SCA/9858/1999 1/31 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9858 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE R.S.GARG ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= STATE OF GUJARAT - Petitioner Versus JAGUBHAI BHANABHAI PATEL & Anr. - Respondents ========================================================= Appearance : RC KODEKAR AGP for Petitioner(s) : 1, MRS KETTY A MEHTA for Respondent(s) : 1, MR SAURABH AMIN for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.S.GARG Date : 26/03/2007 ORAL JUDGMENT 1. Mr.R.C. Kodekar, learned Assistant Government Pleader, for the petitioner, Mrs.Ketty A. Mehta, learned counsel for the respondent No.1 and Mr.Saurabh Amin, learned SCA/9858/1999 2/31 JUDGMENT counsel for the respondent No.2 are heard. 2. Before I refer to the facts of the case, I must record that present is a case, where, Mrs.Ketty A. Mehta, learned counsel for the respondent No.1 and Mr.Saurabh Amin learned counsel for the respondent No.2, tried their best to mislead this Court by making false statements and misstatements in the Court. With bruised feeling and bleeding heart, I am required to record all what had taken place in the court in presence of Mr.A.J. Patel, Mr.Shital R.Patel, Mr.Dhirendra Mehta, Ms.Neesha Parikh, Dr.Amee Yajnik, learned counsel and each person was listening that how these two advocates, despite repeated warning from the Court, were making false misleading statements to obtain favourable orders. 3. To start, I asked Mr.Amin that whether the order dtd.29/4/1992 (Annexure-B) passed by the Deputy Collector confiscating 17 Acres land in view of the breach of the terms of the allotment order, was ever challenged by the respondent No.2, Mr.Amin said in the open Court that the order was challenged before the Collector, who confirmed it and thereafter, it was challenged before the Secretary, who had set aside the order of confiscation and directed regularization of 32 Acres of land in favour SCA/9858/1999 3/31 JUDGMENT of the respondent No.2. 4. On the other hand, the record shows that in the year 1996, a notice to show cause was issued and in response to that show cause notice, the parties had appeared before the authority and ultimately on 20/9/1996, order of confiscation of entire land was made,thereafter the appeal was dismissed and in the year 1997, revision filed at the instance of respondent No.1, was allowed. In fact, order dtd.29/4/1992 was not challenged by any respondent. 5. Even after going through the records, Mr.Saurabh Amin, learned counsel for the respondent No.2 did not correct his earlier statement but went on arguing that the respondent No.2 had made an application somewhere in the year 1990 for allotment of the land to the State Government, therefore, they were entitled to the said allotment. 6. I again asked Mr.Amin that applications submitted by the respondent No.1 or by the respondent No.2, if were not considered by the authority before confiscation of 17 Acres of land and if the parties were aggrieved by non- consideration of their application, why did they not challenge the order dtd.29/4/1992 directing confiscation SCA/9858/1999 4/31 JUDGMENT of 17 Acres of land. It was submitted by Mr.Amin that the Secretary had passed an order after taking into consideration the application made by the respondent No.2. 7. I asked Mr.Amin, learned counsel for the respondent No.2 that if the order dtd.29/4/1992 was not challenged by the respondent No.2 or order dtd.20/9/1996 passed by the Deputy Collector confiscating further 15 Acres of land, was not challenged by the respondent No.2 and challenge in the revision filed by the respondent No.1 was confined to resumption of 78 Acres land only, then, how could the Secretary in his revisional jurisdiction hold that the land be given to the respondent No.2 after taking premium and imposition of fine, Mr.Amin, learned counsel submitted that the facts were brought to the notice of the Secretary and he was entitled to pass such an order. 8. On the other hand, Mrs.Ketty Mehta, learned counsel for the respondent No.1 submitted that the respondent No.1 never challenged the first order directing confiscation of 17 Acres of land or second order directing confiscation of 15 Acres of land, as he was interested in saving 78 Acres land only. 9. I asked Mr.Amin, learned counsel for the respondent No.2 SCA/9858/1999 5/31 JUDGMENT that prior to permission by the competent officer in relation to sale, alienation or transfer, how could the possession of 17 Acres of land be given to the respondent No.2, Mr.Amin, learned counsel submitted that because the respondent No.2 had submitted an application for allotment and had filed an application seeking permission to purchase, they had entered upon the possession. On being pointedly asked that under what authority of law, the respondent No.2 entered upon 17 Acres of land, Mr.Amin, learned counsel conceded that it was illegal act and possession was also illegal. I asked Mr.Amin, learned counsel for the respondent No.2 that on face of the order dtd.29/4/1992 how could the respondent No.1 again sell and hand over possession of 15 Acres land in the year 1996 to the respondent No.2 even without obtaining permission from the competent authority, Mr.Amin learned counsel simply submitted that as the respondent No.2 was in need of the land and they thought that as their application for allotment / permission to transfer was pending and there was very likelihood of post facto sanction, the respondent No.2 took possession of the property. It is not disputed before me that on the said 32 Acres land, respondent No.2 without permission from any SCA/9858/1999 6/31 JUDGMENT authority or without any title over the property, has raised huge construction. 