STATE OF GUJARAT v. HARIBHAI RAICHANDBHAI GOTHI (PATEL)

CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI HONOURABLE MR.JUSTICE A.J. DESAI LPA/1686/2011 JUDGMENT Date : 17/04/2012 ORAL JUDGMENT (Per : HONOURABLE MR.JUSTICE V. M. SAHAI)

1.Admit. With consent of learned advocates for the parties, we have taken up this appeal for final disposal today.

2.We have heard Mr. NJ Shah, learned AGP for the State and Mr. AY Bachani, learned Counsel for the respondent. This LPA has been filed challenging the judgment of learned Single Judge dated 25/10/2010 passed in SCA no. 13680/2010.

3.The brief facts of the case are that the respondent purchased land bearing block no. 81 admeasuring hectare 1-41(A) – 64 sq. mtr. from one Thakor Amarsing Talaji by means of registered sale deed dated 1/12/1987. Copy of the registered sale deed is on record, which mentioned that the petitioner has purchased an old tenure land. The name of the petitioner was recorded in village form no. 6 being entry no. 256 and it was certified by Mamlatdar on 20/1/1989. It appears that the vendor of the land made a complaint to the Deputy Collector that he has sold new tenure land to respondent Mr. Haribhai Raichandbhai Gothi. LPA/1686/2011 JUDGMENT

4.Therefore, Deputy Collector had issued notice on 15/5/2007 stating that sale of new tenure land is not permissible and only on the basis of complaint, Deputy Collector held that the land was new tenure and the sale is not permissible without prior permission from the State Government and without taking into consideration, the mischief was tried to make by Thakor Amarsing Talaji, who has sold land to the respondent, by lodging false complaint when the sale deed has been mentioned that land was old tenure.

5.The Deputy Collector passed an order on 28/6/2007 and directed that the land being new tenure land to be handed over to the State Government. The order of Deputy Collector was challenged in Appeal no. 33/2007 before the Collector, who has also rejected the appeal on 19/3/2008. Thereafter, respondent filed revision application before the Special Secretary, Revenue Department, which was also rejected on 19/9/2008. All these three orders were challenged by respondent before learned Single Judge. The learned Single Judge without going into the factual aspect of the matter and taking into consideration facts of the case held that vendor of the land has committed mischief. Learned Single Judge did LPA/1686/2011 JUDGMENT not enter into the merits of the case that the vendor of the land namely Thakor Amarsing Talaji has committed mischief on the respondent and has filed false complaint before Deputy Collector. In as much as, in the sale deed, he himself admitted fact that the land is being old tenure land. Further, learned Single Judge failed to appreciate that the sale deed was executed on 1/12/1987 and name of the respondent was mutated on 20/1/1989. The complaint was made in the year 2007 by the vendor of the respondent after 19 years of sell to the respondent. It is prima facie illegally held that land is being a new tenure land after 19 years, precisely relying on the mischievous person.

6.Mr. N. J. Shah, learned AGP has placed reliance on the decision of the Apex Court in case of Ritesh Tiwari Vs. State of U. P. [2010 (10) SCC 677], and the decision of National Textile Co. Ltd Vs. Nareshkumar B. Jagad [(2011) 10 SCALE 28], and has urged that it was neither pleaded in the writ petition nor any relief was claimed in the representation that if the appellant deposits amount of the premium/conversion of the charges for the land in dispute, his application may be considered by Collector, Banaskantha and in absence of pleadings, LPA/1686/2011 JUDGMENT learned Single Judge was not justified to issue such a direction. It has been held by the Apex Court in the decision of Ritesh Tiwari Vs. State of U.P. [2010 (10) SCC 677] in para 24 and 25 as under: “24. It is a settled proposition of law that a party has to plead the case and produce/adduce sufficient evidence to substantiate his submissions made in the petition and in case the pleadings are not complete, the Court is under no obligation to entertain the pleas. In Bharat Singh v. State of Haryana (1988) 4 SCC 534, this Court has observed as under: (SCC p.543,Para 13) :- "13. … In our opinion, when a point, which is ostensibly a point of law is required to be substantiated by facts, the party raising the point, if he is the writ petitioner, must plead and prove such facts by evidence which must appear from the writ petition and if he is the respondent, from the counter affidavit. If the facts are not pleaded or the evidence in support of such facts is not annexed to the writ petition or the counter- affidavit, as the case may be, the Court will not entertain the point. There is a distinction between a hearing under the Code of Civil Procedure and a writ petition or a counter- affidavit. While in a pleading, i.e. a plaint or written statement, the facts and not the evidence are required to be pleaded. In a writ petition or in the counter affidavit, not only the facts but also the evidence in proof of such facts have to be pleaded and annexed to it." (Emphasis added) (See also Vithal N. Shetti v. Prakash N. Rudrakar (2003) 1 SCC 18; Devasahayam v. LPA/1686/2011 JUDGMENT