1. Rule. Ms.Nisha M.Thakore, learned Assistant Government Pleader waives service of notice of Rule for respondents Nos.1 to 4. It is submitted by the learned advocate for the petitioner that the interest of respondent No.5, through his heirs, is the same as that of the petitioner. In the circumstances, there is no requirement of issuing separate notice of Rule to the heirs of respondent No.5. On the facts and in the circumstances of the case, and with the consent of learned counsel for the respective parties, the petition is being heard and finally decided.
2. The petitioner has preferred this petition under Articles 226 and 227 of the Constitution of India, being aggrieved by order of the Deputy Collector, Anand, dated 29/06/2000, whereby the land in question has been ordered to be forfeited to the Government, the order dated 16/03/2005 of the Collector, Anand, confirming the order of the Deputy Collector, and the order dated 27/04/2012 passed by the Secretary (Appeals), rejecting the revision application filed by the petitioner against the aforesaid order of the Collector.
3. Briefly stated, the facts of the case are that land bearing Revenue Survey No.1482/B and 1482/A, corresponding to City Survey No.1439/B and 1440, were given on lease by the State Government to Lalchand Chunilal Bhatt (respondent No.5) and the petitioner, both being brothers. By the order dated 09.01.1926, the land in question was given on lease for a period of 50 years with certain conditions. On 18.07.1998, respondent No.5 made an application to the City Survey Superintendent, Umreth, for renewal of the lease. The City Survey Superintendent, in turn, wrote to the Deputy Collector, Anand, in this regard, stating that one Prakashbhai Bapuji Savarniwala, and several others, were living on the land in question since several years as sub-tenants, having constructed houses thereupon. They had also obtained electricity connections. The Deputy Collector got recorded the statements of 28 persons living on the land in question. As per the statements it emerged that they had been permitted to put up constructions on the land and live there by the petitioner and respondent No.5. They were residing on the land since the last 40 to 50 years as sub-tenants. The petitioner and respondent No.5 were stated to be taking rent from them, and rent receipts were produced before the Deputy Collector as evidence of this. It also emerged that the petitioner and respondent No.5 were not in possession of the land in question as Respondent No.5 lived in Umreth, whereas the petitioner lived in Dahod. The case of the petitioner and respondent No.5 before the Deputy Collector was that the land in question had been given on lease to them by order dated 09.02.1926 for a period of 50 years. By an oral family arrangement, land bearing City Survey No.1439/B admeasuring 505.85.86 square metres and land bearing City Survey No.1440 admeasuring 644 square metres came to the share of the petitioner, whereas the remaining land of City Survey No.1440 went to the share of respondent No.5. The forefathers of the petitioner and respondent No.5 had constructed a house on only two Gunthas of land, and the rest of it was lying open. It is the case of the petitioner and respondent No.5 before the Deputy Collector that trespassers entered the vacant land and started living there, purporting to be tenants of the petitioner and respondent No.5. That, the petitioner and respondent No.5 have not taken any rent from these persons, who were threatening the petitioner and respondent No.5 and, therefore, the rent receipts produced by these persons cannot be taken into consideration.
4. The Deputy Collector ordered a Panchnama to be prepared of the land in question, which was done, on 09.06.2000. The Panchnama states that about 26 persons are residing upon the land in question after constructing huts, since the last several years and the petitioner and respondent No.5, to whom the land has been leased, are not in possession of the land. The Deputy Collector came to the conclusion, on the basis of the material on record, that this constitutes a breach of the conditions of the lease as the land is not being used for the purpose for which it had been leased. He,therefore, directed forfeiture of the land in question, to the State Government. This order of the Deputy Collector has been confirmed by the Collector in appeal, by order dated 16.03.2005 which, in turn, has been upheld by the Secretary (Appeals) in revision, by his order dated 27.04.2012, leading to the filing of the petition.
5. Mr.J.K.Parmar, learned advocate for the petitioner, has submitted that the forefathers of the petitioner and respondent No.5 have been residing on the land in question since 1906. Thereafter, by order dated 04.06.1813, the land was granted on lease for 50 years and the land revenue was fixed for a period of 50 years from 1906. The lease was extended from time to time. The last lease of the land was by order dated 09.01.1926 for a period of 50 years, for residential purposes. It is submitted that the petitioner and respondent No.5 have not inducted any tenants on the land, nor is any rent being taken from any person. It is submitted that another brother of the petitioner, Mafatlal Chunilal, has sold part of the land by a registered Sale Deed, dated 05.04.1929, for a consideration of Rs.26,000/-. The petitioner was residing at Dahod and respondent No.5 was residing at Umreth. It is contended that Mafatlal Chunilal was looking after the land and has inducted tenants thereupon. The petitioners have complained to the police authorities regarding the trespassers, and to the Gujarat Electricity Board as well, for providing electricity connections to the trespassers. It is contended that the petitioners and respondent No.5 have not inducted those persons as tenants and no rent is being taken from them. That, these persons are antisocial elements who have forcibly entered upon the land and, as such, no breach of any condition of the lease has been committed by the petitioner and respondent No.5; therefore, the order of forfeiture of the land passed by the Deputy Collector, as also the orders of the Collector and Secretary (Appeals), are unjust and arbitrary and deserve to be quashed and set aside.
