(Per : HONOURABLE MR.JUSTICE PARESH UPADHYAY) 1.1 These appeals, under Clause 15 of the Letters Patent, are directed against the common judgment and order passed by learned Single Judge dated 23.8.2006 in Special Civil Applications No. 3134/2001 and 13380/2006, whereby, both the petitions are dismissed with costs. Learned Single Judge, while dismissing the petitions, which were filed invoking Article 226 of the Constitution, has also observed that both the petitions were filed with a view to extract undue benefits by abusing the process of law. The present appellants are original petitioners.
1.2 Before learned Single Judge, challenge was made to the order passed by the Government dated 7.12.2000, whereby the sale of land, made by the appellants of LPA No: 1875/2007, in the year 1981 is held to be legal and valid. It is pertinent to note that it is the sellers of the land, who are challenging the order of the Government, whereby, the sale- deed dated 6.7.1981, jointly executed by them and their father (since deceased), is held to be legal and valid.
1.3 It is required to be noted that the land in question is more than 60,000 sq.mtrs. It is on the outskirts of Ahmedabad City and now within the limits of 'Ahmedabad Urban Development Authority', prices of land have sky rocketed in recent past, and under these circumstances, the sellers have come to this court contending that, while they and their father sold the land to the respondents in the year 1981 (sale deed of 6.7.1981), they i.e. appellants should have taken permission from the government, which they had not taken and therefore the sale is void, appellants should get their land back, they are ready to pay back the sale consideration which they and their father had received in the year 1981 and they are also ready to pay penalty to the government for this default, which is indicated to be Rs.250/- by them. Further, all these niceties and juggleries are pressed into service before this court under the pretext of alleged violation of 'The Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947' (hereinafter referred to as 'The Prevention of Fragmentation Act' for short), the object of which is to prevent the fragmentation of agricultural holdings and to provide for the consolidation of agricultural holdings, for the purpose of the better cultivation thereof, while the land in question is already 'Non Agricultural' land by this time.
1.4 It is in this background that the learned Single Judge recorded finding to the effect that both the petitions were filed with a view to extract undue benefits by abusing the process of law. Learned Single Judge has also answered each contention raised by the petitioners regarding the effect of alleged violation of different provisions of The Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, and found that the petitioners are not entitled to any relief.
1.5 It is this order of learned Single Judge which is under challenge in these appeals.
2. We have heard Mr.S.B.Vakil learned Senior Counsel with Mr.K.V.Shelat for the appellants in LPA No. 1875/2007 and Mr. Mihir J. Thakor learned Senior Counsel with Mr. Manav Mehta for the appellants in LPA No. 1065/2007. We have also heard Mr. A.J.Patel learned counsel with Mr. Shital Patel and Mr. Percy Kavina learned Senior Counsel with Mr. Viral K. Shah learned advocates for the respondents and Mr.
L.R. Pujari learned Assistant Government Pleader for the State.
3.1 Learned counsel for the respondents have raised preliminary objections and have contended that, apart from the fact that the appellants have no case on merits, the appellants can not be said to be party aggrieved, and in any case, they are not the persons who can be entrusted with the writ of this Court. It is further contended as preliminary objection that, apart from the fact that the filing of petitions before this court, was abuse of process of law, which is so observed and found by learned Single Judge, but even after the judgment of learned Single Judge was pronounced, the said abuse has continued by the appellants, of both the appeals, and on this count alone, this Court may not entertain these appeals. Learned counsel for the respondents have relied on the judgment of Hon'ble the Supreme Court in the case of Rakesh Kumar Goel v/s. U.P.State Industrial Development Corporation Ltd (AIR 2010 SC 2451). Attention of the Court is drawn to para:41 of the judgment, relevant part of which reads as under.
“41. But this case certainly calls for exemplary costs to the appellants. We wish to make it absolutely clear that this Court is not for manipulators, speculators and land grabbers. The litigation in this Court is not like buying a lottery ticket that, if luck favours, might bring a windfall (even though illegitimate) but would cost no more than the expenses of litigation.
