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Gujarat High Court
Judgename :A.N.Divecha
DILAVARSINH KHODUBHA JADEJA - Appellant
Versus
STATE - Respondent
S.C.A. 2339 of 1990
Decided On : 04/28/1994
Constitution of India, 1950 - Arts. 226 & 227 - Writ Jurisdiction - Discretionary in nature - Principles - Similar to those governing equity jurisdiction.
An irreversible situation qua the subject-matter of this petition can be said to have arisen in absence of any challenge to the aforesaid actions that have come to be taken after the appellate order at Annexure D to this petition came to be passed. The hand of the clock cannot now be put back to the original position in absence of such challenges as indicated hereinabove. The petitioner has, for reasons best known to him, remained indolent all throughout. No attempt is made to incorporate by seeking amendment in the memo of petition, the challenge to the aforesaid actions that have been taken after the appellate order at Annexure D to this petition came to be passed. It cannot be gainsaid that the extraordinary jurisdiction under Articles 226 and 227 of the Constitution of India is discretionary in nature.The principles governing exercise of discretion would be similar to, if not identical with, those governing exercise of discretion for grant of equitable reliefs. It is a settled principle of the equity jurisdiction that equity helps the vigilant and never the indolent. The petitioner has to thank himself for having remained indolent all throughout and having allowed the irreversible situation to arise in this case. The petitioner has also suppressed all the aforesaid facts from this Court in this petition. As pointed out hereinabvove, this petition has been filed on 26th July, 1989. Prior thereto, the notification under section 10(3) came to be issued and published and the notice under section 10(5) came to be issued and possession of the lands covered thereby also came to be taken. It appears that the petitioner was well aware of this development after the appellate order at Annexure D to this petition came to be passed, and yet he has not chosen to disclose the aforesaid facts in this petition. Non-disclosure or suppression of the aforesaid vital and material facts would certainly disentitle the petitioner from claiming any relief from this Court under Articles 226 and 227 of the Constitution of India. As rightly submitted by Shri Lakhani for respondents Nos. 5 to 29, the petitioner has agreed to sell the disputed lands in favour of one Laljibhai Patel. The specific averments in this regard have been made in Civil Application No. 879 of 1993 in this petition. It has not come to be controverted in any manner by or on behalf of the present petitioner. It thus becomes clear that the petitioner has not approached this Court with clean hands. This conduct on the part of the petitioner would disentitle him from claiming any relief from this Court in this petition under Articles 226 and 227 of the Constitution of India.
[Paras 9, 10, 11, 12 & 14]
( 1 ) BY means of this petition under Arts. 226 and 227 of the Constitution of India, the petitioner has questioned the correctness of the order passed by and on behalf of the State Government (respon- no. 1 herein) on 23/08/1984 rejecting his application for exemption under Sec. 20 (1) of the Urban Land (Ceiling and Regulation) Act, 1976 (the Act for brief) with respect to Survey Nos. 17 and 59 situated at nana Mauva within the urban agglomeration of Rajkot (the disputed lands for convenience) and also of the order passed by the Competent Authority at Rajkot on 27/02/1986 in U. L. C. Case No. 1731 as affirmed in appeal by the order passed by the Urban Land Tribunal at Ahmedabad (Respondent No. 3 herein) on 28/12/1988 in Appeal No. Rajkot 49 of 1986. By his impugned order, the Competent Authority declared the holding of the petitioner to be in excess of the ceiling limit by 54,886. 44 sq. metres.
( 2 ) THE facts giving rise to this petition move in a narrow compass. The petitioner was holding certain properties within the urban agglomeration of Rajkot as on 17/02/1976. He filled in the prescribed form under Sec. 6 (1) of the Act with respect to his aforesaid holding. It appears that his holding included the disputed lands. The petitioner appears to have made an application under Sec. 20 (1) of the Act for grant of exemption with respect to the disputed lands. By the order passed by and on behalf of respondent No. 1 on 5/12/1983, his application came to be rejected. Its copy is at Annexure a to this petition. That order was challenged before this Court by means of Special Civil Application No. 1145 of 1984. This Court accepted that petition and set aside the order at Annexure a to this petition and remanded the matter to respondent no. 1 for its fresh decision according to law with respect to the petitioners claim for exemption under Sec. 20 (1) of the Act qua the disputed lands. After giving an opportunity of hearing to the petitioner through his advocate, by the order passed by and on behalf of respondent No. 1 on 23/08/1984, the petitioners application for exemption under Sec. 20 (1) of the Act with respect to the disputed lands came to be rejected. Its copy is at Annexure b to this petition. The petitioner has questioned its correctness in this petition under Arts. 226 and 227 of the Constitution of India.
( 3 ) AFTER the order at Annexure b came to be passed, the proceeding arising from the prescribed form filled in by the petitioner under Sec. 6 (1) of the Act was taken up for its disposal according to law. Apropos, a draft statement came to be prepared and served to the petitioner in accordance with Sec. 8 of the Act. He filed his objections thereto. After hearing the petitioner, by the order passed on 27/02/1986 in the aforesaid proceeding, the Competent Authority at Rajkot declared the petitioners holding to be in excess of the ceiling limit by 54,886. 44 square metres. Its copy is at Annexure c to this petition. The aggrieved petitioner carried the matter in appeal before respondent No. 3 under Sec. 33 of the Act. It came to be registered as appeal No. Rajkot-49 of 1986. By the order passed on 28/12/1988 in the aforesaid appeal, respondent no. 3 dismissed it. Its copy is at Annexure d to this petition. The aggrieved petitioner has thereupon moved this Court by means of this petition under Arts. 226 and 227 of the Constitution of India also for challenging the order at Annexure c to this petition as affirmed in appeal by the appellate order at Annexure d to this petition.
( 4 ) IT is necessary to take note of certain further developments after the appellate order at Annexure d came to be passed. Pursuant thereto, the notification under Sec. 10 (3) of the Act came to be issued on 1 8/01/1989 and came to be published in the Gujarat Government Gazette on 2/03/1989. Pursuant thereto, the required notice under Sec. 10 (5) of the Act came to be issued on 21/03/1989 and it is reported to have been served to the pet
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