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Judgment
R.K. Abichandani, J.—In this petition, since the original record of the writ petition was not traceable, the record has been reconstructed
with the assistance of the learned Government Pleader, pursuant to the direction issued by this Court on 19th August, 1997 and the matter has
been heard.
The petitioners seek to challenge order of the Urban Land Ceiling Tribunal dated 14th December, 1989 at Annexure ""F"" to the petition
dismissing the Appeal of the petitioners (Appeal No. 164 of 1987) and confirming the order dated 27-8-1987 of the Competent Authority
declaring 26,432 sq. mtrs. of land of the petitioners as excess vacant land, and the notice dated 21-2-1994 at Annexure ""G"" to the petition issued
u/s 10(5) by the respondent No. 2 seeking to take possession on 28-2-1994, claiming that they are not holding any excess land and that they are
entitled to exemption u/s 20 of the Urban Land (Ceiling and Regulation) Act, 1976 in respect of Revenue Survey Nos. 80/2 and 91/1 of village
Nana Varachha, Tal. Choryasi, Dist. Surat. A direction is also sought that the scheme put by the petitioners u/s 21(1) for the land bearing survey
No. 71 should not be cancelled and that the said land ought not to be considered in the holding of the petitioners.
At the hearing of this petition, the learned Counsel Mr. Jariwala, who alongwith learned Counsel Mr. Bachani had filed this petition, has
submitted that the papers were taken away from him by the petitioners. The learned Counsel Mr. Bachani had, on an earlier occasion when the
matter was called out on 27-8-1997 stated that he had appeared at notice stage and thereafter, his junior Mr. K.K. Trivedi had appeared at the
time when Rule was issued and then the papers were taken away by Mr. K.K. Trivedi, which fact is recorded in the order dated 27-8-1997. An
affidavit dated 12-9-1997 has been filed by Mr. Bachani to this effect, in which it is stated that the papers were handed over to Shri Jariwala, the
other Advocate on record. Mr. Jariwala has filed an affidavit stating that the papers were taken away from him as stated by him in his telegram
dated 20th August, 1997 about one and a half years back, with a view to engage Mr. P.M. Thakker. Mr. P.M. Thakker, on being required by
order dated 27-8-1997, has filed a note dated 16-9-1997, stating that having gone through his office record, he is unable to find any such matter in
which he is said to have been engaged by the petitioners of this petition.
The petitioner No. 2 is present and states that the other petitioner Kantilal has gone abroad. He has stated that he leaves the matter on the Court to
render decision in this petition. Therefore, Mr. M C. Shah, who was present representing Mr. Jariwala, was requested to assist the Court in the
hearing of this petition and he has been good enough to argue the petition for the petitioners.
It is contended for the petitioners that on survey No. 71, already construction has taken place and 350 persons are at present residing. There is
nothing on record to show that any such construction exists there. The learned Counsel is not in a position to show as to when such construction
took place. The question involved in this petition is whether that land was rightly treated as part of the holding of the petitioners while computing
vacant land at the relevant time and that cannot be decided on the basis of any subsequent unauthorised constructions.
It is contended by the learned Counsel for the petitioners that if the other two survey Nos. 80/2 and 91/2 were to be treated as agricultural land,
then the question of obtaining any exemption u/s 20 in respect thereof would not arise. It is contended that these two parcels of land could not have
been treated as vacant land since they were predominantly used for agricultural purposes.
The learned Government Pleader appearing for the respondent authorities contended that the petition filed in 1994 for challenging the impugned
order made in 1989 was grossly delayed and should not be entertained. It was also submitted that notifications under Sections 10(1) and 10(3)
have been issued and the lands have vested in the Government free from all encumbrances. It is further argued that Appeal No. 141 of 1994 was
filed by the petitioner No. 1 against the orders which are challenged in this petition. The petitioners having challenged the impugned orders before
the Tribunal and having availed alternative and efficacious remedy are not entitled to maintain this petition. It is also stated that in the Appeal No.