That is not the way of this Court. We, accordingly, impose cost of Rs. 2 lakhs on each of the two appellants. ”
(emphasis supplied)
3.2 To examine and appreciate these preliminary issues raised by the respondents, necessary facts, eschewing unnecessary details, as are emerging from record, are briefly recorded hereunder. The facts are recorded in detail by learned Single Judge in the impugned judgment and in these appeals, no grievance is made with regard to any factual aspect as reflected in the impugned judgment, and therefore, only those facts which are relevant for deciding these appeals, as emerging from record, are briefly recorded as under:
(i) One Maganbhai Joitaram Patel and his four sons (appellants of LPA 1875/2007) owned 78914 square meters of land. The said land is at Village: Shela, Taluka: Sandand, District : Ahmedabad. It was identified as Land bearing Survey nos. 261/1, 261/2, 262, 263 & 291, which was given Block no. 335.
(ii) Out of aforesaid total 78914 sq.mtrs., 18009 sq.mtrs. of land was sold by them to one Ibrahimbhai by Registered Sale deed on 10.4.1980. The said sale has attained finality by the judgement of the Division Bench of this court in LPA No: 1086 of 1999 dated 23.1.2002, the reference to which is made hereinafter, but it is noted that that part of land i.e. 18009 sq. mtrs. is not the subject matter of these proceedings.
(iii) From total 78914 sq.mtr., after selling 18009 sq.mtrs. of land as stated above, what remained was 60905 sq.mtrs. of land, which is the subject matter of these proceedings. This piece of land i.e. 60905 sq.mtrs. came to be sold by the appellants to Savitaben Govindbhai Patel and Hasmukhbhai Govindbhai Patel by registered sale deed dated 6.7.1981. The said land came to be converted as 'Non Agricultural' land by the order of the competent authority dated 3.8.1982, which, after some proceedings, stands intact today. It is pointed out at the bar that, there is no challenge to that 'Non Agricultural' status now.
(iv) Proceedings were initiated by the authorities of the Government, for alleged violation of the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, with regard to both the parcels of land i.e. for 18009, as well as 60905 sq.mtrs, and thus the sale deeds, both the sale deeds, entered into by the sellers i.e. the appellants were at the stake. Ultimately both the sale transactions are approved by the government. The appellants, the original sellers are aggrieved as to how and why their own action is held to be valid by the government.
(v) They challenged these actions of the government, of approving and upholding both the sale transactions, which they themselves had entered into with the respective buyers.
(vi) So far challenge to the first part i.e. 18009 sq.mtrs. is concerned, as recorded above, it has failed right upto the division bench of this court. While dismissing the said appeal with costs, by order dated 23.1.2002, the division bench of this court had, inter-alia observed to the effect that, that proceeding was abuse of process of law, by the appellants therein. (Same are the appellants now).
(vii) So far challenge to the second part of land i.e.60905 sq.mtrs. is concerned, which is the present subject matter, learned Single Judge has taken almost the same view, which the division bench had taken in case of the first part, and has dismissed the petitions with costs, inter-alia observing that it is the abuse of process of law.
(viii) It is this order of learned Single Judge which is under challenge in these appeals.
3.3 In the above factual back ground, we find substantial force in that part of the preliminary objection of learned counsel for the respondents that the appellants, at least appellants of LPA 1875 of 2007 can not be
3.4 This takes us to examine the next part of the said preliminary objection that this stigma is attached with the appellants of LPA 1065/2007 as well, and further that both the sets of appellants have, even after the judgment of learned Single Judge dated 23.8.2006, continued to abuse the process of law. For this purpose, the facts as emerging from record, need to be recorded, but before we do so, we record that, we are mindful of the fact that, what we are examining in these appeals is, as to whether any error has creped in, in the judgement and order passed by learned Single Judge, and the conduct of the appellants subsequent to the order passed by learned single Judge may not change the complexion of the appeals, on merits, but it may have bearing on the aspect of imposition of costs, if any, in the present appeals, and quantification thereof.
