VIPUL KHODIDAS POBARU v. STATE OF GUJARAT

fresh investigation into the complaint of the petitioner.

2. In a nut-shell, the facts which emerge from the record of the petition is to the effect that the petitioner herein filed an application before respondent No.2, inter-alia, contending that the transaction in relation to revenue survey No.111 of Village Madhapar, Taluka District Rajkot bearing old survey No.73 is subjected to perpetual fraud. The petitioner has narrated the whole history of the land in question about the allotment made vide Government Resolution dated 11.1.1968 and has complained of filing a bogus form under the provisions of the Urban Land Ceiling Act and has also further alleged breach of provisions of Saurshtra Gharkhed Tenancy Settlement and Agriculture Land Ordinance, 1949. It is contended by the petitioner that the petitioner has also filed Civil Suits which are pending before the competent Civil Court. It appears from the record that earlier also, the

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petitioner had preferred a writ petition being Special Civil Application No.235 of 2011, wherein this Court (Coram: M.R. Shah, J.) passed the following order on 8.3.2011:-

"Today when the present petition is taken up for further hearing, Ms. Jirgha Jhaveri, learned AGP has stated at the bar that after due inquiry and having been prima facie satisfied, the Deputy Collector, Rajkot has already initiated the proceedings for breach of condition, being Appeal-Gharkhed- 54-Breach of Condition-Case No. 11/2011 and notices have already been issued against the respective affected parties dated 04/03/2011. The same is directed to be taken on record. In view of the above, Shri Majmudar, learned advocate appearing on behalf of the petitioner does not press the present petition as the grievance made in the present petition does not survive. Hence, without expressing anything on merits in favour of either parties, the present Special Civil Application is dismissed as not pressed in view of the subsequent development. Notice is discharged."

3. It further appears from the record that one Mr. Bharatbhai Naranbhai Vegda and others challenged the show cause notice issued by the District Collector under Section 75 of the Saurshtra Gharkhed Tenancy Settlement and

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Agriculture Land Ordinance, 1949 by preferring Special Civil Application No.4370 of 2011. The said petition came to be dismissed by this Court (Coram: M.R. Shah, J.) vide judgment and order dated 7.4.2011.

4. Being aggrieved by the aforesaid judgment and order dated 7.4.2011, the petitioners therein filed Letters Patent Appeal No.798 of 2011, wherein the Division Bench of this Court (Coram: S.J. Mukhopadhaya, C.J. [as he then was] and J.B. Pardiwala, J.) passed the following order on 10.5.2011, whereby the Hon'ble Division Bench was pleased to issue notice in Letters Patent Appeal and dismissed the Civil Application as observed in the aforesaid order.

"Notice on the respondents. Ms. Krina Calla, learned AGP accepts notice on behalf of respondent nos. 1 to 4. Mr. S.P. Majmudar, learned counsel accepts notice on behalf of respondent no.5. Counsel for the appellants to supply copies of paper book on both of them by tomorrow. Direct notice on respondent nos. 6 to 14 through Court and by Speed Post.

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Post the matter on 7^thJuly, 2011. Until further orders, the respondents will not act on the basis of the notice dated 4.3.2011. The appellants are also prohibited from alienating the property in question without prior permission of the Court.

Civil Application stands disposed of."

5. It is further a matter of record which is in fact brought on record by the learned advocate for the petitioner that the said Letters Patent Appeal came to be allowed by the Division Bench of this Court vide judgment and order dated 29.7.2015, wherein the Division Bench of this Court has examined the very said issue and quashed the notice. The Division Bench has observed thus:-

"16. Examining the matter further, it appears that it is an admitted position that the father of the respondent no.5 after having accepted the

consideration, has executed the sale deed and during his life time, he did not raise any grievance for the validity of the transaction nor did he contend that he was under a mistaken belief at the time when the sale deed was executed, but now having realised the said mistake, he is ready to return the consideration. Further, respondent no.5 has also filed Civil Suits after

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death of his father which are pending in the Civil Court where the rights of the parties are yet to be examined. Under these circumstances, it can be said that when the respondent no.5 originated the Government machinery, the bonafide would be lacking since one who is a party to the transaction cannot be heard to say at a later stage that the transaction is not valid that too after a period of about more than 35 years. In any case, respondent no.5 had moved the authority and the impugned action of issuance of show- cause notice has been taken, but when the Court considers the aspect of reasonable period and finds that the exercise of the jurisdiction was barred by delay and the consequential action could be said as without jurisdiction, the question of locus on the part of respondent no.5 may not assume much importance.

17. We may also record that by the impugned notice, the petitioners are called upon to show cause not only for invalidating the transaction under section 54 of the Ordinance, but the further action is also contemplated under section 75, not only for eviction, but to resume the land by the State Government. As per the respondent no.5, the authority had no such power to resume back the said land and as per Mr.Kavina, in view of the similar provision made under the provisions of Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 and the interpretation thereof by this Court, in the decision reported in the case of Govindsingh Ramsinghbhai Vaghela v. G. Subbarao, Asstt. Collector Dholka reported at 1970 GLR 897, the original owner would be entitled to get back the land and not

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the vesting thereof in the State Government.

