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2012 Supreme(Guj) 546
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
Hon’ble Mr. Justice Jayant Patel & Hon’ble Mr. Justice Mohinder Pal
Govindbhai Manilal Patel & Ors.
Versus
State of Gujarat & Anr.
Letters Patent Appeal No. 839 of 2001—Decided on 29/11/2012
Appearance :
Mr. Jitendra M. Patel, Advocate for the Appellants No. 1 – 7.
Mr. Devnani, AGP for the Respondents No. 1.
Ms. Trusha K. Patel, Advocate for the Respondents No. 2.
Point in Issue :
Whether in the fact of the case sale of land by petitioner is not valid
Headnote:Head Note :
Bombay Prevention of Fragmentation and Consolidation of Holding Act, 1947 — Section 7, 19, 35 & 135(c) & (d) — Sale of land through sale-deed — Challenged by petitioners seller them selves — Contending that land is recorded as fragmented and sale is not valid under the Act — Finding of — Sustainability — When notice for limitation of proceeding under Section 9 of the Act was given by Deputy Collector the stand of petitioners was that there is no breach and sale is in accordance with law and the provisions of the Act has no applicability — Now in the revision before State Government writ petition and before this Court they have taken a contrary stand — This is also in absence of cogent material to support — When the petitioners are the persons who have posted the money and have executed the sale-deed in favour of purchaser and when they are party to a transaction they cannot turn around and say that the transaction was barred by provisions of the Act — This will allow the present appellants to take undue benefit of their own wrong — Under the circumstances Court held that if the principles of equity are considered the conduct of appellant here in should not be permitted to invoke discretionary jurisdiction of the Court — Court, therefore, dismissed the petition with cost.
Held :
If this Court is to find that the litigant has invoked the jurisdiction not in bona-fide or that interference by this Court would frustrate the ends of justice, the Court may decline to entertain the petition or may not entrust the writ to such person. When the original petitioners, the appellants herein are the persons who have pocketed the money and have executed the sale-deed in favour of the purchaser and when they are party to the transaction, they cannot say that the transaction was barred by the provisions of the Act. No attempt is made to return the consideration prior to invoking the jurisdiction of the Authority i.e. of the State Government. As recorded earlier, before the Deputy Collector, the stand was to maintain the transaction. Such conduct shows that there is extraneous consideration to challenge the decision of the Authority when the prayer of the original petitioners for dropping of the proceedings under the Act was accepted. The one who is party to the action for sale of the property, cannot be permitted to invoke the jurisdiction on the ground as sought to be canvassed while exercising the power under Article 227 or even Article 226 of the Constitution. If such litigant are permitted to invoke the jurisdiction, it would result into allowing the present appellant to take undue benefit of their own wrong. The aforesaid is coupled with the circumstances that before the Deputy Collector at the first instance when the proceedings were initiated, the stand of the petitioners was that there is no breach and the sale is in accordance with law and the provisions of the Act has no applicability. Under these circumstances, we find that if the principles of equity are considered, the conduct of the appellants herein – original petitioners is such that he should not be permitted to invoke the discretionary jurisdiction of this Court under Article 226 and/or 227 of the Constitution of India. Notwithstanding the aforesaid conduct, we have examined the merits and have found no substance. [Para 18]
Considering the facts and circumstance, it appears that the present litigant is not at all bonafide and is with extraneous consideration. The conduct of the petitioner is with a view to take undue benefit and not bona-fide. Therefore, even when we find that no interference is called for to the order of the learned Single Judge, it would be appropriate to impose cost and rather exemplary cost upon the appellant – original petitioner. [Para 19]
Law Laid Down :
The one who is party to the action for sale of the property cannot be permitted to invoke the jurisdiction of Court to declare sale illegal white exercising power under Article 227 or even under Article 226 of Constitution.
Jayant Patel, J.—The present appeal is directed against the order dated 12.7.2000 passed the learned Single Judge of this Court in Special Civil Application No. 7738 of 2000; whereby, the learned Single Judge, for the reasons recorded in the order, has dismissed the petition of the appellants / original petitioners.
2. The brief facts are that the forefathers of the appellants herein was holding the agricultural land bearing Survey No. 121, Block No. 158, ad-measuring 0 Acre and 8 Gunthas. The said property was sold to Respondent No. 2 herein by executing the sale-deed, after having received the sale consideration. The revenue entry was also mutated in the revenue record vide entry No. 4315 dated 17th August, 1994. After the revenue entry was mutated for sale of the land by the original owner in favour of Respondent No. 2 herein, it appears that proceedings came to be initiated under Section 9 of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (herein after referred to as ‘the Act’) by issuance of the show cause notice dated 7.6.1995. The appellant as well as the purchaser, Respondent No. 2 herein, appeared before the District Collector and contended that there is no power to issue the notice and the land in question was not covered by the Act since it was not fragmented and it was submitted that before recording the entry No. 827 for fragment, no notice was served to the original owner and not only that but the provisions of Section 7 of the Act would not be applicable. It was also contended that the land has been transferred for construction and the land is also converted for non agricultural use and all surrounding lands are also converted for non agricultural uses and hence, the notice shall be treated as invalid and the notice be withdrawn. The Deputy Collector considered the matter under the Act and found that notice was not issued for the revenue entry No. 827;whereby, the land was treated as fragment and therefore, it was found that, if the entry was mutated without issuing the notice to the owner, it cannot be treated as fragment and therefore, there is no breach of Section 7 of the Act and consequently, no proceedings under Section 9 of the Act are called for and therefore, vide order dated 19.10.1995, he withdrew the notice and dropped the proceedings.
3. Surprisingly, the appellant herein, original petitioner though represented before the Deputy Collector that there is no breach of the provisions of the Act and the sale cannot be said as illegal by taking the same stand as it was taken by the purchaser, preferred revision before the State Government against the order of the Deputy Collector under Section 35 of the Act. The State Government did initiate the proceedings and ultimately, found that the entry No. 827, for treating the land in question, as fragment, was mutated, without recording that notices were given and further the land was converted as non agricultural land and hence, no useful purpose would be served and therefore, dismissed the revision and the order of the Deputy Collector was confirmed.
4. The original petitioner-appellant herein preferred the writ petition before this Court challenging the said order of the State Government being Special Civil Application No. 7738 of 2000. The learned Single Judge found that there are concurrent findings of fact by both the lower authorities and hence, no interference is called for. Learned Single Judge also found that the nearby land are converted for non agricultural use and therefore also, the petition does not deserve to be entertained. Ultimately, the learned Single Judge dismissed the petition summarily. Under the circumstances, the present appeal before the Division Bench of this Court.
5. We have heard Mr. Chauhan, learned Counsel appearing for Mr. J.M. Patel and Mr. Devnani, learned AGP for Respondent No. 1- State of Gujarat and Mr. Shivang Shukla with Ms. Trusha Patel for Respondent No. 2.
6. It appears from the recor
