IN THE HIGH COURT OF GUJARAT AT AHMEDABAD LETTERS PATENT APPEAL No. 2572 of 2010 In SPECIAL CIVIL APPLICATION No. 13464 of 2010 With LETTERS PATENT APPEAL No. 2573 of 2010 In SPECIAL CIVIL APPLICATION No. 13429 of 2010 For Approval and Signature:
HONOURABLE MR.JUSTICE V. M. SAHAI HONOURABLE MR.JUSTICE A.J. DESAI =========================================
1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial
4 question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================= MANSUKHBHAI M PARMAR (HARIJAN), HEIR OF DECEASED MULJIBHAI Versus STATE OF GUJARAT & ORS ========================================= Appearance :
MR PERCY KAVINA, SR COUNSEL ASSISTED BY MR TATTVAM K PATEL for Appellants MS. JIRGA JHAVERI, AGP for Respondents ========================================= CORAM : HONOURABLE MR.JUSTICE V. M. SAHAI and HONOURABLE MR.JUSTICE A.J. DESAI Date : 13/03/2012 COMMON JUDGMENT (Per : HONOURABLE MR.JUSTICE A.J. DESAI)
1 By way of the present appeals under Clause-15 of the Letters Patent, the appellants have challenged the Common Oral Order dated 11.10.2010 passed in the above referred Special Civil Applications by which the learned Single Judge dismissed the said Special Civil Applications wherein the appellants–original petitioners have challenged the decision of respondent No.1 dated 27th April, 2010 rejecting the Revision Applications filed by the appellants under the provisions of the Bombay Land Revenue Code, 1879.
2 Sub-paragraph-2 of the order reads as under:
“By way of filing these two petitions, the petitioners have challenged the order passed by the revisional authority dismissing the revision applications filed by the petitioners and confirming the orders passed by the authorities below. The case of the petitioners is that for a breach of conditions of the grant by which the land was granted to the petitioners, the grant was cancelled. The learned counsel for the petitioners has requested to pass similar order that was passed in Special Civil Application No.7675 of 2010 in the present matter also.”
3 It appears that the learned counsel, who appeared for the petitioners before the learned Single Judge, requested to pass similar order which was passed in Special Civil Application No. 7675 of 2010. The learned Single Judge after quoting the order passed in the said petition, disposed of the said matters with certain directions.
4 Though, the order was passed as per the request of the petitioners, we have heard the appellants through their Advocate at length.
5 Brief facts arising from the case are as under:
5.1 That the father of the appellants in Letters Patent Appeal No.2572 of 2010 was granted 9 acres of land in village Bhutkotda, Taluka-Tankara, District-Rajkot, by order of the Deputy Collector, Morbi, on 11.6.1968. While granting the land to the father of the present appellant, certain conditions were imposed upon the grantee. In the present case, Condition No.9 and Condition No. 10 are relevant conditions. Condition No.9 binds on the allottee to commence the cultivation within two years of allotment and as per Condition No.10, the State was empowered to take back the land, if, without sufficient cause/reason the allottee does not cultivate the land which was granted by the Deputy Collector.
5.2 A report was prepared by the Mamlatdar, Morbi, that the allottee had committed breach of Conditions No. 9 and 10 and, therefore, appropriate proceedings shall be initiated under the provisions of the Bombay Land Revenue Code. It appears that Notices were issued to the allottee but since he was not residing in the village and the Talati-cum-Mantri of the village had no information about the whereabouts of the allottee, on 10.2.1989, a panchnama was prepared and the notice was affixed on the disputed land.
5.3 By Order dated 24.2.1989, the Deputy Collector, who initiated the proceedings for cancelling the allotment, after detailed reasons and after perusing the record, came to the conclusion that the allottee was not cultivating the land for which it was allotted by the Authority way back in 1968. It also appears from the record and particularly Form No.7/12, which shows the occupiers as well as the details of crops, that the allottee was not cultivating the land in the year 1971-72; 1972-74 till 1982-83; 1984-85. It is also surfaced from the record that since 1985-86 onwards instead of allottee, another person, namely, Bhavan Arjanbhai, was cultivating the said land. In view of the said factual aspect and having gone through the record, the Deputy Collector by its order dated 24.2.1989 arrived at a conclusion that the allottee had committed breach of the conditions which were imposed by the Deputy Collector while allotting the land by order dated 11.6.1968 and quashed the said order dated 11.6.1968 and, accordingly, the Entry No. 442, which was mutated as per the Order of 1968, was also quashed.
