IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO.2232 OF 1980 For Approval and Signature The Hon'ble Mr. Justice S.K. KESHOTE --------------------------------------------------------- 1. Whether reporters of local papers may be allowed to see the judgment ? 2. To be referred to the reporters 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? --------------------------------------------------------- ISSARDAS TOLARAM VERSUS UNION OF INDIA & ORS. --------------------------------------------------------- Appearance: MR CJ VIN for the Petitioner MR MUKESH PATEL, for Respondent No.2 MR PB MAJMUDAR for Respondent No.3 --------------------------------------------------------- Coram: S.K. Keshote,J Date of decision: 23.12.1996 ORAL JUDGMENT 1. The petitioner, a displaced person, filed this petition before this Court and prayer has been made for quashing and setting aside the order of the respondent No.2 dated 4.4.80, and also for quashing and setting aside the public auction held on 30th and 31st July 1980, so far as the plot in question is concerned. Further prayer has been made for declaration that the petitioner was entitled for allotment of plot straightway as per the rules on fixed value. 2. The facts which led the petitioner to file this Special Civil Application are as follows: The petitioner was allotted a room No.586 situated at Ramnagar colony, Surat by the respondent No.2. The petitioner was paying Rs.13/- as rent to the concerned authorities. It is in fact, not a room as stated by the petitioner, but a tenement. The tenements have been constructed in the year 1950 by the Government for rehabilitation of displaced persons from Pakistan. Subsequently this room (tenement) was offered to the petitioner for purchase and the petitioner accepted that offer and had purchased the aforesaid room in the year 1954 by adjusting his verified claims. In the colony where the aforesaid tenement is situated, certain open plots near and adjacent to the tenements, constructed were decided to be leased out to the displaced persons occupying the house. A piece of land admeasuring 65'x30' near to the tenement No.586 was leased out to the petitioner by respondent No.2 in the year 1961 at the rent of Rs.19.50 per year. It is case of the petitioner that he paid the rent upto year 1966 amounting to Rs.117/- as per receipt dated 17.2.66. It has further been stated by the petitioner that thereafter also he has paid yearly rent of the said plot upto 1974 as per receipt dated 20.7.73. It is also case of the petitioner that in the year 1974 the respondents wanted to cancel the lease of the petitioner of the land aforesaid and of the other 50 such displaced persons of the said colony and therefore alongwith these 50 persons, the petitioner formed an association and represented the matter to the respondent and ultimately the respondent No.2, by its letter dated 30.1.76 agreed to sell the plots in favour of the petitioner and said 50 persons provided they paid increase rent. It is say of the petitioner that the association has been fighting out with the authorities for charging the original lease amount and not to increase the rent and the said litigation is pending with respondent-Government. 3. The respondent No.2, vide its letter dated 4.4.80, informed the petitioner that as he has given up possession of the plot in dispute in the year 1970, his request for allotment of the plot for business cannot be accepted. Though the petitioner has challenged this letter, but he has not filed copy of this document alongwith this Special Civil Application. However, this document is produced by the respondents, alongwith their reply affidavit which is at page 110, as annexure R.6. This letter was sent to the petitioner in connection with his reply dated 11.3.80. The petitioner has come up with the case that no such statement was given to the Circle Inspector by him on 19th March 1983, as alleged, and therefore, he refuted the contents of the said letter by application dated 10.4.80. That application has also not been filed by the petitioner alongwith this Special Civil Application. It is not in dispute that the date of alleged statement made by the petitioner is 11.3.80 and not 19.3.80. 4. Further averments of the petitioner in this Special Civil Application are that a public auction notice dated 11.4.80 was issued by the respondent No.2 for auction of the plot of the petitioner and also for other plots which were not occupied by the displaced persons. The petitioner states that this public auction was objected to by the association and ultimately the respondent No.2 issued another notice of public auction vide notification dated 18.7.80 and the auction was fixed on 30th and 31st July 1980. The petitioner states that he objected to the said public auction by giving representation to respondent No.2 on 23.7.80, but inspite of this representation, auction has been conducted. Objections were invited against sanction of the said public auction by respondent No.2 vide letter dated 1.8.80. The petitioner's case is that he filed objections on 2.8.80 and also approached respondent No.2 on the said date but the respondent No.2 declined to do anything in the matter. Hence this Special Civil Application before this Court. 5. The respondents No.1, 2 and 3 have contested this Special Civil Application. The respondent No.3 is the purchaser of the part of plot in dispute in the open auction. Both the respondents have filed a detailed reply to the Special Civil Application. The petitioner filed further affidavit in the form of rejoinder. The respondents have also filed number of documents. 