereafter the possession of the lands in question was taken over by the State Authorities in 1988, the said petitioners challenged the order of competent authority seeking review by the Respondent No.1 State under section 34 of the ULC Act contending inter alia that the said Narendrabhai was the Benamidar holder of the said lands and the real owners were the petitioners i.e. deceased Nathabhai Jethabhai and Batukbhai Jetabhai. At this juncture it is required to be noted that apart from the fact that Section 3 of the Benami Transactions (Prohibition) Act, 1988 entailed penal consequences, the said petitioners could not have claimed or taken action to enforce any right in respect of the property held Benami against the persons in whose names the property was held, as per section 4 thereof. In view of such provisions, the claim of the petitioners of the first petition to be the real owners of the lands after the lands had already vested in the Government under the ULC Act, as such was not maintainable. Further, the Respondent No.1 State having rejected the Review Application filed by the said petitioners under section 34 of the ULC Act, the said petitioners had preferred Special Civil Application No.4825 of 1999. The said Special Civil Application came to be rejected by the learned Single Judge by concluding that the said petitioners were not entitled to get any relief in view of Benami Transcation Act in any proceedings. Of course, in the Letters Patent Appeal filed by the said petitioners, the Division Bench had set aside the order of learned Single Judge and also the order dated 31.12.1987 passed by the Competent Authority and Additional Collector, as also the order dated 04.05.1989 passed by the State Government under section 34 of the ULC Act and directed the Competent Authority and Additional Collector to decide the matter afresh under the ULC Act vide the order dated 14.03.2000.

Since, the ULC Act was already repealed by that time, it appears that the said order was modified by the Division Bench vide the order dated 28.12.2001, and the Additional Collector (Coordination), Rajkot, who was appointed by the State Government for the purpose of taking care of the proceedings to be performed under the ULC Repeal Act, was directed to decide the matter fresh. The said Additional Collector (Coordination), Rajkot vide the order dated 07.09.2002 confirmed the earlier order dated 31.12.1987 passed by the Competent Authority in respect of the form filled in by the said Narendrabhai and not accepted the contentions of the petitioners Nathalal and Batuklal that at the relevant time they were not aware about the provisions of ULC Act, 1976 as they were staying abroad.

At this juncture, it is also required to be noted that if the said two petitioners Nathalal and Batuklal were claiming that the lands in question belonged to them and not to their brother Narendrabhai, as such they were required to fill in the form under the provisions contained in the ULC Act at the relevant time. The plea of ignorance of the existence of the ULC Act on the ground that they were staying abroad, could neither be believed nor accepted. It is also required to be noted that non filing of the Form or the statement under the ULC Act attracted the penal provisions as contained in section 38 of the ULC Act. As such there was no explanation given by the said petitioners at the relevant time as to how they were not aware about the said provisions and about the proceedings filed by their brother Narendrabhai under the ULC Act showing the lands in question as his property.

Be that as it may, the said fact loses its significance in view of the order passed by the Division Bench in the Letters Patent Appeal preferred by the said petitioners, whereby the Additional Collector (Coordination), Rajkot was directed to decide the case afresh treating the said lands as the lands of the petitioners. The said authority initially did not accept the claim of the petitioners and confirmed the earlier order passed by the Competent Authority. Being aggrieved by the said decision of the Additional Collector (Coordination), the petitioners had preferred Misc. Civil Application in which the Division Bench again permitted the petitioners to withdraw the said Misc. Civil Application on the learned AGP having made a statement that the Respondent Authorities shall pass the order afresh. Thereafter, the said Respondent Authority i.e. the Additional Collector (Coordination) passed the order dated 05.04.2005 treating the said lands as the lands belonging to the petitioners and granting three units to the three brothers holding that the land admeasuring 32.52 sq. mtrs. only was an excess vacant land.

Again at this juncture, it is required to be noted that as per the case of the petitioners of the first petition, the possession of the lands in question was already taken over by the State authorities in 1987-1988 and since then, it was with the Respondent authorities, however, after the order passed by the Additional Collector (Coordination) in 2005, the possession was not handed over back to the petitioners. This Court fails to understand as to how the proceedings under the ULC Act would have survived when admittedly the lands in question had already vested in the Government and the possession thereof was already taken over by the State Government in 1987-88 i.e. much prior to the enforcement of the Repeal Act. Section 3 of the ULC Repeal Act specifically states that the repeal of Principal Act shall not affect the vesting of any vacant land under sub section 3 of section 10 of the Repeal Act, possession of which has been taken over by the State Government or any person duly authorised by the State Government or by the Competent Authority. Section 4 of the said Repeal Act states that all proceedings relating to any order made or purported to be made under the Principal Act pending immediately before commencement of the Act before any Court, Tribunal or other authority shall abate. In the instant case, the possession of lands having already been taken over after following the due procedure, prior to commencement of the Repeal Act, the lands had stood legally vested in the State Government, and the proceedings relating to any order made or purported to be made under the Principal Act pending immediately before the Court or other authority had also stood abated. Though it is true that even after the repeal of the ULC Act, the Additional Collector (Coordination) had to decide the forms filed by the petitioners, pursuant to the order passed by the Division Bench of this Court, and that in normal course possession would have been restored to the petitioners if the ULC Act was still in force, it is difficult to grant the prayer of the petitioners in the present petition for handing them over the possession of the subject lands, in view of the intervening circumstances and events having taken place and in view of the third party rights having been created on the subject lands. Further, there is also some substance in the submission of Mr. Mehta that even the persons who are in illegal possession of the land for long time, could not be evicted without following the due process of law. It is also true that the State Authorities have taken action against the petitioners of the second petition in view of the interim orders passed by the Court in the first petition, however, it is needless to say that any observation made by the Court in the interim order would be only prima facie observation, and that it is the final decision rendered by the Court after considering the factual and legal aspects, which would govern the rights of the parties.

As stated herein above, the petitioners of the second petition have also filed the suits, which are pending before the concerned Courts. As regards the allegations that they were inducted by the petitioners of the first petition themselves pending the ULC proceedings, the Court does not express any opinion as the same could be examined by the Civil Courts in the pending suits. Suffice is to say that there are number of disputed questions of facts involved in both the petitions, which could not be gone into by this Court in the petitions filed under Article 226 of the Constitution of India. The judgments cited by Mr. Oza on the principles of res judicata and for removal of unauthorised constructions have hardly any application to the peculiar facts of this case and therefore do not deserve any further consideration.

In that view of the matter, both the petitions deserve to be dismissed and are accordingly dismissed. Rule is discharged in both the petitions. Interim relief, earlier granted if any, shall stand vacated in both the petitions.