3.5 One may conceive that appellants of LPA No. 1065/2007 could be the victim of ingenuity of appellants of LPA No. 1875/2007, however, on closer scrutiny, we find that even that benefit, they are not entitled to. Their conduct is not of a victim but is of a facilitator and of conniver. There is ample material on record which constrains us to make these observations.
3.6 Some of these factors are, that the appellants of LPA No. 1875/2007 approached this court challenging the action of the Government upholding the sale transaction which they had entered into with the respondents of LPA No. 1875/2007 in the year 1981. This challenge was made by filing petition before this Court in the year 2001 being Special Civil Application No. 3134/2001. It is pertinent to note that the appellants of LPA No. 1065/2007 have challenged the same action in the year 2006 contending that they were not aware of these proceedings. Learned Single Judge has found that, factually this was a false statement, since they were already party to the contempt proceedings in the earlier round of litigation. They were served with the notice issued by this Court and they had appeared also. The more glaring aspect is, why in the year 2006, this set of appellants threw their hat in this litigation. Was it mere delay? We do not find that to be that innocuous. From record, we find that respondents of Special Civil Application No. 3134/2001 filed Civil Application for early hearing of that matter before this Court, being Civil Application No.777 of 2006. This Court, vide order dated 31.1.2006, fixed Special Civil Application No. 3134/2001 for final hearing on 23.2.2006. The petitioners of Special Civil Application No. 3134/2001, considering the facts of this case, must themselves be sure of fate of their petition. At that juncture, one more petition came to be filed by the appellants of LPA No. 1065/2007 in the form of Special Civil Application No. 13380/2006. This, possibly could facilitate the derailment of entire issue, which to their misfortune, did not happen. This connivance is more evident from further fact that when Special Civil Application No. 3134/2001 was listed for final hearing before learned Single Judge on 27.7.2006, the petitioners of Special Civil Application No. 3134/2001 informed the Court about the filing of SCA 13380 of 2006 and therefore, the hearing of Special Civil Application No. 3134/2001 was requested to be deferred. This aspect is reflected in the order recorded by learned Single Judge on 27.7.2006.
3.7 Even after losing before learned Single Judge jointly, in the present appeals also, no contention is raised on behalf of the appellants of LPA No. 1065/2007 that the appellants of LPA No. 1875/2007 have cheated them. Both of them are jointly trying to persuade this Court that the sale of land by the appellants of LPA No. 1875/2007 in the year 1981 was bad in the eye of law. Though, we are examining this submission, only from the angle of connivance, it creates very interesting situation, that if this argument was right, it would be self destructive for appellants of LPA No. 1065/2007, because they want the sale of land made in the year 1981 be declared void, on the ground that the permission of Collector was not taken by the seller, forgetting that even while selling the same land again to them in the year 1996, such permission is not taken. Thus, the appellants of LPA No. 1065/2007 want to succeed on the alleged illegality which would be fatal to them as well.
3.8 Thus, so far as ingenuity of appellants are concerned, if appellants of LPA No. 1875/2007 are leading it, appellants of LPA No. 1065/2007 are also going hand in hand with them. One may conceive that appellants of LPA No. 1065/2007 could be the victim of ingenuity of appellants of LPA No. 1875/2007. However, for the above recorded reasons, we find that if the appellants of LPA No. 1875/2007 have very weak case, appellants of LPA No. 1065/2007 can be said to have no case. But, here we find that the appellants of LPA No. 1875/2007 have no case, and therefore, appellants of LPA No. 1065/2007 need be put in the category, below 'no case', if there could be any.
4. Coming to the next point about abuse of process of law, after the judgement of learned Single Judge, facts are startling. But before we record the same, one factual development which took place at that stage, needs to be recorded, that after the judgement of learned Single Judge dated 23.8.2006 but before these appeals were registered in this court, which is in the year 2007, the land in question, came to be sold by a valid registered sale deed dated 14.12.2006, by the respondents of LPA No. 1875/2007, (Savitaben and her son) to the newly added respondents No:5,6 and 7 of that appeal, and mutation entry came to be duly certified in revenue record. Thereafter mischiefs by the appellants started again, some of which are briefly recorded as under.