6. The learned counsel for the petitioner contended that the respondent No.2 has wrongly come to the conclusion that the plot in dispute has been surrendered by the petitioner in the year 1970 and as such his right of consideration for allotment of the plot has been extinguished. The basis of this assumption and presumption of respondent No.2 is incorrect as the petitioner paid the rent of the plot upto year 1974. It has next been contended that as a matter of fact, the petitioner is doing business, in the said plot, of selling milk and keeping Buffaloes. It has further been contended by the learned counsel for the petitioner that value of the said plot at Rs.6,000/- was fixed by the Government and therefore it has to be allotted straightway to the petitioner without holding any public auction. Carrying this contention further, the learned counsel for the petitioner contended that the respondent No.2 has failed to appreciate that the Government has decided to sell the plot straightway to the petitioner and 50 other persons, provided they pay increased rent for which dispute was going on and representations were pending with the Government. Concluding the submissions, the learned counsel for the petitioner contended that the auction of the plots in these facts and circumstances is wholly arbitrary and unjustified. 7. The learned counsel for the respondent No.3 raised a preliminary objection and contended that the petition deserves to be dismissed only on the ground that the petitioner has deliberately and purposely, for his own gains, concealed very very important facts and got the order in his favour in the form of Rule and interim relief, and as such this writ petition deserves to be dismissed only on this ground and the Court may not go on the merits of the case. On merits, the learned counsel for the respondent No.3 contended that the petitioner has no right whatsoever on the land in question though at one point of time the land was given to him on rent, which cannot be said to be a lease hold rights. In the year 1970 the petitioner has given up possession of the land in dispute and subsequently in the year 1974, the rights of the petitioner, may be of tenancy or lease hold as claimed by the petitioner, were terminated by the competent authority, which order has also been affirmed in the appeal. In view of this fact, the claim of the petitioner for allotment of this plot was not tenable. It has next been contended that the petitioner has failed to point out under which provisions of the Displaced Persons (Compensation & Rehabilitation) Act, 1954, the petitioner has a preferential right of allotment of land. The petitioner was a refugee and a displaced person from Pakistan and for rehabilitation of such class of persons a scheme has been framed and undisputedly the petitioner has been allotted a tenement and that may be the accrued right which has already been given to the petitioner. Merely because the lands were lying vacant in the area, and therefore given on rent to the petitioner and he remained in possession thereof for about nine years, will not culminate in any right, much less a preferential right of allotment of the plot to the petitioner. The plots in dispute are the open plots in the area and as such the same are to be disposed of by a public auction. It has next been contended that the petitioner has not objected the auction of the plots. In Special Civil Application, the petitioner has come up with the case that against the public auction notice dated 11.4.80 the association has objected. The petitioner has not filed a copy of the objection filed by the association nor any material on the record to show that he filed any objections against it. Against the next notice of public auction also the petitioner has not made any grievance. The averment made by the petitioner that he made a representation to the respondent No.2 on 23rd July 1980 is also an averment without there being any factual foundation in support thereof. The petitioner did not produced copy of the representation aforesaid, before this Court nor has produced any other evidence on record to show, prove and establish that he made such representation. It is urged by the learned counsel for respondent No.3 that three other auction purchasers of the other parts of the plot were not impleaded as party to this writ petition and as such, this writ petition suffers from the defect of non joinder of necessary parties. Lastly the learned counsel for the respondent No.3 contended that the petitioner's conduct is also of such nature which disentitle him from seeking any equitable relief from this Court under Article 226 of the Constitution of India. After getting favourable interim order from this Court and Rule nisi the petitioner has unauthorisedly entered into possession of the land in dispute and to protect that illegal and unauthorised possession, he approached the Civil Court where he persuaded the Court to grant interim relief by protecting his illegal and unauthorised possession. In the civil suit also the petitioner has not impleaded the respondent No.3 or other three auction purchasers as party thereto. 8. The learned counsel for respondent No.2 supported the contentions which have been made by the learned counsel for respondent No.3. In addition to this, the learned counsel for respondent No.2 contended that the petitioner has no legal right of allotment of land in question. It has further been contended by the learned counsel for respondent No.2 that the petitioner has carried out `Kutchha' construction on the plot in dispute from 25th December 1981 to 27th December 1981 and therefore as notice was issued to the petitioner to demolish that construction, he approached the civil Court and under the Court's order, is continuing in possession. 9. I have given my thoughtful considerations to the submissions made by the learned counsel for the parties. 