IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3363 of 2012 For Approval and Signature:
HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No 2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of the judgment ? No 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 ? No 5 Whether it is to be circulated to the civil judge ? No ========================================================= RAMESHBHAI CHATURBHAI VASAVA - Petitioner(s) Versus STATE OF GUJARAT THRO SECRETARY & 6 - Respondent(s) ========================================================= Appearance :
MR ZUBIN F BHARDA for Petitioner None for Respondent(s) : 1 - 7.
=========================================================
CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI
Date : 10/04/2012 ORAL JUDGMENT
1. The petitioner has preferred this petition under Article 226 of the Constitution of India by making the following prayers:
“A. This Honourable Court be pleased to admit this petition.
B. This Honourable Court be pleased to quash and set aside the action of the respondents more particularly respondent Nos.3 and 4 who are seeking to evict the petitioner from 1015 Sq.Mtrs. of Government Waste land situated in revenue Survey No.1257 situated in village Dholka, District Ahmedabad, at the behest of the respondent Nos.5 to 7 under the garb of the order dated 18/1/2011 and in turn protecting the respondent Nos.5 to 7 who are also declared as encroachers.
C. That this Hon'ble Court be pleased to direct the respondent Nos.3 and 4 to regularize the occupation of the petitioner in 1015 Sq.Mtrs. of Government Waste land situated in revenue Survey No.1257 situated in village Dholka, District Ahmedabad, or in the alternative be pleased to provide a reasonable alternative accommodation considering the petitioner to be a homeless Adivasi belonging to the down trodden class of society under the prevalent scheme of housing for the poor.
D. Pending, admission and final hearing and/or final disposal of this petition, this Honourable Court may be pleased to restrain the respondent Nos.3 and 4 from evicting the petitioner and his family members from 1015 Sq. Mtrs. of Government Waste land situated in revenue Survey No.1257 situated in village Dholka, District – Ahmedabad.
E. Be pleased to pass such other and further order(s) as may be deemed fit and proper in the interest of justice.
F. Be pleased to award cost of this petition from the respondents.”
2. The brief facts, as stated in the petition, are as under: The petitioner has been residing in land bearing Revenue Survey No.1257 situated in Village: Dholka, District: Ahmedabad, for the past 25 years, or so. Admittedly, the land belongs to the State Government. According to the petitioner, respondents Nos.5 to 7 have encroached upon huge parcels of the Government land by putting up iron gates and are cultivating the same. The petitioner was employed by respondents Nos.5 to 7 to work as an agricultural labourer and was permitted to put up a hut in a small portion of the land admeasuring 1015 square metres. It is averred in the petition that respondents Nos.5 to 7 stopped paying the petitioner, in lieu of their permitting him to occupy a piece of the Government land. According to the petitioner, respondents Nos.5 to 7 pressurized the petitioner to vacate his occupation of the land, which the petitioner refused. The said respondents, therefore, made an application in the Court of the Mamlatdar, Dholka (respondent No.4), who registered it as Encroachment Case No.1/2010. During the pendency of the case, the Mamlatdar got the encroachment measured, and found that not only was the petitioner in unauthorized occupation of 1015 square metres of land bearing Revenue Survey No.1257, but respondents Nos.5 to 7 had also made various encroachments on Government lands, as detailed in the order of the Mamlatdar, dated 18.01.2011. By the said order, the Mamlatdar directed the Circle Officer to take necessary action to remove the encroachments made by the petitioner and respondents Nos.5 to 7. It is the case of the petitioner that pursuant to the order passed by the Mamlatdar, action has only been taken against the petitioner, by demolishing his hut and forcing him to reside under the open sky with his family. However, no action has been taken against respondents Nos.5 to 7.
3. The petitioner had earlier filed Special Civil Application No.7049 of 2011, which was permitted to be withdrawn, by order dated 10.08.2011, with a view to availing of the alternative remedy. Thereafter, the petitioner filed Regular Civil Suit No.425 of 2011 in the Court of learned Principal Senior Civil Judge, Ahmedabad (Rural) at Dholka, for declaration and permanent injunction. The suit was later on withdrawn by the petitioner, who has now filed the present petition.
4. Mr.Zubin F.Bharda, learned advocate for the petitioner, has submitted that the petitioner is a poor person belonging to the scheduled caste and scheduled tribe category. The hut of the petitioner has been demolished, rendering him homeless. The petitioner does not have any shelter except the portion of the land admeasuring 1015 square metres, in land bearing Survey No.1257 of village Dholka, which is Government waste land. It is further submitted that under the garb of the order passed by the Mamlatdar on 18.01.2011, the petitioner is being evicted from the land by using force and pressure, whereas nothing has been done against respondents Nos.5 to 7 who are the real encroachers, having encroached upon huge parcels of Government land. It is further submitted that the petitioner has made an application to the Special Secretary, Revenue Department, on 16.08.2011, for allotment of the land occupied by him. That the Special Secretary called upon the Collector to do the needful and the Collector, in turn, directed the Deputy Collector to inquire into the matter, vide letter dated 01.12.2011. However, nothing further has happened in this regard. The learned advocate for the petitioner has contended that the petitioner has also moved the office of Her Excellency the Governor of Gujarat and his case has also been recommended by the Speaker of the Gujarat Legislative Assembly and the Commissioner, Scheduled Caste and Scheduled Tribes. It is contended that respondents Nos.3 and 4, i.e. the Deputy Collector and the Mamlatdar respectively, are biased against the petitioner and are acting at the behest of respondents Nos.5 to 7, who are rich persons, instead of protecting the petitioner and his family, who belong to the downtrodden class.
