SCA/8840/1991 1/47 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8840 of 1991 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 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 ? ========================================================= CHANDRAKANT RAICHAND & 9 - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR KM PATEL for MR S TRIPATHY for Petitioners MS REETA CHANDARANA, AGP for Respondent(s) : 1 - 4. ========================================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 02/09/2006 ORAL JUDGMENT 1. By this petition under Article 226 of the Constitution of India the petitioners seek the following reliefs: SCA/8840/1991 2/47 JUDGMENT “[19] Taking into consideration above submissions and such other submissions as may be advanced at the time of hearing, Your Lordships may be pleased to: [A] withdraw the Revision Application No.21 of 1991 from the Respondent No.1 and take the same along with the present Special Civil Application for appropriate decision; [B] issue a writ of certiorari and/or mandamus, a writ or order or direction in the nature of certiorari and/or mandamus, quashing and setting aside the order of the Respondent No.1 dated 6.12.1991; [BB] Issue a Writ of certiorari and/or mandamus, a Writ or order of or Direction in the nature of certiorari and/or mandamus quashing and setting aside the Order of the Respondent No.1 dated 22/2/1991, being Annexure-N. [BBB] Issue a Writ of certiorari and/or mandamus, a Writ or order of or Direction in the nature of certiorari and/or mandamus quashing and setting aside the Order of the Respondent No.2 – the Collector of Ahmedabad dated 20/8/1991, being Annexure- C. SCA/8840/1991 3/47 JUDGMENT [BBBB] Issue a Writ of Mandamus, a Writ or order of or Direction in the nature of Mandamus directing the Respondent No.2, the Collector of Ahmedabad to comply with the directions of the Secretary, Revenue Department (Appeal), as incorporated in the order of the Secretary, Revenue Department (Appeal) dated 23/1/1984, being Annexure-B. [C] issue a writ of mandamus, a writ or order or direction in the nature of mandamus, directing the State of Gujarat (Respondent No.4) to decide the grant of the above land to the petitioners on permanent basis; [D] Pending admission and final disposal of this Special Civil Application, restrain the Respondent No.2 and the Respondent No.3 to implement the order of the Respondent No.2 dated 20.8.1991; [E] Pending admission and final disposal of this Special Civil Application, restrain the Respondent to implement the order of the Respondent No.1 dated 6.12.1991 and any order that may be passed on Revision Application No.21 of 1991.” 2. Considering the chequered history of the case, SCA/8840/1991 4/47 JUDGMENT it would be necessary to narrate the facts in detail. 3. The dispute involved in the present petition pertains to Government waste land admeasuring Acres 3-18 gunthas and 57 sq.mts of City Survey No.7887 situated in the Ambawadi area of Sardarnagar Township, Ahmedabad (hereinafter referred to as “the subject land”). The facts of the case as culled out from the available record are that the subject land was an open plot of land in Ambawadi area of Sardarnagar Township, Ahmedabad, wherein dirty water of Ambawadi area was being accumulated. In order to make good use of such water and to avoid insanitation, pursuant to an application dated 12th April, 1958 made by one Shri Tilumal Dharamdas requesting for grant of the said land, by an order dated 31st May, 1958, lease was granted in respect of the subject lands in favour of the said Shri Tilumal Dharamdas and one Shri Lachhmandas Jagumal for a period of five years for agricultural purpose. Subsequently the lease was extended for a further period of ten years. 4. It appears that it was brought to the notice of the Department that the lessees had transferred possession of the said lands to one Shri Raichand Amulmal (predecessor of the petitioners) sometime in 1962, who started SCA/8840/1991 5/47 JUDGMENT using part of the said lands for a purpose other than agriculture. After issuing show cause notice for breach of conditions of lease, the Managing Officer & Administrator, Sardarnagar Township, Ahmedabad, by an order dated 10th July, 1967 ordered to cancel the allotment order dated 18.5.1958 whereby the subject lands has been granted on lease for agricultural purpose. The said Raichand Amulmal carried the aforesaid order of the Managing Officer in revision before the Settlement Commissioner, who by an order dated 8th April, 1964 quashed and set aside the order dated 10th July, 1967 as well as the levy of fine and non-agricultural assessment. It was held that no penalty could legally be levied on the petitioner. As regards proceedings for dispossession, it was directed that the Managing Officer shall afford the petitioner a reasonable opportunity of hearing before taking any action. 