18. Section 75 of the ordinance provides for the enabling power of summary eviction by the Collector. There are no express powers for forfeiture by the State Government nor there is any express power for re- entrustment of the land to the original owner. If the provisions of section 75 are considered with the provisions of section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948, whenever the legislature wanted, it provided for the entrustment of the land to the transferor or the forfeiture thereof by the State Government. Such is not the language used in section 75 of the Act.

19. We may leave at that without observing further, but in absence of any express language used under section 75 in contradistinction to the language used under section 84 C of the Bombay Tenancy and Agricultural Lands Act, one possible view is that the notice would be ultra vires to the powers under section 75 of the ordinance.

20. In any case, as the notice could be said as without jurisdiction on the ground of delay and laches as per the well settled principles of law, we do not propose to express any final view on the aspect of section 75 of the Ordinance. In any case, examining the matter on the either of the situation, the action of issuance of show-cause notice can be said to be without jurisdiction and hence, the petitioner would be justified in invoking the jurisdiction of this Court under Article 226 of the Constitution.

21. If the matter is examined in light

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of the observations made hereinabove, the impugned notice deserves to be quashed and set aside. Resultantly, the order passed by the learned Single Judge cannot be sustained. Hence, the order passed by the learned Single Judge is set aside. The impugned show cause notice dated 04.03.2011 (Annexure-A) is quashed and set aside.

22. The petition shall stand allowed. Hence, the LPA shall also stand allowed. Considering the facts and circumstances, no order as to costs.

23. Mr.Jadeja, learned counsel appearing for Mr. Majmudar for respondent no.5 after the pronouncement of the order prays that the Civil Suits which are pending before the Civil Court may be decided in accordance with law without being in any manner influenced by the observations made by this Court in the present judgment and he further submitted that the interim stay prohibiting the petitioner to transfer of property be also continued for some time.

24. Considering the facts and circumstances, it is observed that the Civil Court shall be at the liberty to take appropriate decision in accordance with law without being in any manner influenced by the observations made by this Court and on the basis of the material available before it. However, the request for continuation of the prohibitory order is not granted since the initiation of the action is found to be without jurisdiction of this Court. Hence, the said request is declined."

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6. It may be noted that respondent No.4 herein filed a Civil Application being Civil Application No.10767 of 2015 which came to be disposed of by an order dated 5.10.2015 passed by this Court, wherein respondent No.5 was added as party respondent.

7. It is a matter of record that the Civil Suits are pending before the competent Civil Court as observed by this Court in Letters Patent Appeal No.798 of 2011. It is a matter of record that the judgment and order dated 29.7.2015 passed in Letters Patent Appeal was challenged by the petitioner by way of filing a Special Leave Petition being Special Leave Petition (C) No.29190 of 2015 and as pointed out by the learned advocates appearing for the both the sides, the said Special Leave Petition is dismissed vide order dated 16.10.2015 passed by the Hon'ble Supreme Court.

8. On perusal of the impugned order dated

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20.2.2014 at Annexure-FF, it clearly appears that the application filed by the petitioner was considered in the Land Vigilance Committee meeting held on 20.2.2014, wherein at item No.8, the Committee has taken a decision. The Committee has also relied upon the report of DILR and has also taken into consideration the dismissal of the writ petition and pendency of the Letters Patent Appeal and thereafter, has taken the decision to drop the application. The issue as regards the land in question is now squarely covered by the judgment of the Division Bench in the Letters Patent Appeal. It was contended on behalf of the petitioner that the said judgment is rendered only on the ground of delay. However, the fact remains that this Court has already decided the rights of the parties qua the impugned action which was initiated by the respondent authorities under Section 75 of the Saurshtra Gharkhed Tenancy Settlement and Agriculture Land Ordinance, 1949. It is also a matter of record that the

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petitioner asserts rights over the land in question in the Civil Suits which are pending before the competent Civil Court. The scope and ambit of the District Land Vigilance Committee is not as wide as tried to be canvassed by Mr. Jadeja, learned advocate for the petitioner. However, considering the order impugned, it cannot be said that the same is in any manner erroneous, coupled with the fact that this Court has annulled the action taken by the authorities under Section 75 of the Saurshtra Gharkhed Tenancy Settlement and Agriculture Land Ordinance, 1949 which is confirmed by the Hon'ble Supreme Court, as observed hereinabove. However, it is made clear that as per the observations made by the Hon'ble Division Bench in Paragraph 23 of the judgment and order dated 29.7.2015, any observations made in this order shall not affect the rights of the parties as the Civil Court has already been directed by the Hon'ble Division Bench of this Court to decide the Civil Suits in accordance with law

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without being in any manner influenced by any of the observations made in the judgment and order.

9. Resultantly, the impugned orders dated 20.2.2014 and 12.3.2014 do not require any interference in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India. The petition deserves to be dismissed and is hereby dismissed. However, in the facts of this case, there shall be no order as to costs. Notice discharged.

(R.M.CHHAYA, J.)

mrp

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