1. By way of this petition the petitioner has prayed for quashing and setting aside the order dated 07th October, 1999 passed by the Additional Chief Secretary, Revenue Department (Appeals), Gujarat State, Ahmedabad by which the Secretary dismissed the Revision Application filed by the petitioner against the order of the Collector dated 30th April, 1994. The petitioner is the owner and the occupier of the land bearing Survey No.637/2 admeasuring 910 Sq.Mtrs. situated in the sim of Village Odhav, Taluka City and District Ahmedabad. It is the case of the petitioner that he has inherited ancestral land and he is in possession of the said land since long and it is a old tenure land. The petitioner put the said land to non-agricultural use and thereafter when he made some construction, he was subjected to notice under Section 79 of the Bombay Land Revenue Code. The City Deputy Collector, Ahmedabad initiated proceedings as it is breach of condition and the said case is numbered as Sharatbhang Case No.19 of 1993. As per the said notice, the land in question is new tenure land in which the petitioner has carried out construction without permission and he was asked to show cause as to why he should not be removed from the said land as having committed breach of condition on which the land was allotted to him as a new tenure land. The City Deputy Collector by an order dated 30th August, 1993 under Section 79A of the Bombay Land Revenue Code by which the petitioner was evicted from the land in question and it was ordered that the land should be confiscated to the State. The aforesaid order was challenged by the petitioner by way of Appeal being Appeal No.161 of 1993. The said Appeal was dismissed by the District Collector, Ahmedabad vide order dated 30th April, 1994, against which the petitioner preferred Revision Application before the State Government. The District Collector, Ahmedabad, in Appeal found that in record the land is shown as new tenure land and even in Town Planning Scheme also, the said land is described as new tenure land. It was accordingly found that since the petitioner has not utilised the said land as agricultural land and has made construction without permission, it is not permissible so far as new tenure land is concerned and hence, the Appeal was dismissed by the District Collector, Ahmedabad. The petitioner has preferred Revision Application against the said order, which also came to be rejected by order dated 07th October, 1999 by the Special Secretary, Revenue Department, State of Gujarat. The said order is impugned in the present petition at the instance of the petitioner.
2. Mr.G.M. Amin, learned counsel for the petitioner, argued that except recording some entries in the revenue record that it is a new tenure land, there is nothing on record to show that the land in question is a new tenure land and according to the petitioner, it is an ancestral land and it was never granted either to the petitioner or his predecessor as a new tenure land. It is submitted that there is nothing on record to show that the land was allotted to the petitioner or his predecessor on certain conditions by which the petitioner was not permitted to use it for any other purpose. It is submitted that there is no order on record by which it can be said that it was allotted to the petitioner as a new tenure land. It is submitted that in any case, the land was put up for non-agricultural use as back as in the year 1986-87 and on that basis, construction was made in the year 1992. The initial proceedings of the year 1993 suffers from delay and latches. It is submitted by Mr.Amin that if the land was used for non- agricultural purpose in the year 1986-87, case regarding breach of condition was initiated in the year 1993 by the City Deputy Collector. The same therefore, is, clearly suffers from delay and latches. It is argued by Mr.Amin that in any case, it is well settled preposition of law that government machinery must start to function within reasonable time period. When the land is not used for agriculture purpose in the year 1986-87, proceedings could have been started within one year, for which he has relied upon certain judgments taking such view. It is further submitted that during the pendency of the petition, a Certificate dated 20th May, 2011 was received by the Talati, Odhav, Taluka-City, in which it is stated by the Talati that there is no entry available on record in connection with treating the land in question as a new tenure land. The said Certificate dated 20th May, 2011 is shown to Mr.Rupareliya, learned Assistant Government Pleader and the same is taken on record.
Mr.Amin has also relied upon Circular dated 16th March, 1982 issued by the Revenue Department, State of Gujarat wherein in paragraph 2 it is stated that if without any direct evidence or circumstantial evidence, a particular land which has been granted as a new tenure land, and if it is not possible to prove that such land is new tenure land, then only on the basis of the revenue record, i.e. in 7-12, breach of condition proceeding cannot be undertaken and land cannot be confiscated to the State Government. It is also argued by learned counsel for the petitioner that in any case, assuming that it is a new tenure land, the petitioner is ready to pay required premium as per the rules and regulations in order to convert the new tenure land into any other use instead of confiscating the land to the State Government.
3. Learned Assistant Government Pleader Mr.R.H. Rupareliya on the other hand submits that finding of fact is given by three Authorities stating the land in question as new tenure land. It is submitted that before none of the Authorities the petitioner had argued that alternatively he is ready to pay the premium assuming that it is a breach of condition and converting the new tenure land to any other use without permission.
4. Heard learned counsel for the respective parties and also gone through the record and proceedings as well as orders passed by the Authorities below. It is the contention of the petitioner that the land in question was put to non-agricultural activities seven years back prior to issuance of notice. The said aspect has not been dealt with by the Authorities as to whether the proceedings suffers from delay and latches. It is required to be noted that there is nothing on record to show that what were the conditions on which the land was allotted to the petitioner or his predecessor in title as a new tenure land. The Circular on which reference is made by Mr.Amin provides that unless proper evidence is available regarding status of the land, no order of confiscation of land should be passed. So far as Certificate of Talati is concerned, it is a subsequent document, which was not available with the Authorities when the matter was decided by the Authorities. Considering the same, it would be just and proper to remand the matter back to City Deputy Collector to decide the matter de novo. The petitioner will be at liberty to produce the said Certificate of Talati before the City Deputy Collector, on which reliance has been placed in this matter. The City Deputy Collector may find out regarding tenure of the land in question. If there is any Kabulatmana on the part of the petitioner or his predecessor in title, the same may be considered as per the Land Revenue Rules. The Authority may also consider the question about delay and latches. After hearing the petitioner and after considering the relevant records, the City Deputy Collector shall pass afresh decision in this behalf. The say of the petitioner regarding his willingness to pay premium also may be considered, which is ofcourse alternative argument, if it is found that there is breach of condition.
5. Subject to what is stated aforesaid, present petition is partly allowed. Order passed by the City Deputy Collector confirmed in Appeal and in Revision Application is hereby quashed and set aside. Interim relief, if any, shall stand vacated. Rule is made absolute to the aforesaid extent.
(P.B. Majmudar, J) Anup