(i) Appellants of LPA No. 1065/2007 i.e. petitioners of SCA No. 13380/2006, filed Special Civil Suit No. 132/07 before the court of Principal Senior Civil Judge Ahmedabad (Rural), against the original land owners and last purchaser of the said land, demanding status quo under exhibit-5, suppressing judgement of learned Single Judge dated 23.8.2006. The said exhibit-5 was dismissed by court on 22.8.2008.
(ii) The above order was challenged before this Court by way of Appeal from Order No. 43/2009, which was also dismissed vide order dated 15.6.2009, with the cost of Rs. 15000/- by this Court, treating it to be abuse of process of law.
(iii) They also took out, more than one other proceedings of miscellaneous nature, before Deputy Collector, Collector and other authorities and failed at all places. All these things were done suppressing the material fact that they had lost on merits before this Court. Further details in that regard, being unnecessary are not reflected here.
(iv) The appellants of L.P.A. No. 1875 of 2007 filed contempt proceedings before this court being MCA No: 2909 of 2010, which came to be withdrawn on 23.11.2010. Date of its filing, allowing it to remain pending under office objections, till convenient time and that convenience being not found, ultimately withdrawing the same, also speaks a lot for them in this regard.
(v) One of these appeals (LPA 1875/2007) was also filed with office objections, was permitted to be dismissed for non removal of office objections, then revived at their convenient time, and parallel proceedings, as referred above, suppressing material fact were taken out with the aid of appellants of LPA 1065/2007, all are dismissed, some are dismissed with costs and observations that that was abuse of process of law by them.
5. The chronology of the events as stated above, clearly demonstrates that the present proceedings are nothing but abuse of process of law, by both the sets of appellants. In our opinion, it is not that the appellants are striving for justice. On the contrary, we find that the appellants are abusing the process of law in every possible manner, and therefore, we find substantial force in the preliminary objections raised on behalf of the respondents. We also find that the observations of the Honourable Supreme Court in the case of Rakesh Kumar Goel (supra), will apply with full force in the facts of this case and these appeals are required to be dismissed with costs.
6.1 So far the arguments of learned counsel for the appellants with regard to alleged violation of the provisions of the Prevention of Fragmentation Act is concerned, at the outset it needs to be recorded that, the question that falls for consideration in these appeals, is not what is the effect of alleged violation of provisions of the said Act, as sought to be projected by learned counsels for the appellants, but in substance, it is, as to whether a landowner, once having sold the land by a registered Sale Deed and after having received the consideration, can subsequently challenge the order passed by the statutory authorities approving such sale transactions, only to take the undue and unauthorised advantage of hike in land prices, by the time the statutory authorities have concluded the proceedings, and further, whether abuse of process of law should further be permitted by this Court. Under these circumstances, according to us, the contentions raised by learned counsel for the appellants, with regard to the scheme of The Prevention of Fragmentation Act and the effect of breach of any provision thereof, need no mention, muchless any adjudication, however, since this proceeding has the checkered history of keeping some litigation alive, and abuse it at convenient opportunity, we do not wish to facilitate it any further and only with that purpose, the question of considering the contentions raised on behalf of the appellants on merits, is gone into.
6.2 Under these circumstances, coming to the question of considering the contentions raised on behalf of the appellants, regarding the scheme of the Prevention of Fragmentation Act and the effect of breach of provisions thereof is concerned, we find that learned Single Judge has already recorded, dealt with in detail and answered, all the contentions. We find no error in any of those findings and we concur with the same. We are in full agreement with the view expressed by learned Single Judge on each contention on merits and therefore, we need not re-write the same. It is not the case of the appellants that any contention was raised by them but is not dealt with by learned Single Judge. Under these circumstances, contentions raised on merits, which even otherwise are academic in nature, need not be discussed any further in these appeals. We record that number of authorities are cited before us, in support of the contentions raised by the learned counsel for the appellants with regard to the scheme of The Prevention of Fragmentation Act Act and the effect of breach of any provision thereof, however as we have recorded above that those contentions are not required to be gone into, beyond what is recorded above, we have not discussed those authorities in this judgement.