10. I find sufficient merits in the preliminary objection raised by the learned counsel for respondent No.3 and supported by learned counsel for respondent No.2 that this writ petition deserves to be dismissed only on the ground of suppression of material facts by the petitioner before this Court. To deal with this preliminary objection, relevant facts are to be given which are as under. 11. The Managing Officer, Ramnagar Colony and Assistant Collector, Choryasi Prant, Surat, sent a notice dated 30.11.73 to the petitioner to show cause as to why possession of said plot should not be taken from him and rent as per the rules should not be recovered. That notice was received by the petitioner on 13th December 1973 and he has given his written explanation on 18th December 1973. In the said explanation, the petitioner has given out that he is occupier and owner of the said plot and he has received the said plot for ever. However, during the personal hearing, he had informed that he is not ready and willing to pay the difference of rent. The said plot was leased for `Tabela' (Stable), for keeping Buffaloes, but at that relevant time, it was found that the petitioner was not having any Buffaloes. Said plot was not being used and was lying vacant. The petitioner has not given any proposal for proper use of the said plot. In personal hearing, the petitioner has come up with case that the shed was broken down in flood and thereafter there is only compound and Bamboos are there. Taking into consideration it to be a case where there is no possibility of good use of the said plot and the said plot is kept open for very long period, lease of plot has been ordered to be cancelled by respondent No.2. This order has been made under the provisions of Rule 102 of the Disabled Persons (Compensation & Rehabilitation) Rules, 1955. The authority has further ordered that possession of the said plot should be handed over to the authorities concerned within seven days failing which possession of the said plot would be taken. This order has been made by the authorities on 22nd July 1974. The petitioner filed appeal against this order before the Settlement Commissioner and the Collector, Surat and the same has been dismissed. It is not in dispute that the petitioner has not challenged the aforesaid two orders before any other authority or before this Court. 12. The petitioner has not disclosed these two important facts in the Special Civil Application which were very material and relevant to the controversy. Contrary to it, the petitioner has claimed his right of allotment in this Special Civil Application on the basis of lease hold rights. The petitioner has cleverly drafted the petition and in para 7 of this Special Civil Application, absolutely false statement has been made that in the year 1974 the respondents wanted to cancel the lease of the petitioner. The respondent No.2 has made categorical statement in the reply that the petitioner has concealed the fact of cancellation of lease as well as dismissal of appeal filed against the order of cancellation of lease. The petitioner filed rejoinder to reply of the respondents No.2 and 3 and therein the fact that the lease of the plot in question has been cancelled and the appeal filed by him against the said order has also been dismissed, is not disputed by the petitioner. 13. The second concealment of the fact made by the petitioner is also equally very serious. On 11th March 1980, the petitioner made a statement to the Circle Inspector and in which he admitted that in the year 1970, `Tabela' was demolished and as there was damage to the said `Tabela' he ceased to do business of milk and is doing business of cloth at Sayad. The land is lying vacant and he is not in possession of it and he made further admission that if the said plot is given on sale he is ready and willing to purchase the same. If any other land is given in exchange of plot, the petitioner is ready and willing to accept the same also. The petitioner has not disclosed this fact that he was not in possession of the plot since 1970. The petitioner has admitted this fact that he made such statement which is clearly borne out from his application dated 19.7.96, annexure SR.1, filed by respondent No.3 at page 123. This is an application submitted by the petitioner in which he prayed to the concerned authorities for giving him copy of the statement dated 11.3.80 and the statements of other two witnesses as he wanted to produce those statements before this Court. The fact that the petitioner is not in possession of the plot since 1970 was very much relevant and material fact to which the controversy was raised by the petitioner, which has deliberately been suppressed by him from this Court. In writ petition, the petitioner has not stated that he is in possession of the plot or possession of the plot still continues with him. So far as the statement dated 11th March 1980 is concerned, the petitioner has made a false statement before this Court that no such statement was given by him to the Circle Inspector. 14. There is also a third concealment of the fact made by the petitioner which is also very serious. The petitioner has admitted in rejoinder that the plot in question was divided into four plots and they were sold to four persons. The petitioner has not disclosed this fact in the Special Civil Application and further he has not made the other three auction purchasers, party in this writ petition. 