IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 15458 of 2011 For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA ========================================================= 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 ?
4 Whether this case involves a substantial 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 ?
========================================================= RAMIBEN GOKALBHAI & 2 - Petitioner(s) Versus STATE OF GUJARAT THRO SPECIAL SECRETARY , & 2 -
Respondent(s) ========================================================= Appearance :
MR AMAR D MITHANI for Petitioner(s) : 1, 1.2.1, 1.2.2,1.2.3 MS NISHA THAKORE AGP for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 1 - 3.
NOTICE SERVED BY DS for Respondent(s) : 2 - 3.
========================================================= CORAM : HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 21/09/2012 CAV JUDGMENT
1. Heard Mr.K.M. Patel, learned Senior counsel appearing for Mr.Amar D. Mithani for the petitioners and Ms.Nisha Thakore, learned A.G.P. for the respondents.
2. Rule. As the pleadings are completed, with consent of the learned counsel appearing for the parties, the matter is taken up for final disposal forthwith.
3. By way of this petition under Article 226 of the Constitution of India, the petitioners have prayed for the following reliefs:-
“(A) Be pleased to admit and allow the present petition;
(B) Be pleased to issue a writ of mandamus or any other writ, order or direction to quash and set aside the impugned order dated 16/20.8.2011 passed by the respondent No.1 in Revision Application No.52/2001 (Annexure-G) and the order dated 31.7.2001, passed by the respondent No.2 (Annexure-C) and be pleased to direct the respondent-Authorities to extend the lease, of land bearing Survey No.306, ad-measuring 4 Acres 22 Gunthas of Village: Bhindora, Tal.Manavadar, District: Junagadh;
(C) Be pleased to issue a writ of mandamus or any other writ, order or direction to the respondent-Authorities to consider the petitioner's application for extension of lease, without being influenced by the impugned orders produced at Annexures-C and G, after providing the fair and just opportunity of hearing and in compliance with the principles of natural justice;
(D) Pending admission, hearing and final disposal of the petition, be pleased to stay the implementation, operation and execution of impugned orders dated 16/20.8.2011 passed by the respondent No.1 in Revision Application No.52/2001 (Annexure-G) and the order dated 31.7.2001, passed by the respondent No.2 (Annexure-C);
(E) Pending admission, hearing and final disposal of this petition, be pleased to restrain the respondents, their agents and servants from dispossessing the petitioner from land bearing survey No.306, ad-measuring 4 Acres 23 Gunthas of Village: Bhindora, Tal. Manavadar, District: Junagadh (Subject matter land);
(F) Be pleased to grant other and further relief/s as the nature and circumstances of the case may call for.”
4. This Court (Coram: Smt.Abhilasha Kumari, J.) on 09.01.2012, passed the following order:-
“1. Heard Mr.K.M. Patel, learned Senior Advocate with Mr.Amar D. Mithani, learned advocate for the petitioners. It is submitted by the learned Senior Advocate that the petitioners are in possession of the land on the basis of the lease since the year 1971, and have cultivated fruit bearing trees thereupon. The said land is the main source of livelihood of the petitioners.
2. It is further submitted that respondent No.1 had granted status-quo by order dated 14.08.2001 and had directed the Collector, Junagadh, to have the spot inspection done and a report prepared, in the presence of the petitioners, which order has not been complied with. However, while deciding the Revision Application and passing the impugned order, respondent No.1 has relied upon some reports and panchnamas prepared earlier, during the preparation of which the petitioners were not present.
3. Issue Notice, returnable on 30.01.2012.
4. By way of ad-interim relief, it is directed that status-quo, as it exits today, qua the land in question shall be maintained till then.
5. In addition to the normal mode of service, Direct Service is also permitted.”
5. In response to the notice issued by this Court, the respondent-authorities have filed reply and the petitioners have also filed affidavit-in-rejoinder.
6. The facts which can be culled out from the record of this petition are as under.
6.1. The petitioners are the heirs of deceased- Shri Gokalbhai Samabhai Koli and are residing at village: Bhindora.
6.2. It is a matter of record that late Shri Gokalbhai Samabhai Koli participated in a public auction for the land bearing Survey No.306 situated at village: Bhindora, Taluka: Manavadar, District: Junagadh which ultimately culminated into order dated 29.04.1971 whereby, the District Collector, Junagadh allotted the land in question admeasuring 4 acres and 22 gunthas for the purpose of 'cultivate the fruit bearing trees'. It is also a matter of record that the aforesaid lease was granted for the said purpose initially for 20 years and thereafter, the same came to be renewed for a further period of 10 years by order dated 24.01.1991 passed by the District Collector, Junagadh. It appears that thereafter, as the lease period was to expire, an application has been moved before the District Collector, Junagadh on 15.02.2000 for extension of lease.