141 of 1994, which the petitioners had filed before the Urban Land Tribunal, a xerox copy of a certified copy of judgment said to have been
delivered on 13-9-1995 in the present petition was produced, though the present petition has all along been pending and no such judgment was
ever delivered. It was submitted that since no one except the petitioners were to benefit by filing a forged judgment in the name of this Court, these
petitioners should be held to be persons who are not fit to carry the writ of this Court. It is submitted that it is because of the alertness of the
Competent Authority and the Deputy Collector, Surat, who addressed a letter dated 21-4-1997 to the Government and endorsed to the learned
Government Pleader and the High Court a copy of which is placed on record, that it could be found out that no such judgment was delivered in
this petition and that it was still pending. The learned Government Pleader submitted that, therefore, enquiries were made and it was found that in
the appeal which filed against the impugned notice dated 21-2-1994 before the U.L.T., a xerox copy of a purported certified copy of judgment
said to have been delivered in this writ petition on 13-9-1995 was produced, on the strength of which the U.L.T. remanded the matter by its order
dated July, 1996, stating that keeping in view the decision of the High Court dated 13-9-1995, the proceedings were closed and the subordinate
authority was directed to proceed further as per the decision of the High Court. There is no dispute about the fact that no such decision was ever
rendered by this Court and this petition has been pending as per the record of the High Court, the computer slip and also as per the record of the
office of the learned Government Pleader and even according to the learned Counsel who appeared for the petitioners. Even the petitioner No. 2
who is present, stated that he was not aware of the petition having been already decided. The learned Government Pleader, therefore, submitted
that the petitioners are not fit persons to be entrusted with the writ of this Court and the petition should be dismissed on the ground that they have
indulged in such malpractices.
It is clear that the petitioners are seeking to challenge the impugned order at Annexure ""F"" passed by the U.L.T., on 14-12-1989 in a petition,
which has been filed in March, 1994. The challenge against the impugned order is, therefore, grossly delayed and can never be entertained. Even
the challenge against the order of the U.L.T. in Appeal No. 810 of 1984 which was filed against the order dated 30-3-1984 by which the scheme
u/s 21(2) was cancelled, is grossly delayed because that order was made on 21-11-1987. The impugned orders were made in lawful exercise of
the jurisdiction of the concerned authority and they are speaking orders made for valid reasons. Such belated challenge against these orders cannot
be entertained by this Court in its writ powers. The challenge against the consequential notice at Annexure ""G"" would therefore, fail.
The contention that in view of the pendency of the application u/s 20 of the Urban Land Ceiling Act, the lands in respect of which such
application was made, could not have been declared as excess vacant land, is wholly misconceived. It has been found by the U.L.T. in its
impugned order dated 14-9-1989 that there was nothing on record to show that any such application was made in respect of survey Nos. 80/2
and 91/1, as alleged by the petitioners. It was found that both these survey Nos. were in the residential zone and on perusal of the record, there
did not appear any application u/s 20 having been made. The Supreme Court in Smt. Darothi Clare Parreira and others Vs. State of Maharashtra
and others, has in terms held that having regard to the scheme of the Act, it cannot be said that until the application u/s 20 or 21 is considered and
disposed of, the Competent Authority has no power to have the Notification u/s 10(3) vesting the excess land in the Government, published.
Therefore, even on merits, the petitioners have no case at all. The petition, therefore, deserves to be rejected and is hereby rejected. Rule is
discharged with no order as to costs.
As noted above, it has been brought to the notice of this Court, which fact is also taken note of in the earlier orders of this Court dated 19th
August, 1997 and 27th August, 1997, that though this matter has been pending and no hearing had taken place, nor any decision rendered until
now, a decision dated 13-9-1995 purported to have been delivered in this petition is falsely created and a xerox copy of a certified copy of that
decision was produced before the U.L.T. in Appeal No. 141 of 1994. In that appeal, Advocate Mr. Jariwala filed his appearance on 2-12-1994
(Page 11 of the file of that Appeal before U.L.T.). Later on Advocate Ms. Rannaben H. Patel had appeared (Page 57 of the file of that Appeal
before U.L.T.). The original file of those proceedings was called for, by the earlier orders, which were made in this petition. The learned U.L.T.
and Ex-officio Secretary, Revenue Department who appeared before this Court, submitted communication dated 26th August, 1997, and placed
on record therewith the original file of the appeal proceedings before him. In his said letter addressed to the Assistant Registrar, he has stated that
on the day of hearing, Advocate Ms. Rannaben H. Patel, remained present and submitted a xerox copy of the judgment dated 29-11-1995 (being
the date which is written in the xerox copy of the certified copy on its page 3 below the fake judgment where the words ""By order of the Court.