15. The next concealment of fact is also of serious nature. Against the public auction of the plot fixed on 28th and 29th April 1980, the petitioner, though as per his case made representation through association and on the said representation, the Government has given a stay order staying the public auction on those dates, subsequently, that representation was rejected by the Government and the Government ordered to sell those plots in public auction and interim orders or stay orders were vacated by the Government vide letter No.PLT 1080/46543-R dated 11.7.80 which is clearly stated in the public auction notice dated 18.7.80. The petitioner has not only concealed this fact, but on the contrary he made false statement in the writ petition that his case was pending for sale of the plot with the Government and public auction of only remaining open plots of land was declared by respondent No.2 on 11.7.80. The stay which has been granted by the State Government has been vacated on 11.7.80, which fact as stated earlier, has been concealed by the petitioner. 16. The conduct of the petitioner after filing of this petition is also very important and relevant. This Court has granted interim order in favour of the petitioner directing the respondent-authority not to accept bid from the auction purchasers. In the writ petition, as stated earlier, the petitioner has nowhere stated that he is in possession of the plot and he has not prayed for any injunction against the respondents from dispossessing him from the said plot. After obtaining stay order from this Court, the petitioner has unauthorisedly entered into possession of the plot. He carried out `Kutchha' construction from 25th December 1981 to 27th December 1981, for which a Panch case was made on 29th December 1981, and thereafter a notice was issued by respondent No.2 to the petitioner dated 31st December 1981 to demolish the said illegal construction. The respondent No.2 had gone with Police party to remove the said illegal construction on 21st January 1982 and at that point of time, the petitioner filed civil suit No.66 of 1982 in the Court of learned Civil Judge, (S.D.), in which stay order has been granted in favour of the petitioner. Thereafter this suit has been withdrawn by petitioner and he filed another suit No.397 of 1982 in which also, the Court has granted stay order in favour of petitioner. That interim order has been challenged by respondents No.1 and 2 by filing Misc. Appeal No.147 of 1982, but the said appeal was dismissed. Though it is a different matter that the Civil Court has granted stay order, but it is a fact that the petitioner has not stated that he is in possession of the plot and having any construction thereon, in this Special Civil Application. Copies of the orders passed by the Civil Courts have also been filed by the petitioner on record alongwith rejoinder affidavit and I have gone through those orders. The petitioner has not disclosed these facts before this Court that the suit has been filed by him in the year 1982. Only in the reply, when objection was taken by respondents, he filed those documents in rejoinder. A copy of the plaint of the Civil Suit No.397 of 1982 is filed by respondent No.3 on record and therefrom it is clear that the auction purchasers were not impleaded as party in the suit and the petitioner felt contended only by impleading the respondent-Government as a party. It was the duty of the petitioner to bring all subsequent facts on record which are relevant. 17. It is a case where the petitioner has raised construction of `Kutchha Tabela' on the land after filing this petition. Once the matter was pending before this Court, the petitioner should have maintained Status-quo and this conduct of the petitioner to enter in the possession illegally in the land in dispute is very serious. The land was divided into four plots and the same have been auctioned, though it is a different matter that the possession thereof could not be given to the auction purchasers as the auction was not confirmed under the order of this Court. However, the petitioner has admitted the fact that this plot was divided into four parts and the same was auctioned. The petitioner has taken law in his own hands and has gone to the extent of unauthorisedly entering in possession of the land. This conduct of the petitioner itself is sufficient for dismissal of this writ petition. 18. The petitioner has obtained the order of Rule nisi as well as interim relief in his favour by suppressing material facts from this Court. It is a well settled law that the petitioner is not entitled as a matter of course, to a writ of Mandamus. Even if the Court finds some merits in the contention of the case of the petitioner, it may decline to interfere in the matter under Article 226 of the Constitution of India where it feels that there is no failure of justice in the case. A Reference in this respect may have to the two decision of the Hon'ble Supreme Court in the cases of A.M. Allison v. B.L. Sen, reported in AIR 1957 SC 227 and in the case of Balvant Rai v. M.N. Nagrashna, reported in AIR 1960 SC 407. In the present case, from the facts on record, it is clear that at no point of time the petitioner was interested in purchase of this land. He was not in possession of the land since 1970 and his lease has also been cancelled in the year 1974, and the very fact that thereafter he has not taken up the matter further, concludes the issue that he was satisfied with the cancellation of lease. No right whatsoever of the petitioner was there in the land in dispute and he could have only right to participate in the auction which right also he has not exercised. At one point of time, the grievance has been made by the petitioner before the Government that this land has to be given to him straightway without auction, but the stay order granted to the auction of the plot in question has been vacated and the plot was put to auction. In fact, if the petitioner was really interested in the plot, then he should have participated in the auction and should have put his bid, which he has not done. Admittedly, the plot was