6.3. It transpires from the record that by show cause notice dated 20.01.2001, the District Collector, Junagadh asked the predecessor of the petitioners to show cause why the lease should not be terminated. In lieu of the said show cause notice, the District Collector, Junagadh passed order of terminating the lease and forfeiting the land in question to the Government without any encumbrances on 31.07.2001. It transpires from the record that the said order dated 31.07.2001 was challenged by the petitioners by filing revision application under Section 211 of the Bombay Land Revenue Code, 1879 before the Secretary, Revenue Department (Appeals), Ahmedabad. The Secretary (Appeals) granted order of status-quo and directed that inspection of land be carried out after giving notice in presence of the present petitioners. It has been brought on record by way of amendment in the present petition to show that the inspection of the said land was carried out and rojkam was prepared on 23.06.2000 by the Circle Officer and Talati-cum-Mantri. It has also been brought on record that the Mamlatdar, Manavadar made a report on 19.12.2000.
6.4. It is contended by Mr.K.M. Patel, learned Senior counsel for the petitioners that as per the said rojkam dated 23.06.2000, 183 trees were found on the land in question. It is a matter of record that ultimately, the revision application came to be rejected by the Secretary (Appeals) vide order dated 16/20.08.2011 against which, the present petition is filed wherein, the order of status-quo is granted which is prevailing till date.
7. Mr.K.M. Patel, learned Senior counsel appearing with Mr.Mithani for the petitioners contended before this Court that both the orders are passed without considering the material on record. It is contended that as such the said order, more particularly, order dated 24.01.1991 wherein, the lease was extended, does not provide for any specific contention that the number of fruit bearing trees are required to be grown by the allottee. Mr.Patel, learned Senior counsel contended that certain material in the form of report of Circle Officer, Mamlatdar-cum-Mantri and the Deputy Collector, Junagadh, which is relied upon by the Collector, Junagadh, is not even supplied to the petitioners which clearly amounts to breach of principles of natural justice. Mr.Patel, learned Senior counsel, relying upon the ground raised in the petition, specifically pointed out that over and above the fact that there is denial of principles of natural justice, the relevant material has not been considered by both the authorities below. Mr.Patel, learned Senior counsel submitted that in spite of the interim direction, even while granting order of status-quo at the time of admission of the revision application, while deciding it finally after about 10 years, such direction is given go by and only on the ground that it is the discretion of the State Government, the revision application has been dismissed. Mr.Patel, learned Senior counsel has drawn attention of this Court that, in fact, the detailed written arguments were submitted before the Secretary (Appeals) which were not at all considered. Mr.Patel, learned Senior counsel relying upon the photographs, which are attached at Annexures, pointed out that the petitioners have developed the land which is quite evident from the said photographs. Mr.Patel, learned Senior counsel placed reliance upon order dated 23.03.2011 passed by this Court (Coram: M.R. Shah, J.) in Special Civil Application No.3410 of 2011 and order dated 24.09.2010 passed by this Court (Coram:K.S. Jhaveri, J.) in Special Civil Application No.9971 of 2010. Mr.Patel, learned Senior counsel, relying upon order dated 30.11.2011 passed by the Division Bench of this Court (Coram: A.L. Dave & C.L. Soni, JJ.) in Letters Patent Appeal No.2663 of 2010, submitted that the petition deserves to be accepted and the impugned orders are required to be quashed and set aside and the similar directions, which are issued by the Division Bench of this Court in the said order dated 30.11.2011, also deserve to be issued in the present petition.
8. Mr.Patel, learned Senior counsel also invited attention of this Court to the affidavit-in- rejoinder filed by the petitioners to indicate that there are sufficient number of fruit bearing trees upon the land in question today.
9. Per contra, Ms.Nisha Thakore, learned A.G.P. has supported the impugned orders and submitted that the petition is meritless and the same deserves to be dismissed.
10. Before reverting to the various contentions raised by Mr.Patel, learned Senior counsel for the petitioners, upon reading of impugned order dated 31.07.2001 passed by the District Collector, Junagadh, it transpires that the District Collector has relied upon panchrojkam dated 23.06.2000 as well as the report of the Mamlatdar and the Deputy Collector, Junagadh, Ms.Thakore, learned A.G.P. has not been able to controvert the submission that the copies thereof were not given before the order was passed by the Collector, Junagadh and, therefore, the order is based on material which is not made available to the petitioners.
11. In view of the above, judgment and order dated 31.07.2001 amounts to breach of principles of natural justice.
12. Apart from the reasons which are assigned by the Collector as well as the Secretary (Appeals), it is recorded that there are about 200 fruit bearing trees and that there was scarcity of rains in the years 1971-72, 1973-74, 1985-86, 1986-87-88, 1995-96, 1991-92 and 2001-01, which was also contended before the Collector, Junagadh, however, no finding is given on the said aspect and no discussion is found in the order passed by the District Collector, Junagadh as well. On the contrary, the District Collector, Junagadh has noted that while referring to panchrojkam dated 23.06.2000 prepared by the
water, many half dried trees were found. It is found in the order passed by the Secretary (Appeals) that these vital facts are not even considered and, on the ground whether to extend the period of lease is the discretion of the State Government, has rejected the said revision application.