10.I asked Mrs.Mehta, learned counsel for the respondent No.1 that without permission from the competent authority how could the respondent No.1 part with the possession of 17 Acres of land, her reply was that the land was new tenure and impartiable but was not inalienable, therefore, they could transfer it. On being asked that how could the land of new tenure be divided and part possession be given to somebody she admitted that in view of sec.43 of the Bombay Tenancy and Agricultural Lands Act, action of the respondent No.1 in handing over the possession of 17 Acres of land prior to 1990 was absolutely illegal and bad. When the Court asked her how could further 15 Acres of land be transferred in favour of the respondent No.2, she firstly submitted that there was no sale, but after going thorough the order passed by the Deputy Collector and the authority, she withdrew her submission and stated that 15 Acres of land was also sold was a correct fact. On being asked that if on the first occasion, illegal transfer of 17 Acres of land was not regularized and the land was forfeited, then, why further 15 Acres of land was sold SCA/9858/1999 7/31 JUDGMENT without permission of the authority, she was absolutely inarticulate and had no reply and simply submitted that it was a wrong committed by the allottee (respondent No.1), however, she submitted that the said 32 Acres of land could not be put to profitable agricultural operations because of the water logging, therefore, the respondent No.1 was entitled to sell the land. On being asked that if this particular parcel of 32 Acres of land was allowed to them for agricultural purposes and if they found that the land was not good for agricultural purposes, instead of selling it, why they did not surrender the land back to the State Government, she simply said that there was nothing wrong in transferring 32 Acres land, if it could not be put to agricultural operations. 11.When I asked her that how could the case of respondent No.2 be taken up for consideration by the Secretary in his revisional jurisdiction in the revision filed by the respondent No.1, she made a bold statement that the respondent No.2 had also filed an appeal before the Collector and a revision before the Secretary. She asked me to refer to page Nos.25 and 32 of the docket, I showed her the cause title of each of the matter, the appeal, before the Collector, was filed by the respondent SCA/9858/1999 8/31 JUDGMENT No.1 against the State Government and present respondent No.2 was not even joined as party - respondent No.2 in the said appeal before the Collector. This was a deliberate false and misstatement to mislead this Court to obtain a favourable order. 12.I asked her to refer to page No.32 to show me that whether the respondent No.2 was a party appellant in the matter or had filed any other revision, after going through the said cause title and the body of the judgment, she had to swallow her words and this time submitted before the Court that the present respondent No.2 did not file any revision, however, she went on arguing that as the present respondent No.2 was joined as respondent No.2, the Secretary was entitled to pass an order in their favour. 13.I am sorry to record that if senior counsel practicing in this Court for long many years do not understand the distinction between the petitioner, appellant or the respondent, then this Court cannot help them. Before making a statement, a senior counsel or even a junior counsel must verify from the records that the statements made by them are correct and, truthful and , are not based on their impression or otherwise. SCA/9858/1999 9/31 JUDGMENT 14.In the present matter, the conduct of Mrs.Ketty Mehta, learned counsel for the respondent No.1, with due apology to her, was not fare to the Court. At every stage, she was making misstatement and when the Court confronted her with the correct situation, her observations were “Your Lordships is right”. When the Court said that instead of giving a certificate to the Judge that he is right, a counsel must justify her conduct, she made yet another statement that 'the facts appear to be true'. Upto this time, she was not ready and willing to realise her mistake and withdraw all her words or either regret before the Court or say a word of sorry, but when the Court said that this conduct may lead to a notice under Contempt of Courts Act or a notice to the Bar Council to take action against her, then, realising the consequences she said that she was sorry. I am really sorry to record the manner in which Mrs.Ketty Mehta, learned counsel for the respondent No.1 and Mr.Amin learned counsel for the respondent No.2 have conducted themselves. 15. A Court is simply not run by Judges, Court always works with the assistance of the lawyers. Judges are good or bad, if the lawyers consider them to be good or bad. A SCA/9858/1999 10/31 JUDGMENT Judge can never say that he is good or bad because he is always Judged by the lawyers. Introspection and self assessment is the first requirement for a lawyer, if this is a requirement for a judge. The lawyers when appear in the court, they must be throughly prepared with the matter, they must have their notes with them, they must have their chronological list of dates and events, they must have facts on their fingertips, they must know the law, they must read the law and understand it, so that they can narrate correct facts and explain the law to the Judges, they must be prepared to answer even an inconvenient question, because, a lawyer is not to sail only in the safe water. Judges may have different temperament but the lawyers are supposed to assist the Judge, because they represent the case and cause of a person sitting on the last bench in the Court, specially when such man sitting on the last bench relies upon goodness, fairness, wisdom and understanding of the lawyer. A Judge has to decide the matter in accordance with law so also with the assistance provided to him by the lawyers. If the rotten material is supplied to a judge, he cannot be condemned that he has returned back the rotten material. If lawyer wants a good judgment, the SCA/9858/1999 11/31 JUDGMENT lawyer must provide good assistance to the Judge. A judge would always be happy in receiving a lawyer who is a good assistance in the court. A Judge may not say that he is sorry, but, in fact, he would be sorry if the lawyer becomes liability in the court. 