(Per : HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The present application is for vacating of the interim order passed by this Court on 14.2.2008 in the Letters Patent Appeal.
2. We have heard Mr.H.K.Patel, learned AGP for the State, Mr.Sanjanwala, learned Senior Advocate with Mr.Thakkar for respondent No.1 and also Mr.B.S.Patel, learned counsel for the members of the society who have preferred Civil Application No.9658 of 2012.
CA/3526/2012 2/4 ORDER
3. Considering the facts and circumstances of the case, it appears that interim relief came to be granted as back as on 14.2.2008. Therefore, it would be just and proper if the Letters Patent Appeal is finally heard at the earliest. Further, if interim relief is vacated, it may create irreversible situation inasmuch as the Government may be in a position to resume the land and the Letters Patent Appeal may be frustrated.
4. Mr.Patel, learned AGP contended that if the land is being used for the purpose of fishing activity for developing zinga as against the original purpose of agricultural cultivation for which the land was allotted, there is breach of the condition and consequently, the Collector was justifying in resuming the land back and the learned Single Judge rightly confirmed the said action and, therefore, ad-interim relief granted in the present Letters Patent Appeal deserves to be vacated or modified. He, alternatively, submitted that an impression was given to the Division Bench on 14.2.2008 that the land is used for cultivation, whereas factually the land is used for fishing activity for developing zinga and, therefore, he submitted that it would be a case for vacating of the interim order.
5. It is true that originally the land was allotted for agricultural cultivation, but as submitted by learned advocate appearing for the original appellant and Mr.B.S.Patel for the members of the society, the land was allotted in anticipation of CA/3526/2012 3/4 ORDER the fact that water would be available for agricultural cultivation by the canal of Kakrapar Dam, but thereafter, water was not available as it was located near sea bed and some of the members decided to use the land for fishing activity of developing zinga so that the members may earn livelihood. He has also drawn our attention to the fact that the bye-laws of the society were amended whereby such activity was permitted.
6. When the land is allotted for agricultural cultivation and if on account of nonavailability of water, the land is used for fishing activity for developing zinga, whether it would be said to be breach warranting resumption of land or not or whether such breach could be condoned by recovering fine or other revenue or not are the aspects which may be required to be finalized in the Letters Patent Appeal. It also appears that when the land is located on the sea bed, because of salinity in the land and if no water is available for agricultural cultivation, we find that it would not be a case for vacation of interim order as sought to be canvassed. However, condition can be provided to the effect that the appellant or its members shall not transfer or alienate or hand over possession of the land in question, in any manner, to anyone else.
7. Hence, the interim order is not vacated, but further direction is issued that the land shall not be transferred or alienated by the appellant society or any of its members, in any manner whatsoever without CA/3526/2012 4/4 ORDER prior express permission of the District Collector or of this Court. The land in question shall also not be used for any other purpose of construction whatsoever nor any equity shall be created by the appellant society or its members in any manner whatsoever over the land in question.
7. Letters Patent Appeal shall be listed for final hearing in the week beginning from 3.12.2012.
(Jayant Patel,J) (Mohinder Pal,J) pathan