1. Rule. Mr. Pranav S.Dave, learned Assistant Government Pleader, waives service of notice of Rule for respondents Nos.1 to 4. Respondent No.5 has been served but has chosen not to defend the petition, therefore, it is not necessary to issue notice of Rule to him.
2. By preferring this petition under Article 226 of the Constitution of India, the petitioner has prayed for the issuance of a writ of mandamus or a direction to the respondents, to grant occupancy rights qua the 'Vada' land and, further, to quash and set aside the order dated 23-05-2011, passed by the Additional Secretary (Appeals), Revenue Department, who is impleaded as the second respondent.
3. The brief factual background of the case is that, the petitioner is an agriculturist, residing in village Shekhpar, Taluka Muli, District Surendranagar. It is the case of the petitioner that for the last more than 40 years, he is using a strip of land as a “Vada” (enclosure for keeping cattle, fodder, farming implements etc., with no permanent construction). On 15-06-1999, the petitioner made an application to the Mamlatdar, Muli, requesting that he be granted occupancy rights with regard to the said Vada land. The Mamlatdar called upon the petitioner to submit a fresh application on proper format, which was done by the petitioner on 19-06-1999. The application made by the petitioner was rejected by the Mamlatdar by order dated 29-09-2001, stating that occupancy rights cannot be granted to the petitioner, as the Vada in question has not been registered in the Vada Register. This order of the Mamlatdar has not been placed on the record of the petition, but has been referred to in the memorandum of the petition and orders of the Deputy Collector, Collector and respondent No.2. Aggrieved by the order of the Mamlatdar, the petitioner appealed against the same before the Deputy Collector, Limbdi. By order dated 11/12/2003, the appeal of the petitioner came to be rejected. The petitioner approached the Collector, Surendranagar against the order of the Deputy Collector, under Section 203 of the Gujarat Land Revenue Code, 1879. The Collector upheld the order passed by the Deputy Collector and rejected the application of the petitioner, by order dated 05-07-2004. Aggrieved thereby, the petitioner preferred a revision application under Section 211 of the Bombay Land Revenue Code,1879, before the Additional Secretary (Appeals), that has been rejected by the impugned order dated 20-05-2011 (23-05-2011), giving rise to the filing of the present petition.
4. It is submitted by Mr.Satyen B.Rawal, learned counsel for the petitioner, that all the authorities, from the level of the Mamlatdar, upto respondent No.2, have rejected the case of the petitioner on the sole ground that the Vada is not registered in the Vada Register, therefore, occupancy rights cannot be granted to the petitioner. That, registration of the Vada in the Vada Register and grant of occupancy rights to an individual on appropriate terms and conditions are two separate matters that could not have been mixed up by the authorities as has been done in the petitioner's case. It is contended that the reasoning given in the orders of the authorities is misconceived and has resulted in a jurisdictional error.
4.1. It is further contended that it is the duty of the Talati-cum-Mantri of the Gram Panchayat to maintain the Vada Register properly, as per the Government Resolution dated 25-04-1980, that lays down the Vada Rules. It is urged that the non-inclusion of the Vada in question in the Vada Register by the Talati-cum-Mantri cannot be a ground for not granting occupancy rights in respect of it to the petitioner.
4.2. It is further urged that a spot inspection was carried out by the Gram Panchayat and statements were recorded. The owners/occupiers of surrounding lands have no objection if occupancy rights of the Vada land are granted to the petitioner. That, the impugned order, as also the order of the other authorities below, suffer from the vice of non-application of mind, as they are trying to take advantage of their own lapse of not including the land in the Vada Register. That the Register produced by the Talati is of the Simtal Vada and not the Gamtal Vada, whereas the land being used by the petitioner falls in the Gamtal. It is contended that the findings of respondent No.2, that have been arrived at by placing reliance upon clause 13 of the Vada Rules are incorrect, as the said clause states that no new land can be alloted for the purpose of Vada in the Gamtal, whereas the Vada in question is being used by the petitioner for more than 45 years. Lastly, it is submitted that, as the impugned order suffers from non-application of mind and is erroneous, it may be quashed and set aside, and the matter remanded to respondent No.2.
5. The petition has been strongly opposed by Mr.Pranav S.Dave, learned Assistant Government Pleader, by submitting that there are concurrent findings of four authorities, based upon facts and material on record, which may not be disturbed by this Court. It is further submitted that the Government Resolution dated 25/04/1980, which lays down the Vada Rules, clearly delineates the entire procedure to be followed with regard to Vadas. The maintenance of a Vada Register is essential and the procedure for entering the Vada in the said Register along with all relevant details is to be carried out by the Talati- Cum-Mantri, which is to be countersigned by the Sarpanch of the Gram Panchayat. It is contented that there is provision to the effect that necessary correction can be carried out in the Vada Register upon an application being made by the holder of the Vada land. However, in the present case the Vada of the petitioner is not registered in the Vada Register at all, therefore, occupancy rights in respect of a Vada that has not been entered in the Vada Register, cannot be granted. The primary requirement of entering the Vada in the Register is missing and at no point of time has the petitioner made an application for inclusion of the Vada in the Register. The Vada Register was prepared in the year 1962, and no objection has been raised by the petitioner till now. The order passed by respondent No.2 and the other authorities below are in consonance with the Government Resolution dated 25/04/1980, and do not suffer from any error of law or jurisdiction, therefore, the Court may not interfere.