5. Thereafter by an order dated 27th November, 1972 the lease was renewed in favour of Raichand Amulmal till 31st July 1973. Upon expiry of the period of lease, the said Raichand Amulmal made an application for renewal of lease and also requested that the subject lands be granted to him on a permanent basis. 6. In the meanwhile during the pendency of the SCA/8840/1991 6/47 JUDGMENT aforesaid application, the Collector, Ahmedabad, considering the possession of the subject lands by the said Shri Raichand Amulmal after 31st July, 1973 to be unauthorized, by an order dated 23rd September, 1983, imposed annual non-agricultural rent and penalty at 100 times the assessment for non- agricultural use and further directed that the subject lands be made fit for agriculture and be vacated. 7. Being aggrieved by the aforesaid order dated 23rd September, 1983 passed by the Collector, Ahmedabad, the said Raichand Amulmal made a Revision Application before the Secretary (Appeals) who by an order dated 23rd January, 1984 set aside the order dated 23rd September, 1983 passed by the Collector and remanded the matter with a direction to decide the same in the light of the observations made in the said order. 8. Pursuant to the aforesaid order dated 23rd January, 1984, the Collector, by an order dated 20th August, 1991 decided to fix the annual rent at the rate of Rs.16298.40 per year with effect from 1.8.1968 to 31.7.1973; he also assessed the entire land admeasuring 10060 sq. yds. on non-agricultural basis at the rate of Rs.16298.40 per year with effect from 1.8.1973 till the possession of the land is handed back to the Government. It was held SCA/8840/1991 7/47 JUDGMENT that since the occupier had violated the conditions of the lease, lesser penalty could not be imposed. Hence, he decided to stick to his earlier stand of imposing penalty at 100 times the annual assessment and directed that the land be made fit for cultivation and vacant possession be handed over. 9. The petitioner carried the aforesaid order of the Collector, Ahmedabad in revision before the State Government under the provisions of section 211 of the Bombay Land Revenue Code, 1879 (hereinafter referred to as the Code). The petitioner also filed a stay application along with the Revision Application. 10. By a communication dated 31st August, 1991, the office of the Additional Chief Secretary (Appeals) informed the petitioner that his Revision Application dated 28th August, 1991 is under consideration; that an order of status quo for a period of 8 days is being made on the stay application and the hearing is kept on 7th October, 1991. 11. Again by a communication dated 5th September, 1991 the office of the Additional Chief Secretary (Appeals) informed the petitioner that considering the submissions made by his Advocate, it is ordered that status quo be maintained till the final disposal of the Revision Application. SCA/8840/1991 8/47 JUDGMENT 12. Thereafter by an exparte order dated 6th December, 1991, the interim relief granted earlier was vacated and it was directed that action be taken in accordance with the order dated 20th August, 1991 of the Collector and report be submitted within 20 days. The said order as translated into English reads thus: “The Advocate for the applicant was heard on 27.11.91. Upon perusal of case papers it does not appear that he has cultivated the land. As per the decision his possession over the land cannot be continued. The advocate for the applicant had submitted that the land has been used for agricultural purpose and that non-agricultural rent could not be recovered for land which has been used for agricultural purpose. He sought for time to produce supporting evidence. He was granted time up till 16.12.1991. The circumstances for using the land for agricultural purpose have ceased since long, in these circumstances it is not proper to let the land be in his possession. The Collector, has rightly directed to return the lands within 15 days, as per the said proceeding it is not proper to continue the interim relief. SCA/8840/1991 9/47 JUDGMENT ORDER For the aforesaid reasons the stay granted against the action for taking back the land is vacated. Report in terms of paragraph–4 of the order of the Collector be forwarded within a period of 20 days.” 13. It is the case of the petitioners as averred in paragraph 15 of the petition that, “On 16th December, 1991, the day on which the case was adjourned, the petitioners appeared before the respondent No.1. To their surprise, the matter was not on board. On their enquiry, they were told that as the matter was heard on 27th November,1991, nothing remains to be submitted to the respondent No.1, the matter is treated as heard”. 