BIHARIDAN JIVABHAI GADHVI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) PRESENT petition is filed by the petitioner under Article 226 of the Constitution of India as well as under the Bombay Land Revenue Code 1879 (hereinafter referred to as 'the Code') for the prayers, inter alia, that appropriate writ, order or direction may be issued for quashing and setting aside the impugned order passed by the Respondent No.1 dated 07.12.1991 at Annexure -L and also the interim relief regarding stay of execution and operation of the impugned order, on the grounds stated in the petition.

(2.) HEARD learned Senior Counsel Shri S. N. Shelat appearing with learned Advocate Shri Shital R. Patel for the petitioner and learned AGP Shri Bharat Vyas for the Respondents.

(3.) LEARNED Senior Counsel Shri S. N. Shelat has referred to the background of the case and submitted that there are two aspects: (1) whether the land is gaucher is required to be considered and (2) the another aspect is regarding allotment of the space to the persons like the present petitioner. Learned Senior Counsel Shri Shelat submitted that the order of allotment is of 1987 and in fact the possession has been given for which certificate was also issued. He further submitted that the land has been allotted to the petitioner and huge amount has been invested for its development and cultivation of coconut. The petitioner has been growing coconut trees, for which he has continued use of the land. He submitted that as per the order at Annexure -D the lease has been extended for a period of 20 years. He referred to the certificate given by the Talati produced at Annexure -F and submitted that since the petitioner is in occupation and possession for these years, it may not be unilaterally taken back and any exercise of powers is erroneous. He also referred to the order passed by the Collector under Section 83 in support of his submissions. He also referred to the showcause notice dated 16.10.1990 at Annexure -K and the impugned order passed by the Secretary (Appeals), Revenue Department dated 07.12.1991. He has also referred to the earlier round of litigation and submitted that this petition was dismissed by the High Court (Coram: Hon'ble Mr. Justice Akil Kureshi, J) vide its order dated 24.08.2009 and the Letters Patent Appeal No.1742 of 2009 in Special Civil Application No.2248 of 1992 was filed carrying the said judgment and order in appeal. He pointedly referred to the order of the Hon'ble Division Bench (Coram: Hon'ble the Chief Justice Mr. S. J. Mukhopadhaya and Hon'ble Mr. Justice K. M. Thaker) passed in Letters Patent Appeal No.1742 of 2009 in Special Civil Application No.2248 of 1992 dated 06.09.2011 and the observation made that the matter was remanded to the learned Single Judge. He referred to this judgment and submitted that two aspects as stated in Para No.11.2 in the judgment are required to be considered. Learned Senior Counsel Shri Shelat submitted that the Court may also consider that it has been allotted to the petitioner and the development has taken place as also the petitioner has invested sufficient amount for its development. Therefore, whether it requires regulation or whether the order passed is justified.