6. In the background of the above rival submissions, we may refer to Government Resolution dated 25/04/1980, issued by the Revenue Department, which lays down the procedure and guidelines for Gamtal (within the village) Vada and Simtal (on the periphery of the village) Vada, and contains the policy of the State Government in this regard. Clause 4 stipulates that a Vada Register is to be maintained in every village, in which the details of the person holding the Vada, measurements of the Vada, description of the Vada land with reference to the situation and direction, is given and details such as, whether the Vada is nearby the homestead of the holder or not, the purpose for which the Vada is being used, and the occupation of the Vada holder, are to be entered. The Sarpanch of the Gram Panchayat is to authenticate the information entered into the Vada Register and append his signature on it. It is further provided that the responsibility for maintaining the Vada Register is that of the Talati-Cum-Mantri. Clause 4 further stipulates that the details entered into the Vada Register can be altered or corrected from time to time, upon an application made by the holder of the Vada, which alteration or correction is to be countersigned by the Sarpanch. The seal of the Mamlatdar is to be appended on each page of the Vada Register. A note is to be made on the last page of the Register, specifying how many pages the Register contains, which is to be signed by the Mamlatdar.
7. It is further stated in the said Government Resolution that the Vada Samhita Rules are in force from 1968, and would not apply to any orders regarding Vadas before their coming into force. The procedure for grant of occupancy rights in respect of land used as Vadas under the Vada Samhita Rules, 1968 has also been detailed. It is stated that occupancy rights can be given to Vada holders after ascertaining the details, (such as those mentioned into the Vada Register) and applications for this purpose are to be submitted to the Mamlatdar, and the date and serial number of such applications is to be entered into a Register maintained by the Taluka Panchayat.
8. The petitioner had made an application on 15/06/1999, and another one, in the prescribed format, on 19/06/1999, for grant of occupancy rights over the Vada land. The said application was rejected by the Mamlatdar on the ground that the Vada is not registered in the Vada Register. As has been noted hereinabove, the petitioner has been unsuccessful in his challenge to the order of the Mamlatdar, Deputy Collector and Collector, whose order has been confirmed by the Additional Secretary (Appeals). All these authorities have consistently held that the Vada of the petitioner has not been entered into the Vada Register as per Government Resolution dated 25/04/1980, therefore, occupancy rights in respect thereof cannot be granted to him. In the considered view of this Court, no fault can be found with the conclusion arrived at by the authorities below, in view of the factual position as well as the provisions of the said Government Resolution. The submission advanced by the learned advocate for the petitioner that entering the Vada land in the Register and granting occupancy rights are two different things that have been wrongly mixed up by the authorities, is not correct; as it clearly emerges from Government Resolution dated 25/04/1980, that the Vada land is first to be entered into the Vada Register and after ascertaining the details, the application for grant of occupancy rights is to be processed. There is no provision in the said Government Resolution that states that applications for grant of occupancy rights in respect of Vada land that has not been entered in the Register are to be processed, or granted. Such a course would nullify the entire procedure laid down in the said Government Resolution.
9. The submission that the petitioner cannot be made to suffer because the Talati-Cum-Mantri, at the relevant point of time, has not entered the Vada in question in the Vada Register is not worthy of acceptance. The Vada Register has been maintained since 1962, as per the affidavit-in-reply filed on behalf of respondents Nos.1,2,3 and 4. It is averred in the petition that the petitioner is using the Vada for over forty years, but the exact year is not known, and there is no material on record to this effect. Whether the petitioner was occupying the Vada when the Vada Register was prepared, or not, is another moot question. There is no reason to believe that the Talati-Cum-Mantri, at the relevant point of time has deliberately not entered the Vada in question in the Vada Register, or has been careless in his obligation to maintain the said Register properly. Apart from a bald statement, the petitioner has failed to produce any material on record to substantiate this allegation. The Government Resolution provides that the details in the Vada Register can be changed or altered at the behest of the Vada holder, after making an application, at any point of time. The petitioner could have made an application to have the Vada entered into the Vada Register, but at no point of time, for all these years, has the petitioner made such an application. A copy of the Vada Register has been produced by Respondent Nos.1,2,3 and 4 as Annexure R-II with their affidavit-in-reply, which shows about 11 Vadas have been entered in the Vada Register, as per laid down procedure. There was no reason not to enter the Vada in question, if the petitioner had been using it as such, at the relevant point of time. It was open to the petitioner to approach the concerned authorities to enter the Vada in the Register, even later on.
10. It has been observed by the Additional Secretary (Appeals) in the impugned order, that looking to Clause 13 of the Government Resolution dated 25/04/1980, no new land can be granted for a Gamtal Vada. This finding is in relation to the submission of the petitioner that the Vada Register pertains to Simtal Vadas and not Gamtal Vadas. It is the petitioner's case that the Vada in question is in the Gamtal, therefore, in view of the fact that it has not been entered in the Vada Register, Clause 13 would be relevant, as it states that no new land can be granted for Vadas in the Gamtal.
11. The aspect that the persons whose statements have been recorded, have stated that they have no objection if occupancy rights are given to the petitioner, cannot override the provisions of the Government Resolution, or overshadow the basic fact that the Vada in question has not been entered in the Vada Register. The submission that the concerned authorities are trying to take undue advantage of their own wrong in not entering the Vada in the Register, is not at all convincing, as no advantage is stated to have been derived by them, in not entering the Vada in the Register.
12. In view of the provisions of the Government Resolution dated 25/04/1980, and the fact that the Vada in question has not been entered in the Vada Register, the consistent findings of fact based upon the material on record, as arrived at in the impugned orders passed by the authorities below, do not warrant interference, as they do not suffer from any legal infirmity.
13. For the aforestated reasons, there is no merit in the petition, which stands rejected.
14. Rule is discharged. There shall be no orders as to costs.
(Smt.Abhilasha Kumari,J) arg