14. It is at this stage that the petitioners being aggrieved by the aforesaid stand of the respondent No.1, have approached this Court by way of the above numbered petition seeking withdrawal of proceedings of the Revision Application with a further prayer to decide the same in the present proceeding. 15. Though belatedly, the respondents have filed counter affidavits in response to the petition. On behalf of respondent No.1, the SCA/8840/1991 10/47 JUDGMENT State of Gujarat, Shri D.M. Mojidra, Mamlatdar, Office of the Secretary, Revenue Department, (Appeals) has filed affidavit-in- reply dated 30th August, 2006 and on behalf of respondent No.2, Collector, Ahmedabad, Shri Harshvardhan Jayantilal Vyas, Deputy Collector, A.R.D.C.-Ahmedabad has filed affidavit-in-reply dated 5th August, 2006. 16. On behalf of the petitioners, written submissions have been filed on 5th October, 2005 and further written submissions have been filed on 30th August, 2006. 17. It appears that this petition was initially listed on 19th December, 1991, whereupon this Court had passed the following order : “Learned counsel for the petitioner assures the Court that the petitioner will pay the rents on or before 24/12/1991, as per the order of the Collector dated August 20, 1991 produced at Annexure “C” to the petition, at the rate of Rs.16,298=40 per year commencing from August 1, 1968 till the current year. On this assurance being given, it is directed that the possession of the petitioner shall not be disturbed by the respondents till December, 25, 1991. S.O. to 24/12/1991 for reporting the compliance with the aforesaid assurance.” SCA/8840/1991 11/47 JUDGMENT 18. Thereafter, on 24th December, 1991, the Court, after hearing the learned Advocate for the petitioners, passed the following order:- “Learned counsel for the petitioner states that the petitioner has complied with the directions given on 19th December, 1991. He further stated that an amount of Rs.3,91,161=60 [Rupees three lacs ninety one thousand one hundred and sixty one and paise sixty] has been paid by cheque dated 21st December, 1991. He assures the Court that the cheque shall be honoured and it shall not bounce back. In view of the aforesaid assurance, the following order is passed: “Notice was issued pending admission, returnable on January 16, 1992. Ad-interim relief granted earlier on December 19, 1991 is ordered to continue till 17th January, 1991 on the condition that if the cheque is dishonoured for any reason whatsoever, the ad-interim relief granted herein shall automatically stand vacated” 19. On 16th January, 1992, Rule was issued and the ad-interim relief was extended from time to time. On 26th February, 1992, it was directed that the ad-interim relief shall continue till SCA/8840/1991 12/47 JUDGMENT further orders. 20. Meanwhile, in the revisional proceeding, the respondent No.1, by a communication dated 19th February, 1992, called upon the petitioner No.1 to produce evidence within a period of 7 days of the receipt of the said communication. 21. Again, by a communication dated 25th February, 1992 the petitioner No.1 was called upon to remain present on 29th February, 1992 at 15:00 hours and to produce evidence if he so desired. 22. By an order dated 25th February, 1992 the Revision Application was rejected, however, it appears that at the relevant time the petitioners were not served with a copy of the same. 23. By judgement and order dated 15th March, 2002, the present writ petition was dismissed. The Court recorded the statement made by the learned Assistant Government Pleader that the Revision Application No.21 of 1991 of which withdrawal had been sought for in the petition, has been dismissed on 25th February, 1992 and expressed the view that, in view of the aforesaid statement, the question with regard to withdrawal of the said Application and taking up the said Application along with SCA/8840/1991 13/47 JUDGMENT the present petition, does not survive. 24. The petitioners, thereafter, moved an application being Miscellaneous Civil Application No.1240 of 2004 for recalling the order dated 15th March, 2002 and seeking restoration of the main Special Civil Application. By an order dated 24th August, 2004, the application was allowed and the aforesaid order dated 15th March, 2002 was recalled and the petition was restored to file. It was also ordered that the stay granted by this Court earlier at the time of admission of the petition shall continue till the final disposal of the petition. It is in these circumstances, that the present petition has come up for final hearing before this Court. 25. In view of the fact that the proceeding which was sought to be withdrawn had culminated into the aforesaid order dated 25th February, 1992, the petitioners moved an application for amendment, seeking relief in terms of paragraph 19-BB, 19-BBB and 19-BBBB as set out hereinabove which was allowed by an order dated 24th August, 2006. 