7.1 Though, as noted above, none of the contentions raised on behalf of the appellants on merits, need any further consideration, we deem it proper to specifically refer to one of such contentions, which is to the effect that the judgment of the Division Bench of this Court in the case of 'Patel Ratilal Maganbhai & Ors vs. State of Gujarat' reported in 2003(1) GLR 562, is per incurrium. This contention needs strongest possible condemnation, because if we look at the said judgment, the said Letters Patent Appeal was at the instance of these very appellants, with almost similar arguments and with regard to the land from the same block number. We have already recorded in the earlier part of this judgment that the original piece of land was of 78914 sq. mtrs, in block number 335, of which 18009 sq. mtrs of land was already sold, leaving behind 60905 sq. mtrs of land, which is the subject matter of these appeal. That 18009 sq. mrts of land was the subject matter of the above referred judgement. Be it noted that even while deciding that appeal, in para-23, this Court had observed thus:
“23.However, since we have found the present case as misuse and abuse of process of law resorted to by the appellants we award costs which are quantified at Rs. 5000/.”
7.2 The ingenuity of the appellants does not stop there. At that point of time also, reference to this 60905 sq. mtrs. of land had also cropped up before the division bench, as passing reference and the same was answered by the present appellants by saying as under, which is recorded in para:18 of the said judgement, which reads thus:
“18. At this stage, we may also refer to the contention raised by the respondent No. 3 in the affidavit-in-reply that the appellants themselves are not only the party to the transaction to the sale in question but they have also executed another registered sale deed by receiving Rs. 10 lacs as consideration for the lands admeasuring 60905 sq. mtrs. of Block No. 335 of village Sela and the said sale deed is an action on the part of appellants to divide the block without obtaining permission of appropriate authority. There is no rejoinder to this affidavit. Mr. Shelat submitted that the said transaction of sale refers to a different land of different block. But this shows the conduct of the appellant who are trying to invoke extraordinary equitable jurisdiction of this Court under the Constitution. It is well settled principle of law that powers under Art. 226 of the Constitution are discretionary and if this Court finds that the equitable considerations are against the person who tries to invoke the jurisdiction the Court may decline to entertain the petition because the powers vested are not to encourage the wrong orders who themselves are party to the litigation.” (emphasis supplied)
7.3 Before this court, now, in these appeals, it is contended that both parcles of land are part of same block, and the challenge on merits is based on this argument. This shows, how the appellants blow hot and cold, even on material facts, for the same block, to suit their convenience. It also shows the hollowness of the argument of the appellants on merits that the said judgement was per incurrium, and it further fortifies the view which the learned Single Judge has taken and which we also propose to take that these appeals are required to be dismissed with costs.
8. There may be a case where a citizen or any person, may have a grievance that injustice is meted out to him and he may approach the court of law with a prayer to undo that injustice. In that adjudication process, though court may find some substance in the said grievance, still it may not always be permissible to grant relief, considering relevant provisions of law, but in our view, converse need not be true. In a case where court finds that, factually, no injustice is meted out to the litigant and the attempt is only to abuse the process of law, then it may not be necessary to examine in detail the contentions regarding alleged violation of some provision of law and the consequence thereof, because it may remain academic exercise only. In the present case, we do not find that injustice is meted out to the appellants. They have not been able to show what injustice is done to them. What they have contended, in substance is that, according to them, they had violated some law, as the consequence of which, the price rise of land in question should fall into their lap as a windfall, instead of that of the respondents, to whom the land was sold by them in the year 1981. In this fact situation, we have no hesitation to record that, not only, no error is committed by learned Single Judge by dismissing the petitions, but according to us, no other view could have been taken.