16.A statement at bar is always to be relied upon. When a lawyer opens his mouth and says that what is what, then a Judge is not required to verify the statement from the records. The Moment a Judge is required to verify the statement from the records to confirm what a counsel says, then, the sense of responsibility and reciprocity are broken. If a Judge does not rely upon the lawyer, but every time verifies the facts from the records, then the lawyer cannot provide any assistance. A lawyer is a gem in the ring of the court and if such a gem is not worth, then such gem would have no value in the Court. On the other hand, lawyers are good jewelers in the Judging the Judges. They have to assist the Judge. The lawyers who make misstatement in the court, who are not ready with the facts of the case, who have not read the law, who have not understood the law and are not in a position to assist the Judge, then such lawyers are really a burden. 17.I am sorry to record all this, but I really have undergone SCA/9858/1999 12/31 JUDGMENT a great pain. 18.From the facts of the case, it would clearly appear that the land of Survey No.353/A/1 admeasuring 70 Acres and Survey No.434/A/1 admeasuring 40 Acres, in all 110 Acres, was allotted to Hajira Apbal Ganotiya Kheti Sahakari Mandali Limited, Hajira, Taluka Choryasi, District Surat, for agricultural purposes, by document dtd.12/3/1960. The land was new tenure and impartiable. Undisputedly, in view of sec.43 of the Tenancy Act, a new tenure or impartiable estate cannot be transferred, sold or alienated by the holder of the land without the permission of the competent authority. The question of the land being inalienable or alienable would not assume any importance, because, the land of new tenure which is impartiable, cannot be transferred without permission of the competent authority. If the land is alienable then too, the permission is required and if the land of new tenure cannot be transferred, then, again the permission would be required for transferring the land under sec.43 of the Tenancy Act. The arguments of Mrs.Ketty Mehta, learned counsel for the respondent No.1 is based upon the argument which was raised before the subordinate authority. It hardly makes any difference that the land is SCA/9858/1999 13/31 JUDGMENT alienable or inalienable in a case of application of sec.43 of the Tenancy Act. Undisputedly the land in dispute is new tenure and impartiable, despite this, the respondent No.1 society transferred the possession of 17 Acres of land in favour of the respondent No.2 and the respondent No.2 readily obliged the respondent No.1 in taking the possession and paying money. To be fair to Mr.Amin, learned counsel for the respondent No.2, I must record that much before the allotment of the land, respondent No.2 had applied to the state Government for allotment of 17 Acres long strip of land as they were in need of the same for industrial purposes. It would be fair with the records to note that such allotment was not made and total 110 Acres of land was allotted in favour of the respondent No.1. After handing over the possession to the respondent No.2, the respondent No.1 on 21/6/1990 made an application to the competent authority that they be allowed to transfer and alienate 17 Acres of land from Survey No.353/A/1 in favour of the respondent No.2. On 19/9/1990, respondent No.2 also made an application to the same authority that 17 Acres land be given to them from Survey No.353/A/1. 19.Mr.Amin, learned counsel for the respondent No.2 SCA/9858/1999 14/31 JUDGMENT submits that they had made an application to the State for allotment of the land, this statement either is a statement without reading the brief or is a misstatement to mislead the court, because once the land was already allotted in favour of the respondent No.1, the respondent No.2 could not make an application to the State Government for allotment of the land. In fact, the application was that as the respondent No.2 needed the land, permission be granted for alienation. 20.After hearing the parties, i.e. respondents, vide order dtd.29/4/1992, the Deputy Collector directed confiscation of 17 Acres land holding that there was breach of condition Nos.7 and 8 of the allotment order, it directed to take over the possession of the land. In the year 1992, such an order was passed and the Government, which, otherwise works very swiftly, has not taken the possession of the said land upto the year 1997 i.e. for more than five years, a person in illegal occupation of the property against whom an order of dispossession was also passed, continued in possession, probably because, he was a protected soul or the State was not ready and willing to dispossess him from the property. 