SCA/20768/2005 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 20768 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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 ? ========================================================= JETHI MANEKLAL DINALAL & 5 - Petitioner(s) Versus CHANASMA TALUKA ANUSUCHIT JATISAMUDAYIK SAHKARI KHETI MANDLI & 1 - Respondent(s) ========================================================= Appearance : MR JB PARDIWALA for Petitioner(s) : 1 - 6. MR SP MAJMUDAR for Respondent(s) : 1, MR PD BHATE, AGP for Respondent(s) : 2 ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 15/02/2008 ORAL JUDGMENT Heard learned advocates appearing for the parties for final disposal of the petition. SCA/20768/2005 2/5 JUDGMENT 2. Petitioners are original defendants. Respondent Chanasma Taluka Anusuchit Jatisamudayik Sahkari Kheti Mandli was the plaintiff in Regular Civil Suit No.36/05. The dispute pertains lands bearing survey Nos.1015, 992, 304-A, 123, 1266 and 1436 of village Delmel, Taluka Chanasma. It is the case of respondent society that respondent Cooperative Society was alloted the said land by the Collector for cultivation. The petitioners according to the respondent Society were trying to create hindrance in their use and enjoyment of possession of the suit land. They, therefore, filed the suit and also prayed for interim injunction. The Trial Court refused to grant such an injunction upon which the respondent preferred appeal before the appellate Court. The appellate Court by the impugned order dated 23rd September 2005, allowed the injunction as prayed for by the respondent Society. It was provided that the defendants or their agents should not enter the suit lands till the final disposal of the suit nor do they disturb the possession thereof of the cooperative society. 3. Learned advocate Shri Pardiwala for the petitioners submitted that though the petitioners were not in actual lawful possession of the suit lands, when they are found to be in possession of the land as conveyed by the Collector pursuant to the report called for by this Court, they should not be evicted without due process of law. He submitted that the appellate Court committed a grave error in SCA/20768/2005 3/5 JUDGMENT granting injunction in above terms. Learned advocate Shri Majmudar for the respondent society, however, submitted that the petitioners are in unlawful possession of the suit land, that the Collector had allotted the said land for cultivation of the respondent society and the petitioners are not permitting the society to cultivate the land. He, therefore, submitted that the petition should be dismissed. 4. It appears that though the petitioners were the earlier owners of the suit lands, by virtue of agricultural land ceiling proceedings, the suit lands were declared surplus in their hands. By virtue of the Government policy to allot such surplus land to cooperative societies of weaker sections of the society, such lands came to be alloted in favour of the respondent society. To this aspect of the matter, there does not appear to be any serious doubt. Learned advocate Shri Pardiwala though submitted that from the available material on record, he could not state whether the ceiling proceedings have attained finality or not, he however, also could not dispute that the suit lands were allotted by the Collector to the respondent society. In that view of the matter, the fact remains that by the order passed by the competent authority, the land in question has been alloted to the respondent society for its cultivation. Despite this, the petitioners are not permitting the respondent society to cultivate the same. Therefore, their possession is de hors the order passed by the Collector. It may be that the panchanma showing the taking over possession SCA/20768/2005 4/5 JUDGMENT remained only on paper and the petitioners continued in actual possession thereof. Their possession, however, cannot be termed as legal. The Collector should have taken appropriate steps to ensure that the society was put in possession of the land being alloted to it so that the weaker sections of the society who wanted to cultivate the land could do so in peaceful manner. 5. Under the circumstances, though the injunction prayed for by respondent, original plaintiff, could not have been granted since they were not in possession in the first place, the fact remains that the petitioners also continued to enjoy their possession wholly unauthorizedly. Therefore, while I am unable to uphold the appellate order, I cannot restrain myself from requiring the Government to take all necessary steps and measures to ensure that respondent society is put in possession of the suit lands as early as possible after legally evicting the petitioners from the suit lands. 6. It is unfortunate that ceiling law which was enacted to ensure that the excess land in hands of agriculturists owning large tracks of land is allotted to landless labourers and societies comprising of weaker sections of the society, has not met with its avowed object for so many years in the present case. 7. Under the circumstances, the Collector, Patan is directed to take all further necessary steps to ensure that the respondent society is put in SCA/20768/2005 5/5 JUDGMENT actual possession of the land in question after lawfully evicting the petitioners therefrom. With these directions, the petition is disposed of. 8. Thus, impugned order passed by the appellate court is set aside, it is further provided that the steps as provided in para 7 above be taken within 3 months of date of communication of this order. Rule made absolute, subject however to above directions. 9. Learned AGP is requested to convey this order to the concerned authority. (Akil Kureshi, J.) (vjn)