5.4 Widow of Muljibhai Khimabhai (i.e. allottee), being the legal heir, challenged the said order dated 24.2.1989, passed by the Deputy Collector, before the Collector, by way of an Appeal in the year 2000 i.e. after about 11 years. By a detailed order dated 28.4.2003, the Collector dismissed the said appeal. Though, there was a delay of about more than 10 years in preferring the appeal, it appears from the order passed by the Collector that the Collector has perused the documentary evidence and came to the conclusion that the appellant had committed breach of conditions of the order by which the land was allotted to her husband. It has also been observed by the Collector that in support of the delay, she has failed in producing any documentary evidence and/or sufficient reasons for preferring the appeal after 10 years. The Collector has also observed that the possession of the disputed land was handed over to some third persons for cultivation and by acting in this manner, the allottee had committed breach of the conditions imposed while issuing the allotment order way back in the year 1968.
5.5 The Order passed by the Collector in 2003 was challenged by the legal heirs of the allottee by way of filing Revision Application before the State Government in the year 2007.
The Revision Application was dismissed by the Secretary, Revenue on 31.7.2008 mainly on two grounds that the legal heirs of the allottee challenged the order of the Collector after about 10 years and challenged the order of the Collector after about four years before the Revisional Authority.
5.6 Since the Revision Application was dismissed on the ground of delay, this Court vide order dated 2.8.2008 passed in Special Civil Application No.13220 of 2008 quashed the order passed by the Revenue Department and directed the Revisional Authority to decide the matter on merits. As per the direction of this Court, the Secretary, Revenue Department, heard the appellant and by reasoned order, the Revision Application was dismissed, which was challenged by the appellant- petitioner by way of Special Civil Application No. 13464 of 2010.
6 Similarly, the fact in the case of Letters Patent Appeal No. 2573 of 2010 are as under:
6.1 That the appellant was granted 8 acres of land in village Targhari, Taluka-Parghari, District-Rajkot, by order of the Deputy Collector, Morbi, on 23.6.1970. While granting the land to the appellant, certain conditions were imposed upon him. In the present case, Condition No.9 and Condition No. 10 are relevant conditions. Condition No.9 binds on the allottee to commence the cultivation within two years of allotment and as per Condition No.10, the State was empowered to take back the land, if, without sufficient cause/reason the allottee does not cultivate the land which was granted by the Deputy Collector.
6.2 A report was prepared by the Mamlatdar, Morbi, that the allottee had committed breach of Conditions No. 9 and 10 and, therefore, appropriate proceedings shall be initiated under the provisions of the Bombay Land Revenue Code. It appears that Notices were issued to the allottee but it appears from the panch rojkam that the petitioner was not residing at the place.
6.3 By Order dated 29.11.2003, the Deputy Collector, who initiated the proceedings for cancelling the allotment, after detailed reasons and after perusing the record, came to the conclusion that the allottee was not cultivating the land for which it was allotted by the Authority way back in 1970. It also appears from the record and particularly Form No. 7/12, which shows the occupiers as well as the details of crops, that the allottee was not cultivating the land in the year 1990-91 to 1998-99 and then 2000-01 and 2001-02. In view of the said factual aspect and having gone through the record, the Deputy Collector by its order dated 29.11.2003 arrived at a conclusion that the allottee had committed breach of the conditions which were imposed by the Deputy Collector while allotting the land by order dated 23.6.1970 and quashed the said order dated 23.6.1970 and, accordingly, the Entry No. 557, which was mutated as per the Order of 1970, was also quashed.
6.4 Appellant, feeling aggrieved by the said order dated 29.11.2003 passed by the Deputy Collector, challenged the same before the Collector, by way of an Appeal in the year 2007 i.e. after about 4 years. By a detailed order dated 16.7.2007, the Collector dismissed the said appeal. The Collector has recorded that the petitioner was not residing in the village and was not cultivating the land. It also appears from the order of the Collector that the appellant had not paid the revenue as well as the Education Cess for number of years. It has been observed by the Collector that since the appellant was residing in Kutch and the same has been supported by his ration card produced by the State Government along with the affidavit filed in the present appeal, which shows that the Mamlatdar of Bhuj, City of Kutch District, had deleted the name of the appellant from the ration card which was issued at Bhuj and the name of the appellant was entered into the ration card at Paddhari village, and that too, in the year 2008. It appears from the order passed by the Collector that the Collector has perused the documentary evidence and came to the conclusion that the appellant had committed breach of conditions of the order by which the land was allotted to him way back in the year 1970.
6.5 The Order passed by the Collector in 2007 was challenged by the appellant by way of filing Revision Application before the State Government. The Revision Application was dismissed by the Secretary, Revenue on 27.4.2010 by reasoned order, which was challenged by the appellant- petitioner by way of Special Civil Application No. 13429 of 2010.