6. The petition is opposed by Ms. Nisha M. Thakore, learned Assistant Government Pleader, by submitting that there are concurrent findings of fact rendered by three revenue authorities against the petitioner, that are based upon the Panchnama and statements of the persons who are living on the land in question. The record clearly shows that instead of using the land for residential purposes, the petitioner and respondent No.5 have sublet it to various persons who have constructed huts thereupon and are living there for the past 40 to 50 years. Not only that, the petitioner and respondent No.5 are extracting rent from them and copies of the rent receipts have been produced before the Deputy Collector by these persons. It is further submitted that there is a clear breach of condition on the part of the petitioner, as the land was leased for the residential purposes and not for induction of sub-tenants. The petitioner and respondent No.5 do not reside on the land, which is in the possession and occupation of sub-tenants. It is submitted that considering the facts that have come on record, there is no infirmity in the orders passed by the Deputy Collector, Collector and Secretary (Appeals). Having made a breach of the conditions of the lease, the petitioner cannot claim any indefeasible right over the land in question, therefore, the petition may be dismissed.
7. Mr. J.K. Parmar, learned advocate for the petitioner has reiterated his earlier submissions in rejoinder, adding that another brother of his, Mafatlal Chunilal, sold the land and inducted tenants thereupon and the petitioner is not responsible for this. Neither is he taking rent from the persons occupying the land. In fact, the petitioner has complained to various authorities about the trespassers.
8. No other contention has been raised on behalf of the petitioner.
9. I have heard learned counsel for the respective parties, perused the contents of the impugned orders and the other material on record. It does appear from the record that the forefathers of the petitioner were granted the land in question for a specific period of time, and the land has been in their possession for the past several years. It is stated in the impugned order of the Secretary that land bearing Revenue Survey No.1482/B, City Survey No.1440, admeasuring 1602.86.12 sq. meters was granted on lease by order dated 28-02-1957 passed by the Collector, Kheda, from 09-10-1906 upto 31-07-1959 to Someshwar Jivraj and Chunilal Manilal. On the death of Someshwar Jivraj, the revenue record shows that the name of the administrator, one Someshwar, has been mutated. The land bearing Revenue Survey No.1482/C, City Survey No.1439/B, admeasuring 505.85.86 sq. meters was granted on lease vide order dated 09-02-1926 of the Collector, Kheda, w.e.f. 01-08-1923 to 31-03-1973 to Chunilal Manilal. The lease for the land bearing City Survey No.7439/B came to an end on 31-07-1959. Thereafter, the lease has not been renewed or extended and nor is there any material on record to indicate that any application has been made for this purpose at that point of time. On the contrary, it has been found upon spot inspection, that several other persons are residing in huts constructed on the land, for the last 40 to 50 years. Lalchand Chunilal (deceased respondent No.5), brother of the petitioner, made an application for renewal of the lease only on 18-07-1998. On verification, it was found that there are sub-tenants on the land who are paying rent to the petitioner and respondent No.5, which fact has emerged from the statements of the tenants recorded by the Deputy Collector. The panchnama further reveals that at least 26 persons are residing in their huts on the land in question, for the past 40-50 years and are paying rent to the petitioner and respondent No.5. They have produced copies of the rent receipts for Rs.20/- to 25/- per month, before the Deputy Collector, who has recorded in detail the names of the occupiers of the land in his order. Further, it has come on record that the petitioner resides in Dahod and respondent No.5 resides in Umreth. The land is in the possession and occupation of third parties who have been inducted as sub-tenants by the petitioner and respondent No.5
10. The land in question has been leased to the petitioner for their own residential purposes and, as such, the petitioner could not have sublet or sold it. Learned advocate for the petitioner has submitted that another brother of the petitioner, Mafatlal Chunilal, has sold the land in question by a Registered Sale Deed dated 05-04-1979, for a consideration of Rs.26,000/-. This is also averred in paragraph 6 of the memorandum of the petition. In paragraph 7, the petitioner has stated that Mafatlal Chunilal, though not the owner of the land, has given the land on rent to antisocial persons. The attempt of the petitioner, by making statements such as these, appears to be to shift the onus on the other brother, Mafatlal Chunilal, and to show that the petitioner and respondent No.5 have not made any breach of the conditions of the lease. However, the averments made in the petition and submissions made at the Bar to this effect, in my considered view, have the opposite effect. They clearly show that the petitioner admits that sub-tenants have been inducted on the land in question. To make matters worse, the petitioner has stated that his brother Mafatlal Chunilal has sold the land (or a part of it). The question then arises what right any member of petitioner’s family had to sell the land which was granted on lease for a specific period of time. Neither the petitioner, respondent No.5, nor any of his family members, had any legal right either to sell the land, or any portion of it, or to induct sub-tenants and extract rent from them. In any case, the lease for the land bearing City Survey No.7439/B expired on 31-07-1959 and that for land bearing City Survey No.1482/C expired on 31-03- 1973. The lease has not been renewed thereafter, meaning thereby, that on expiry of the lease the leasehold rights of the petitioner and respondent No.5 are extinguished and the land automatically reverts back to the State Government. The application for extension of the lease was given on 18-07-1998, leading to the verification and spot inspection of the land and coming to light of the fact that the land is now occupied by several third parties who are residing there for the last 40-50 years as sub-tenants.
11. In the above circumstances, no fault can be found with the impugned orders of the Deputy Collector, Collector and Secretary (Appeals), that have been passed after an exhaustive scrutiny of the material on record. The petitioner has been unsuccessful in dislodging the concurrent findings of fact rendered by the revenue authorities against him, in spite of having been afforded adequate opportunities of hearing at all stages. No material to the contrary has been produced by the petitioner. Rather, the factual findings of the revenue authorities gain credence from the averments made in the petition, as discussed hereinabove.
12. For the aforestated reasons and as, on the facts and in the circumstances of the case, no legal, fundamental or indefeasible right of the petitioner has been violated, the petition deserves to be rejected. It is, accordingly rejected.
13. Rule is discharged. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) ARG