- (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 ( 2010 AIR(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...."

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 said to be aggrieved party and that, they are not the persons who can be entrusted with the writ of this court.

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.

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.

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.

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.

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.

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.