Sd/- K.A. Master for Deputy Registrar"" appear. That judgment is at pages 59 - 65 of the file of the U.L.T. and is purported to have been
delivered by me on 13-9-1995. In fact no such judgment was ever delivered in this petition which was pending. The original record of the High
Court judgments of the relevant period has been perused and there was no such judgment delivered on that day.
The Registrar had, pursuant to the directions issued in this regard, submitted a report, in which it is stated that this petition was listed on 18-9-
1995 before Hon''ble Mr. Justice A.N. Divecha, when the new sittings commenced. He has stated that the original petition was not traceable and
he has identified the persons who were responsible for the custody of the papers in his report. He has stated that the record shows that the matter
was pending and that no such decision was rendered on 13-9-1995 nor had anyone made an application for a certified copy of such judgment. It
is also reported that the stamps used in the xerox copy of the certified copy do not appear to be genuine. It is thus clear that someone has created
a xerox copy of a spurious judgment, which was never delivered. On the strength of a xerox copy of a spurious certified copy, the Tribunal has
been misled into making the order dated 23rd July, 1966, which is on page 67 to 69 of the original file of the Tribunal. It is clear that this order has
been passed on the strength of a fake judgment and therefore, ought not to be acted upon. The petitioners were the only persons who were to
benefit by producing such spurious copy of the judgment, which was never delivered in this petition. That xerox copy shows the names of the
Advocate Mr. S.V. Bachani, as having appeared for the petitioner. Ms. Harsha Devani, Assistant Government Pleader''s name is also shown as
having appeared for the respondent authority before this Court. The learned Government Pleader and the said learned Assistant Government
Pleader, who are present, have stated that this matter was never heard and at no point of time and that she had never appeared, as suggested in
this forged document and that the matter had been all along pending.
In this view of the matter, a very serious situation has arisen. By the earlier orders dated 19-8-1997 and 27-8-1997 the petitioners were called
upon to remain present, but only petitioner No. 2 is present before this Court. He states that the petitioner No. 1 has gone abroad. The Advocate
Mr. S.V. Bachani, who appeared before this Court on 27-8-1997 pursuant to the direction given in a notice, which was sent to him to remain
present personally, had displayed peculiar ignorance about the whole episode. He stated before the Court that he did not know anything about the
said judgment said to have been delivered on 13-9-1995. He also stated that the petition never came up for final hearing. He stated that his junior
Mr. K.K. Trivedi had appeared when Rule was issued and papers were handed over to Mr. S.N. Jariwala. Mr. S.N. Jariwala states that papers
were taken away from him by the client. Ms. Rannaben H. Patel, who is also present pursuant to the earlier orders, stated that she appeared
before the U.L.T. in Appeal No. 141 of 1994 of the petitioner at a later stage on 31-5-1996 and that she is not aware of any such certified copy
having been used in that appeal. She stated that she did not produce the said certified copy in that appeal and that the statement of the U.L.T. and
Ex-officio Secretary in his letter dated 26th August, 1997, which was shown to her to the effect that she had submitted the said xerox copy of the
judgment, was not correct.
It is unfortunate that in a matter where a certified copy of a judgment was never issued by the High Court Registry since no such judgment was
delivered, the U.L.T. on the basis of a xerox copy of a fake judgment simply on its being attested by the Executive Magistrate Mr. R.D. Parmar
had chosen to make orders on 23-7-1996 in Appeal No. 141 of 1994. The petitioners and their Counsel at all levels pleaded total ignorance.