21.It has already been noted that the order dtd.29/4/1992, SCA/9858/1999 15/31 JUDGMENT has not been challenged by anybody till today though Mr.Amin. Learned counsel for the respondent No.2 wanted to submit that the said order was under challenge before the authority, the records, however, would clearly show that the order dtd.29/4/1992 directing confiscation of 17 Acres of land, possession of which was given to the respondent No.2, was never challenged either by the allottee (respondent No.1) or by the respondent No.2 who was in possession. I do not know that why the State and other officers have extended such a helping hand in favour of the respondent No.2. It could be that the respondent No.2 is a big industrial house or there were some other reasons, because, otherwise the State Government is very swift in taking action against the persons who are in illegal occupation of few meters of land, some times, without awaiting the decision from the Court. 22.On face of the order dtd.29/4/1992, where-under 17 Acres of land was confiscated, the respondent No.1 undeterred, undisturbed and unperturbed by anything, considering himself to be above the law or thinking that nobody can bring him to the rule of law, again sold 15 Acres of land in favour of the respondent No.2. This sale SCA/9858/1999 16/31 JUDGMENT was in the teeth of the order dtd.29/4/1992. The possession was handed over in favour of the respondent No.2. Mr.Amin, learned counsel for the respondent No.2, on being asked that under what authority of law the respondent No.2 could take possession, was unable to say anything, except repeating the very same symphony that the respondent No.2 were anticipating grant of land in their favour under the hands of the State Government. The Court asked him that if the land was already allotted in favour of a third party, how could the Government allot the land in favour of the present respondent No.2, Mr.Amin, learned counsel for the respondent No.2 said that they had bona fide belief that the land could be allotted in favour of the respondent No.2. 23.The findings are that the respondent No.1 was continuing in its illegal activities, the government authorities issued a notice to the respondents to show cause as to why the said 15 Acres of land be not forfeited and the remaining 78 Acres of land be also not confiscated in favour of the State. The notice was issued on 16/8/1996 and the matter was directed to be taken up for consideration on 26/8/1996. 24.Mrs.Ketty Mehta, learned counsel for the respondent SCA/9858/1999 17/31 JUDGMENT No.1 submitted that no show cause notice was ever issued to the respondent No.1 and the proceedings were absolutely illegal. When she was confronted with the observations made in the order dtd.29/9/1996 passed by the Deputy Collector, she changed her stand and submitted that her argument was that no notice relating to confiscation of 78 Acres of land was ever issued. I am sorry to record that half truth is worse then total lie. One can go for autopsy on a total lie but when a person tells half truth, he can always change his stance and stand and say that the statement made by the person is to be taken in different manner. The argument, in fact, was that no notice at all was issued and later-on it came to be corrected that no notice in relation to 78 Acres of land was issued. 25.The parties submitted before the Deputy Collector that the land in fact was needed by the respondent No.2 for their industrial purposes and as the land was under water logging, it was not good for cultivation, therefore, the land was sold in favour of the respondent No.2 in anticipation of post facto sanction. I think that I would be justified in observing that in this State, people apply for allotment of land either for agricultural purpose, or for SCA/9858/1999 18/31 JUDGMENT industrial purpose or some other purpose. After the land is allotted in their favour, they would use the land for some time and would, thereafter, make an application for transfer of the land. If such permission is granted, then the land would be sold in the open market at the market rate which notoriously known to everybody is much higher rate touching the sky in comparison to the rate on which the the land was granted by the Government. If particular land is given to a particular person, institution or industrial house for a particular purpose, and in case the purpose is over or the land is not fit for the said purpose, then the land should always be returned back to the Government and such allottee can not be allowed to sell the land in the open market. What was purchased for the songs price cannot be sold at the price of the Orchestra. 26.It is commonly known to everybody that the land for agricultural purpose and industrial purpose are allotted for the songs price, when these parcels of land are not used and are sold in the market, then they obtain price of orchestra. This is regularly happening in this State. I have come across number of cases wherein the permissions have been granted for change of user and alienation. In SCA/9858/1999 19/31 JUDGMENT case where the Government allots certain land to somebody, then they must have some machinery to check and verify that whether such land is put up for that particular use or the allotment is being abused or misused. In the present matter, out of 110 Acres, almost about 32 Acres of land was transferred by the respondent No.1 in favour of the respondent No.2. The action on the part of the respondents was bad, illegal, contrary to law and amounted to a fraud upon on the law and order of allotment. 27.By order dtd.20/9/1996, the Deputy Collector ordered that 15 Acres of land, which was transferred in favour of the respondent No.2 and remaining 78 Acres of land which was with the respondent No.1, should be confiscated and be resumed back respectively. The order relating to 15 Acres of land, which was ordered to be confiscated, was never challenged by anybody. The respondent No.1 had challenged the order dtd.20/9/1996, so far as it directed resumption of balance 78 Acres of land. Undisputedly, the respondent No.2, who