5. On the basis of the above submissions, it is prayed that respondents Nos.3 and 4 may be directed to regularize the occupation of the petitioner on 1015 square metres of land in Survey No.1257.
6. I have heard the learned advocate for the petitioner and perused the averments made in the petition and the documents annexed thereto.
7. It is clear from the order dated 18.01.2011 passed by the Mamlatdar, that the petitioner and respondents Nos.5 to 7 have encroached upon Government land. Whether the land is Government waste land or Gauchar land is not clear. The order of the Mamlatdar refers to the land as Government land, whereas in the petition, the petitioner refers to it as Government waste land.
On the other hand, in his application dated 16.08.2011 (AnnexureD), addressed to the Special Secretary, Revenue Department, the petitioner describes the land as Gauchar land. What is undisputed is that the land in question belongs to the Government.
8. The fact remains that the Mamlatdar has passed an order directing the removal of the encroachments made by the petitioner and respondents Nos.5 to 7. This order of the Mamlatdar has not been challenged by the petitioner, either before this Court or any other forum. This aspect has been specifically ascertained by the Court from the learned advocate for the petitioner. The order of the Mamlatdar dated 18.01.2011, holding the petitioner and respondents Nos.5 to 7 as encroachers has, therefore, attained finality, at least qua the petitioner, as it is not known whether respondents Nos.5 to 7 have challenged the same, and if so, to what effect. A direction is contained in the said order to the Circle Officer, to take steps for removing the encroachment. It appears that pursuant to this direction, the hut of the petitioner has been demolished.
9. Having been held to be an encroacher by the Mamlatdar by the abovementioned order that has attained finality qua the petitioner, an application has been made by the petitioner for allotment of the same Government land. It does not appear that any final order has been passed upon the application, so far.
10. In the above factual background, the petitioner has made a prayer to direct respondents Nos.3 to 4 to regularize the occupation of the land encroached upon by him. As an encroacher of Government land, admittedly the petitioner has no legal right over the same. The prayers made by the petitioner cannot be granted by this Court, as it cannot be ignored that he is an encroacher upon Government land. The petitioner, therefore, has no legal, fundamental or indefeasible right to seek the relief that has been prayed for in the petition.
11. The observations made by a Division Bench of this Court in Association of Cabin Holders of Karchelia v. State of Gujarat & Ors. 2007(1) GLR 826, are pertinent to the case in hand, and are reproduced hereinbelow: “13. The petitioners do not have any right under any law except making a submission that they are entitled for their rehabilitation or resettlement at some place. If resettlement or rehabilitation proceedings are taken in favour of these persons, then, it would be adding premium upon the wrong committed by such persons. Would not the law abiding citizen feel bad that though, all through, he had been observing law, he could not seek any benefits under the strong clutches of law, while on the other hand, a wrongdoer, whose action was in the teeth of law, is getting some benefits and his illegal action is ripening in some rights in favour of the wrongdoer. In our opinion, an order for settlement or rehabilitation of such persons can never be made.”
The Division Bench has further observed as under:
“17. So far as the question of discrimination is concerned, we must observe that if an action is not taken as a reaction to some other illegal action, then, that would not mean that everybody taking similar illegal action would be protected unless legal action is taken against the earlier encroachers or wrongdoers or against all of them simultaneously. A wrong, if is not remedied by the authorities, would not sow the seeds in favour of all others to enjoy the fruits of the wrong.
18. One could understand that in a given case, the plea was that if a person who has been allotted the land is not being evicted, then, the other person, who is also in legal occupation, should not be evicted. The argument that because action is not being taken against other wrongdoer, no action should be taken against any wrongdoer if is accepted, then, it may lead to anarchy and no Government or Competent Authority, armed with the provisions of law, would be in position to take action against any wrongdoer.
19. The Supreme Court has been repeatedly observing that the question of comparison in form of discrimination should not be allowed to be raised in case the wrongdoer is relying upon the illegal action taken by another wrongdoer. What is wrong cannot be allowed to stand, nor it can be observed to allow the later wrong. In the matter of National Council for Teacher Education & Anr. vs. Committee of Management & Ors., [(2006) 4 S.C.C. 65], the Supreme Court has observed that the concept of Article14 carries a positive concept. Only because some illegalities had been committed by the Council in respect of another institution, the same may not by itself be a ground for perpetrating the illegality.