Xerox copy of the certified copy which was produced before the Tribunal shows on the third page (file page 65) that one R.D. Parmar had put his
seal of office and signature on 3-1-1996. He has filed his affidavit, pursuant to the earlier order stating that he does not remember who had shown
the certified copy to him while he attested the xerox copy of a certified copy. He has filed an affidavit admitting that he had affixed the original seal
and put his signature on 3-1-1996 on this xerox copy of a certified copy while attesting it. His signature is in original alongwith the seals which he
has affixed. An officer of the rank of Executive Magistrate ought to have known that he could not have attested a xerox copy of a judgment said to
have been issued by the High Court. It is difficult to accept at this stage that all this has happened innocuously. It is also difficult to accept at this
stage that the learned Advocate Mr. Jariwala and Rannaben H. Patel who appeared before the Tribunal were not aware of this xerox copy of
certified copy having been produced before the Tribunal. There was a clear mention of this judgment in the order which was passed by the U.L.T.
on its basis on 23-7-1996 after Ms. Rannaben H. Patel appeared and conducted the Appeal. A copy of that order was sent to all the concerned
parties. It is, therefore, impossible to accept that none of the these persons had known anything about this fake judgment, which was produced
before the Tribunal and which is in the original file of the Tribunal. The Advocates on record Mr. Bachani and Mr. Jariwala and Mr. K.K. Trivedi
who also appeared as junior of Mr. Bachani nor their clerk Mr. Hasmukhbhai Patel seem to be coming out clean with correct facts and they have
been evasive over such a serious matter.
One Kantilal Balmukund Patel, who has given his address as ""Samvad"", Parvati Nagar, Nana Varachha, Surat 395 006, has voluntarily
appeared before the Court, stating that he had purchased a portion of this land from the petitioners. He stated in Court in presence of Ms.
Rannaben H. Patel that he had engaged Ms. Rannaben H. Patel, to appear before the U.L.T. in the said Appeal No. 141 of 1994. That file
contains Vakalatnama dated 2-12-1994 of Shri Sunil N. Jariwala purported to have been singed by Kantilal Nanubhai Patel, i.e., the petitioner
No. 1 and it shows date 28-12-1994 in the left margin. This Vakalatnama is at page 11 of the file. The file also contains another Vakalatnama of
Ms. Rannaben H. Patel dated 31-5-1996 at page 57, which is purported to have been signed by the present petitioner No. 1 Kantilal Nanubhai
Patel. Immediately following her Vakalatnama is the copy of the judgment said to have been produced and which is in the file at pages 59 to 65.
Then comes the order passed by the Tribunal on 23-7-1996 on the basis of the said fake judgment. In that order, it is recorded on the second
page that this judgment was produced on behalf of the appellant.
The matter, therefore, warrants a proper investigation by a responsible agency. The learned Government Pleader also submitted that this
matter requires to be investigated by the C.B.I, and all the culprits are required to be brought to book.
The matter has come to light because of the vigilant eye of the Competent Authority and Additional Collector, who informed the Government
by his letter dated 21-4-1997 that the Computer Information disclosed that this petition was pending and that it appeared that the xerox copy of
the judgment said to have been given in Special Civil Application No. 3322 of 1994, i.e., this petition (which was produced in that office), was not
genuine. Such vigilance on the part of the concerned Officer is appreciated. However, it is unfortunate that the higher authority who dealt with the
appeal should have acted on a xerox copy of the judgment of the High Court. Merely because that xerox copy was attested by the Executive
Magistrate who was an officer of the Collectorate, it did not become a certified copy issued by the High Court. It is only the High Court Registry
which can issue certified copy of its judgments under Chapter XIII of the Gujarat High Court Rules, 1993 and no other authority can lend any
authenticity to the judgments of the High Court. Certified copies of public documents can be given only by a public officer having the custody of
that document in accordance with the provisions of Section 76 of the Evidence Act, 1872 and therefore, it is intriguing as to how a xerox copy of
judgment came to be attested by responsible officers and was noted upon by the Tribunal. The Tribunal, therefore, ought not to have acted upon a
xerox copy of the judgment purported to have been delivered by this Court and should have insisted on a genuine certified copy. The learned
Government Pleader has stated that after earlier interim directions were issued in this petition in this regard, the Government has written to the
Government Pleader on 18-9-1997 that necessary steps are being taken for issuing circulars to all the Heads of the Departments and Officers not
to act on mere xerox copies of the judicial pronouncements. The learned Government Pleader also states that necessary steps are being taken to
initiate action against the concerned officers for attesting the xerox copy of a fake judgment.