26. Heard, Mr. S. Tripathy, learned Advocate for the petitioners and Mrs. Reeta Chandarana, learned Assistant Government Pleader for the SCA/8840/1991 14/47 JUDGMENT respondent State authorities. 27. Learned Advocate, Mr. Tripathy submitted that the main issues that arise for consideration in this petition are: - Whether the Collector, Ahmedabad could ignore the order dated 23rd January, 1984 passed by the Secretary, Revenue Department, (Appeals) whereby the order dated 23rd September, 1983 passed by the Collector, Ahmedabad, had been quashed and set aside and the matter had been remanded with directions to decide the same afresh in the light of the observations made therein, and vide fresh order dated 20th August, 1991 repeat what he had ordered vide the earlier order dated 23rd September, 1983? - Whether the Collector was not bound to comply with the Appellate order dated 23rd January, 1984 as per settled principles of law as well as the principles of judicial discipline? - Whether the Principal Secretary, Revenue Department, (Appeals) could dispose of the Revision Application No.21 of 1991 on 25th February, 1992 when interim injunction was operating against him from December 1991 and was still in operation on 25th February, 1992? SCA/8840/1991 15/47 JUDGMENT - Whether the Principal Secretary, Revenue Department, (Appeals) could decide to reject the Revision Application No.21 of 1991 on 25th February, 1992 when vide his Notice dated 19th February, 1992, the hearing of the matter was fixed on 29th February, 1992 and written submissions had actually been presented on behalf of the applicants during the course of hearing? 28. Learned Advocate submitted that the petitioners have been subjected to gross injustice in the proceedings before the Collector as well as the State Government. Referring to the order dated 23rd January, 1984, of the Secretary (Appeals) attention was drawn to the findings arrived at by the said authority and the observations in the light of which the matter was required to be decided in remand. It was pointed out that the Collector, Ahmedabad while passing the impugned order dated 20th August, 1991 had referred to the observations of the Revisional Authority but while making the impugned order he had totally ignored the same and passed an order in the same terms as the earlier order dated 23rd September, 1983, which had been set aside by the Revisional Authority. It was submitted that judicial discipline requires that the Collector abides by the order passed by the superior authority, but the Collector had in SCA/8840/1991 16/47 JUDGMENT flagrant disregard of the directions given by the Secretary (Appeals) while remanding the matter, passed an order contrary to the findings recorded by the said authority. Reliance was placed upon the decision of the Apex Court in the case of Union of India v. Kamlakshi Finance Corporation Ltd., AIR 1992 SC 711, wherein it has been held that utmost regard should be paid by adjudicating authorities and the appellate authorities to the requirements of judicial discipline and the need for giving effect to orders of the higher appellate authorities which are binding on them. Mr. Tripathy submitted that accordingly, the Collector, Ahmedabad was duty bound to follow the order dated 23rd January, 1984 passed by the Secretary, Revenue Department, (Appeals) and give effect to the same in letter and spirit and that non- compliance with the same amounted to violation of the principles of judicial discipline as enunciated by the Apex Court in the aforesaid decision. 29. Learned Advocate for the petitioners, further submitted that the Revisional Authority instead of appreciating the matter in a judicial manner and requiring the Collector to abide by judicial discipline and comply with the earlier order of the Revisional Authority wherein the same issues were agitated and decided, has acted in an arbitrary manner. SCA/8840/1991 17/47 JUDGMENT 30. It was urged that the treatment meted out to the petitioners in the proceeding before the Revisional Authority was also highly irregular and arbitrary. It was pointed out that the Revisional Authority had vide order dated 5th September, 1991 granted interim relief till the final disposal of the Revision Application. Thereafter, the matter was heard on 27th November, 1991 and was adjourned to 16th December, 1991 for production of evidence. However, in the interregnum, vide order dated 6th December, 1991 the interim order was vacated exparte. On 16th December, 1991 when the petitioners appeared before the respondent No.1, the matter was not listed on the board. Upon inquiry the petitioners were informed that the matter has already been heard on 27th November, 1991 and nothing remains to be submitted to the respondent No.1; that the matter is treated as heard. It is at this stage that the petitioners had approached this Court for withdrawal of proceedings from the said authority for adjudication by this Court having reason to believe that they would not be able to obtain justice in the hands of the Revisional Authority. 