13. At this stage, it would be advantageous to refer to order dated 30.11.2011 passed by the Division Bench of this Court in Letters Patent Appeal No.2663 of 2010 wherein, the Division Bench of this Court, while dealing with an almost identical case, has observed thus:-
“5. Aggrieved by the said order of learned Single Judge, present appeal is preferred. On earlier occasion, when the matter came up for hearing before earlier Division Bench, a copy of Panchnama drawn on 27.07.2010 was produced on record (typed copy indicates 07.07.2010 as the date). This Court, on 04.08.2011, directed the appellant to file additional affidavit giving details of number of trees implanted, types of fruit bearing trees, number of each type of fruit bearing trees and approximate age of trees. They were also directed to enclose photographs of fruit bearing trees with their affidavit. Accordingly, today, the appellant has filed an additional affidavit along with a copy of Panchnama dated 16.08.2011 and eight photographs showing the status of the land and standing trees, which are taken on record. We find that there are large number of fruit bearing trees; viz., 122-Mango trees, 95-Chikoo trees and several other trees in form of 310-Coconut trees, Blue Berry trees, Neem trees, Lemon trees, Banyan trees, etc. The photographs confirmed the statement made in the Panchnama dated 27.07.2010 and 16.08.2011. We also notice that as per the Panchnama, the life of trees are from five years to twenty years. It is, therefore, factually incorrect finding that there was breach of condition of planting fruit bearing trees. This was the result probably of the fact that the land records indicated cultivation of Bajara and Groundnut and was silent about the presence of trees. In this context, the condition of grant of land on lease, if seen, would indicate that as per Clause 7, it was permissible to have cultivation of crop between the trees (inter- cultivation). Clause 13 indicates that the lease can be renewed after 30 years at the discretion of the Collector, which can be renewed for the period of 30 years at the discretion of the Collector. Having noticed these facts, we find that respondent No.2 was in error in concluding that there was breach of condition of lease. As a consequence, the order passed by Revenue Secretary (Appeals) confirming the said order, and order of learned Single Judge again not interfering with the said order, were in error. We, therefore, set aside all the three orders and direct respondent No.2 to re-examine the case of the appellants in light of the fact that there are number of trees grown and there is no breach of condition of lease by the lessee.”
14. Even in the instant case, on perusal of the photographs at page Nos.86 and 121 to 128 as well additional affidavit dated 24.12.2011 filed by the petitioners, it appears that the petitioners have developed the land and trees are standing and, therefore, it appears that the land is being used for the purpose of growing fruit bearing trees.
15. It is an admitted position that the land was granted to the husband of petitioner No.1 and father of petitioner Nos.2 and 3 in the year 1971 and the present petitioners claim the same as the legal heirs and, while considering the application for renewal filed by the present petitioners, the District Collector, Junagadh considered breach of condition and passed the impugned order which has been confirmed by the Secretary (Appeals).
16. Considering the ratio laid down by the Division Bench of this Court in order dated 30.11.2011 passed in Letters Patent Appeal No.2663 of 2010, it would be appropriate for the authorities below to reexamine the matter and take appropriate decision for extension of lease. As recorded above, while passing the impugned order, the District Collector, Junagadh has relied upon the report submitted by the Revenue Officer which is not even supplied to the petitioners.
17. It is further noteworthy that while admitting the revision application vide order dated 14.08.2001, after taking into consideration the rojkam relied upon by the District Collector, Junagadh, the Secretary (Appeals) had issued a direction to re-inspect the land in question in presence of the petitioners-applicants therein and to prepare a report. However, while considering the revision application at the final hearing stage, there is no even whisper about it.
18. In view of the above, the petition is accepted. Impugned orders dated 16/20.08.2011 and 31.07.2001 are hereby quashed and set aside and the matter is remanded to respondent No.2- District Collector, Junagadh for fresh decision.
19. It is further made clear that while hearing the petitioners, it is open for the District Collector, Junagadh to verify the same and take appropriate decision as per the prevailing policy of the State Government, as regards grant of similar lease for similar purpose i.e. for growing 'Fruit Bearing Trees' after affording an opportunity of being heard to the petitioners.
20. As the petitioners are in a possession of the land in question, because of the interim orders passed by the Secretary, Revenue Department (Appeals) as well as by this Court, at the time of the show cause notice, the petitioners are also directed to file an undertaking before this Court within a period of seven days from today to the effect that they shall not change the status of land including the possession and use thereof till the matter is re-heard by the District Collector, Junagadh as per the present order. It would also be open for the petitioners to submit any further documents before the District Collector, Junagadh.
21. In view of the above, though the petitioners are in possession of the land in question, the District Collector, Junagadh shall give top most priority to the same and take appropriate decision as expeditiously as possible on its own merits.
22. With the above observations and clarifications, the petition is allowed. Rule is made absolute accordingly. No order as to costs.
Hitesh (R.M.CHHAYA, J.)