13.1. As noted above, Mr. R.D. Parmar, Executive Magistrate, had attested the xerox copy which was produced in the Appeal. The other officer
Mr. S.N. Patel, who was a Deputy Mamlatdar has also stated in his affidavit that he had attested another such copy on the basis of the attestation
made by Mr. R.D. Parmar. It appears that a xerox of the fake judgment attested by him was also produced in the office of Competent Authority
and Deputy Collector and it is therefrom that the concerned officer suspected that it was not a genuine copy since the matter was shown to be
pending in the High Court.
Under the above circumstances, the following directions are issued while dismissing the writ petition:
The Central Bureau of Investigation will investigate into the offences which are committed by forging a judgment in the name of this Court on 13-
9-1995 in this petition, i.e., Special Civil Application No. 3322 of 1994, which is in the original file of the U.L.T. Appeal No. 141 of 1994, which
has been produced before this Court under the forwarding letter dated 26th August, 1997 of Mr. N.C. Dave, who was, at the relevant time
U.L.T. and Secretary of the Revenue Department and at present is Vice-Chairman of G.S.R.T.C. and by using this forged document before the
U.L.T. and similar xerox copy before the Competent Authority and Additional Collector and all other offences connected with these offences
including conspiracy and such other offences which may be unearthed during investigation in this regard.
The investigation should be expeditiously done and completed, preferably within one month from the date of the receipt of this order. On
investigation being completed, the C.B.I, will submit charge-sheet against those who, according to its investigation, ought to be booked in
connection with such offences as are found to have been committed. The C.B.I, will have full access to the record of this petition and the orders
made in it, as also to the file of Appeal No. 141 of 1994 of the U.L.T. produced before this Court by Mr. N.C. Dave, the then U.L.T. under his
letter dated 26th August, 1997. The C.B.I. will have full authority to take custody of the original documents from Mr. N.P. Nair, Section Officer,
who has been directed to keep the custody of the entire record of this petition. They will also have full authority to make all the necessary
investigation from the High Court Registry. The C.B.I, will be free to proceed against all the persons involved including anyone who may be found
to be involved from the Registry, in accordance with law.
The State Government will inform the C.B.I, of this order and a copy of this order will also be despatched forthwith to the C.B.I, by the
Registry.
The State Government will issue necessary orders within one week from today to all the concerned offices, not to rely upon a xerox copy of a
decision of the High Court and to insist on a certified copy thereof, which is issued by the High Court under Chapter XIII of the Gujarat High
Court Rules, 1993 and as per Section 76 of the Evidence Act, 1872. Instructions should also be issued to take immediate action against those
who may be found to have indulged in similar malpractices.
The State Government will independently enquire into such cases and take suitable action to ensure that such forgeries are detected and
Departmental action is taken if any State employees are shown to be involved.
The Registrar has reported that the original papers of this petition are not traceable despite best efforts. It is directed that a regular Departmental
enquiry should be initiated against the members of the staff of the Registry, of whatever rank, who are found to be prima- facie responsible for the
custody of these papers and who have not been able to account for their loss. Such an enquiry should be instituted within two weeks from today.
Enquiry should also be initiated into the prima-facie finding mentioned in the report by the Registrar that the computer is not furnishing
information regarding the final hearing board of Hon''ble Mr. Justice A.N. Divecha, of 18-9-1995 because there was over-writing in the computer
as reported to him. The learned Government Pleader, in this regard, has shown the original register maintained by his office, which indicate that this
petition Special Civil Application No. 3322 of 1994 listed on 18-9-1995 before Hon''ble Mr. Justice A.N. Divecha, at serial No. 164.
Departmental action should also be taken against any person who is prima-facie responsible for this lapse of the relevant computer data being
overwritten and the Registry not being able to retrieve it. This action should also be expeditiously taken.
The Registrar and the Joint Registrar who is in charge of Judicial Department are directed to expeditiously enquire into similar other instances of
fake orders made in the names of other Hon''ble Judges of this Court as per the statement showing 14 fake orders prepared by the learned Law
Officer Mr. Patel as stated by him in Court, and take necessary Departmental and other action, if any of the members of the staff are found to be
prima-facie involved in such forgeries or other malpractices, after obtaining necessary orders from the Hon''ble the Chief Justice.