31. It was further submitted that this Court had vide order dated 19th December, 1991 granted interim relief in favour of the petitioners which had been continued from time to time and SCA/8840/1991 18/47 JUDGMENT continues till date. However, in defiance of the aforesaid interim relief granted by this Court, the revisional authority had during the pendency of this petition, proceeded ahead with the hearing of the Revision Application and decided the same. It was submitted that, accordingly, the impugned order passed by the respondent No.1 was bad on the count of having been passed despite the interim injunction operating against him at the relevant time when the proceedings were pending before the said authority as well as when the impugned order dated 25th February, 1992 had been made. 32. It was contended that the order of the Revisional Authority dated 23rd January, 1984 had not been challenged by the State Government, hence, insofar as the respondents were concerned the same had become final. It was submitted that in the circumstances, the findings recorded by the said authority were binding on the respondents and the Collector as well as the Revisional Authority could not go behind the findings recorded in the order dated 23rd January, 1984. It was submitted that the Collector had passed the impugned order in flagrant disobedience of the said order, and, the Revisional Authority while confirming the said order had in effect and substance sat in appeal over the earlier order passed by the Revisional Authority. SCA/8840/1991 19/47 JUDGMENT 33. Learned Advocate for the petitioners vehemently urged that when the Revisional Authority had vide his notice dated 25th February, 1992 asked the petitioners to appear before him on 29th February, 1992; and in fact on that day the parties were actually heard and the petitioners had presented their written arguments, it is beyond anybody’s imagination as to how an officer of the rank of Principal Secretary could dismiss the Revision Application on 25th February, 1992. It was contended that the Revisional Authority had decided the Revision Application on 25th February, 1992 prior to hearing the matter on 29th February, 1992 which was ex facie illegal rendering the said order a nullity and that the petitioners should succeed on this ground alone. It was submitted that in the circumstances, the impugned orders of the Collector, Ahmedabad, as well as the Principal Secretary, Revenue Department, (Appeals) are required to be quashed and set aside and the Collector should be directed to comply with the order dated 23rd January, 1984 passed by the Revisional Authority. 34. Learned Advocate for the petitioner submitted that the petition is more against the conduct of the respondent No.2 in that he has disregarded the principles of judicial discipline as well as against the non- judicious approach of the respondent No.1. It SCA/8840/1991 20/47 JUDGMENT was pointed out that there were specific allegations of arbitrariness and malafides in the conduct of the respondents which have not been controverted nor denied and as such should amount to an admission of those facts and submissions. 35. The petition was strongly contested by the learned Assistant Government Pleader. It was submitted that the subject lands had been given on lease solely for agricultural purpose, however, the petitioners had used the same for a non-agricultural purpose by setting up a limekiln thereon, in contravention of the conditions of grant. It was submitted that though the land had been granted for cultivation thereof, the leaseholders under the pretext of having more water than required for agriculture, have started using the said land for lime kiln and accordingly four furnaces have been constructed for non- agricultural purpose without prior permission of the competent authority. 36. It was urged that the lease granted in favour of the predecessor of the petitioners had expired as early as in the year 1973, however, the petitioners still continued to hold the same without any authority of law and requested the authorities to grant the same on permanent basis. It was submitted that looking to the nature of the illegalities committed by SCA/8840/1991 21/47 JUDGMENT the petitioners, the order of the Collector is just and fair and has rightly been confirmed by the Revisional Authority. It was pointed out that before the authorities, the petitioners had failed to adduce proper evidence. That, in absence of Village Form No.7/12, the petitioners could very well have produced relevant documents like property card from the City Survey Superintendent or any other relevant documents, in place of the documents