7 We have heard Mr.Percy Kavina, learned Senior Counsel assisted by Mr. Tattvam K. Patel for the appellants and Ms. Jirga Jhaveri, learned AGP for the respondents.
8 The first argument advanced by the learned Counsel for the appellants is that no notice was served upon the allottees before passing the impugned order dated 24.2.1989 and 29.11.2003 respectively and, therefore, there is breach of principle of natural justice and, therefore both the orders are illegal and are required to be quashed and consequently the subsequents orders passed by the Collector as well as the Revenue Secretary are also required to be quashed and set aside.
9 The second contention advanced by the learned Counsel for the appellants is that the Condition No.10 of the order of allottment provides that the Government can confiscate the land only if the land is not cultivated by the allottee without reasonable ground/reasons. He has submitted that the authority has not come to the conclusion that there were no sufficient grounds for not cultivating the lands since the appellant had contended before the Collector that the allottee was suffering some illness and he had to visit Ahmedabad time and again and, therefore, the land was not cultivated. Another ground raised by the allottee for not cultivating the land was that because of the drought the land was not cultivated.
10 The third contention raised by the learned counsel for the appellants, which is raised for the first time in these appeals, is with regard to a Notification issued by the Government on 18th December, 2004 and submitted that the said Notification would apply in the case of the appellants. At this juncture, we would like to observe that as per the direction issued by this Court, the State Government has produced the said Resolution dated 18th December, 2004 on the record along with an affidavit. This Resolution is a consolidated resolution, by which the Government has considered not less than 132 earlier Government resolutions/ notifications issued by the Revenue Department. Part-4 of this Resolution provides that if a mistake has been committed by a person who has been allotted a land and who belongs to scheduled caste, the land shall be re-granted on certain conditions. In his submission, this was the first mistake committed by the appellants who belonged to scheduled caste.
11 On the other hand, learned AGP Ms. Jirga Jhaveri has supported the orders passed by the authorities below.
12 With regard to the contention about non-serving of the notice issued to the appellants of Letters Patent Appeal No.2572 of 2011 is concerned, it is clear from the record that the Deputy Collector had perused the record which was produced by the Talati- cum-mantri of the village and who deposed that the appellant was not residing in the village and he was not aware about the address of the appellant. It has also come on record that the notice issued by the Deputy Collector was affixed on the disputed land and a panchnama was prepared by the Talati. In view of this, the contention is without any basis and, therefore, the same is rejected.
13 As far as the appellant of Letters Patent Appeal No.
2573 of 2010 is concerned, a procedure was undertaken by the authorities to serve the appellant and the statement of Talati-cum- mantri of the village was recorded, who has stated that the appellant was not residing in the village and, therefore, panch rojkam was prepared about non-availability of the appellant in the village.
14 Though the appellants have produced some affidavits of the relatives suggesting that the appellants are the residents of the villages in which the disputed lands are situated, are not sufficient evidence to establish that they were residing in the village in absence of other documentary evidence like ration card, election card, etc.
15 We have gone through the orders passed by all the authorities below which have come to the conclusion that the appellants have committed breach of conditions. We would like to observe that the appellants have failed in establishing before the authorities below that there were sufficient reasons for not cultivating the lands for number of years. Looking to the record, it is clear that, the appellants have not cultivated the lands for years together. On the contrary, the appellant of Letters Patent Appeal No. 2572 of 2011, had transferred the land to some third person who was cultivating the land. Appellants have tried to show by producing details of rainfall in the area during the years 1991 to 2003 that the rainfall was below the standard rainfall and therefor land was not cultivated. We are unable to accept the same since the chart shows that in different years rainfall was adequate to cultivate the land.
16 The last contention about the applicability of the Resolution dated 18.12.2004 is concerned, we are unable to accept the said contention on the ground that the Resolution has come into existence only on 18th December, 2004 and which would apply to those persons who have committed the breach of any conditions subsequent to the said Notification. In the present case, the appellants have committed breach of the conditions way back in the year 1989 and 2003 respectively.
17 In view of the aforesaid factual aspects, we are not inclined to entertain the present appeals and accordingly both the appeals are dismissed. The interim relief, if any, granted earlier in favour of the appellants, shall stand vacated forthwith. There shall be no order as to costs.
18 Learned Counsel Mr. Percy Kavina for the appellants at this stage orally prayed that the interim order granted by this Court may be continued. The effect of dismissal of Letters Patent Appeals is that the stay order stands discharged. Therefore, there is no question of granting or extending the interim order granted in favour of the appellants. Hence, the prayer is rejected.
(V.M. SAHAI, J.) (A.J. DESAI, J.) pnnair