In the matter of Vikrama Shama Shetty vs. State of Maharashtra & Ors., [2006 AIR SCW 3877], the Supreme Court has observed as under:
“As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as 32 vessels are concerned. But it cannot come to the aid of respondents. It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case; direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetrating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India, 1950 (in short `the Constitution') cannot be pressed into service in such cases. What the concept of equal treatment presupposes is existence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs at par. Even if hypothetically it is accepted that wrong has been committed on some other cases by introducing a concept of negative equality respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality. (See Union of India and Anr.
v. International Trading Co. and Anr. (2003 (5) SCC 435).”
20. We dismiss the petition with costs of Rs.10,000/ to be paid by the petitioner Association to the State Government. We also give an opportunity and liberty to the Government Officers to take appropriate action against all wrongdoers either for recovering the compensation or for prosecuting them. We further hereby direct the State Government that when they had been so vigilant in taking action against the petitioner's members, then, they must be vigilant enough in taking action against other wrongdoers. We further direct that let a copy of this order be sent to the Chief Secretary for its onward circulation to the Corporations, Municipalities, Panchayats, Urban Development Authorities and such other authorities, who have to take action against the wrongdoers for initiating action, so that the rule of law is established and people are made to understand that the wrong does not pay but one has to pay for the wrong...”
(emphasis supplied)
12. The observations of the Division Bench squarely apply to the case in hand. Though the learned advocate for the petitioner has maintained that respondents Nos.3 and 4 are biased against the petitioner and are acting at the behest of respondents Nos.5 to 7, no material has been placed on record in support of such allegations. As held by the Division Bench, the question of comparison in the form of discrimination should not be allowed to be used in case the wrongdoer is relying upon the illegal action of any other wrongdoer. The petitioner cannot raise the plea of discrimination qua respondents Nos.5 to 7 in this regard.
13. Insofar as the action taken against the petitioner is concerned, it appears to be a consequence of the order of the Mamlatdar dated 18.01.2011.
14. The respondentauthorities are not estopped from taking appropriate action, in accordance with law, against respondents Nos.5 to 7. From the material on record, it is not known whether respondents Nos.5 to 7 have challenged the order dated 18.01.2011 passed by the Mamlatdar, before any forum. It is also not known to what extent the order of the Mamlatdar has been implemented against the concerned respondents. It is expected of the concerned respondents to look into the matter and act in a manner that upholds the law.
15. Insofar as the prayers made by the petitioner are concerned, they are specifically against the eviction of the petitioner from the piece of Government land occupied by him, and the regularization of his occupation thereupon. As the abovementioned order of the Mamlatdar declaring the petitioner to be an encroacher has attained finality, the said prayers cannot be granted in favour of an encroacher.
16. There is another aspect of the matter that deserves consideration. The petitioner had filed Special Civil Application No.7049 of 2011, that was withdrawn by him with a view to availing of the alternative remedy. The Civil Suit instituted by the petitioner, after the passing of this order, has been withdrawn by order dated 10.08.2011. No liberty has been reserved to the petitioner by this Court for filing a fresh petition on the same cause of action. The petitioner could not have filed the present petition on the same cause of action, without express liberty being granted by the Court.
17. In Sarguja Transport Service v. State Transport Appellate Tribunal, Gwalior and others – AIR 1987 SC 88, the Supreme Court has held as below:
“9. The point for consideration is whether a petitioner after withdrawing a writ petition filed by him in the High Court under Art.
226 of the Constitution of India without the permission to institute a fresh petition can file a fresh writ petition in the High Court under that Article. On this point the decision in Daryao’s case (supra) is of no assistance. But we are of the view that the principle underlying R.1 of O.XXIII of the Code should be extended in the interests of administration of justice to cases of withdrawal of writ petition also, not on the ground of res judicata but on the ground of public policy as explained above. It would also discourage the litigant from indulging in benchhunting tactics. In any event there is no justifiable reason in such a case to permit a petitioner to invoke the extraordinary jurisdiction of the High Court under Art. 226 of the Constitution once again. While the withdrawal of a writ petition filed in a High Court without permission to file a fresh writ petition may not bar other remedies like a suit or a petition under Art. 32 of the Constitution of India since such withdrawal does not amount to res judicata, the remedy under Art. 226 of the Constitution of India should be deemed to have been abandoned by the petitioner in respect of the cause of action relied on in the writ petition when he withdraws it without such permission. In the instant case the High Court was right in holding that a fresh writ petition was not maintainable before it in respect of the same subjectmatter since the earlier writ petition had been withdrawn without permission to file a fresh petition. We, however, make it clear that whatever we have stated in this order may not be considered as being applicable to a writ petition involving the personal liberty of an individual in which the petitioner prays for the issue of a writ in the nature of habeas corpus or seeks to enforce the fundamental fight guaranteed under Art.21 of the Constitution since such a case stands on a different footing altogether. We however leave this question open.”
(emphasis supplied)
18. In view of the principles of law enunciated in the abovereferred to judgment as well, the petitioner is not entitled to maintain the present petition.
19. In the ultimate analysis, and for the aforestated reasons, the petition must fail. It is, accordingly, rejected.
(Smt. Abhilasha Kumari, J.)
(sunil)