9. There is one more dimension to this matter, which according to us is serious. We cannot shut our eyes to the fact that, it has come on record that the appellants of LPA No. 1875/2007 have sold the land in question at least twice, firstly, in the year 1981 to the respondents of LPA No. 1875/2007 and secondly, in the year 1996 (13.3.1996) to the appellants of LPA No. 1065/2007, suppressing the earlier sale. State authorities are party in these proceedings and this fact, which according to us, prima-facie, discloses commission of a cognizable offence, is not properly attended to, by the State. Whether it is in-differentness on the part of the concerned authorities, or some thing more, is an aspect which need not be gone into in these appeals, however we may observe that 'State' is expected to discharge its legal obligation in this regard, in accordance with law.
10.1 Coming to the next question regarding costs, we find that learned Single Judge has rightly arrived at the conclusion that there is abuse of process of law by both the sets of petitioners before him i.e. by both the sets of appellants in these appeals. Learned Single Judge has also recorded that not only the petitions are required to be dismissed with costs but are required to be dismissed with exemplary costs. Learned Single Jude, in his discretion, quantified that exemplary costs to be Rs. 15000/- and Rs.10,000/-. Learned counsel for the respondents in these appeals have addressed this court, also contending that, once learned Single Judge was convinced that the petitions are required to be dismissed with exemplary costs, in the facts and circumstances of the case, Rs. 15000/- and Rs.10,000/- can not be said to be exemplary cost, and more cost should have been imposed.
10.2 Though we find some substance in the argument of learned counsel for the respondents that in the facts and circumstances of this case, exemplary costs could have meant something more than Rs. 15000/-, we are not inclined to interfere even in that part of the judgment of learned Single Judge, which was purely discretionary. On overall consideration of the facts and circumstances of the case, since we have taken a view that learned Single Judge has not committed any error, much less any error apparent on the face of record, we do not think it proper to interfere even in this- cost part, of the impugned order. However, so far the present owners and occupants of the land in question are concerned, to whom the land came to be sold by a legally executed registered sale deed on 14.12.2006 i.e. after the judgement of learned Single Judge but before these appeals came to be registered in this court in the year 2007, and thus, who were not parties before learned Single Judge and are joined as party respondents in these appeals at the instance of the appellants, qua them some order is required to be passed. They are joined as respondent Nos: 5 to 7 in LPA No: 1875/2007 and as respondent Nos: 17 to 19 in LPA No: 1065/2007, and are made to contest these proceedings. According to us, they need to be compensated appropriately.
11. Considering the totality of the facts and circumstances and for the reasons recorded above, we arrive at the judgment, and pass order, as under:
(i) We find no error, much less any error apparent on the face of record, in the impugned common judgment and order passed by learned Single Judge in Special Civil Applications No. 3134/2001 and 13380/2006, dated 23.8.2006, whereby both the petitions were dismissed with costs, inter-alia observing therein, that both the petitions were filed with a view to extract undue benefits by abusing the process of law.
(ii) There is no merit in these appeals, the same are required to be dismissed, and we accordingly dismiss the same. The order passed by learned Single Judge dated 23.8.2006, impugned in these appeals stands confirmed.
(iii) So far cost aspect is concerned, exemplary cost is required to be imposed against the present appellants, in these appeals, however for the reasons recorded in para 10 above, no further cost is awarded against the appellants, to be paid to those respondents who were parties before learned Single Judge, and qua them, parties are directed to be governed by the order of learned Single Judge. It is further directed that,
(a) appellants of LPA No: 1875/2007 shall pay costs of Rs.30,000/- to respondent Nos: 5 to 7 of that appeal, who are newly added respondents, and same way,
(b) appellants of LPA No: 1065/2007, shall pay costs of Rs.20,000/- to respondent Nos: 17 to 19 of that appeal. This amount, as well as what is ordered by learned Single Judge, is directed to be paid within a period of two months from today.
[RAVI R. TRIPATHI, J.] [PARESH UPADHYAY, J.] mandora/