1. These petitions raise common issues and the contentions raised in these petitions being identical and even the contentions raised on behalf of the respondents being identical, these petitions are disposed of by this common judgment and order.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner of Special Civil Application No.4944 of 2012 has challenged the order dated 14.3.2008 passed by the District Collector, Junagadh as well as the order passed by the Additional Secretary, Revenue Department (Appeals) dated 6/8.2.2012.
3. It is the case of the petitioner of Special Civil Application No.4944 of 2012 that the father of the petitioner – Amarabhai Mulubhai Dhadhal was granted land bearing survey No.70 paiki admeasuring 3 acres at Village Malanka, Taluka Mandarda, District Junagadh for the purpose of growing fruit bearing trees for a period of 30 years vide order dated 15.4.1968 on certain conditions. It appears from the record that the original allottee – Amarabhai expired on 31.3.1997. The present petitioner in his capacity as heir of the original allottee – Amarabhai on completion of the period of 30 years, filed an application on 14.10.2004 for renewal as the land can be granted to the legal heirs and representatives of originally grantee. It appears that the said application was processed firstly by TalaticumMantri and certain Panchnamas were also submitted by Sarpanch of Malanka Gram Panchayat. It further appears that by communication dated 17.3.2005, an opinion was expressed by the authorities to the Collector, Junagadh. The said application was scrutinized by the Collector, Junagadh and as certain breach of conditions were noticed, the District Collector while dealing with the application dated 14.10.2004 has issued show cause notice dated 30.5.2005 asking the petitioner to show cause as to why the land in question should not be taken back in exercise of powers under Section 79[A] of the Bombay Land Revenue Code. The said show cause notice, after giving an opportunity of being heard, on a request made by the petitioner, culminated into the impugned order dated 14.3.2008. The said order came to be challenged by way of filing a revision as provided under Section 211 of the Land Revenue Code. However, the Principal Secretary, Revenue Department (Appeals) rejected the matter and refused to grant any stay. It appears from the record of the petition that the petitioner thereafter preferred writ petition being Special Civil Application No.10931 of 2008 challenging the order of non grant of temporary relief and the said petition came to be allowed vide judgment and order dated 2.9.2008 whereby the order passed by the Collector came to be stayed till final decision of the Revision Application. The said Revision Application, after final hearing, came to be rejected vide impugned order dated 6/8.2.2012, against which the present petition is filed.
4. Similarly, the petitioner of Special Civil Application No.4946 of 2012 has also challenged the order dated 28.6.2007 passed by the Collector, Junagadh, confirmed in revision by the Additional Secretary, Revenue Department (Appeals) vide order dated 10/13.2.2012. It is the case of the petitioner of Special Civil Application No.4946 of 2012 that he is in possession of land bearing survey No.85 paiki, admeasuring 5 acres at Village Pandva, Taluka Veraval, District Junagadh which was allotted by an order dated 8.11.1973 in favour of the present petitioner. It appears from the record that the said land was given for the purpose of growing fruit bearing trees. It further appears from the record of the petition that the petitioner applied for extension of time of lease and while considering the same on the basis of some alleged breach, the show cause notice came to be issued on 12.12.2005 by the District Collector which ultimately culminated into an order dated 28.6.2007. The said order came to be challenged by way of revision and the said revision is dismissed and hence, the present petition is filed.
5. In Special Civil Application No.4947 of 2012, the petitioner has interalia challenged the order dated 28.6.2007 passed by the District Collector, Junagadh and confirmed in revision by the Additional Secretary, Revenue Department (Appeals) vide order dated 10/13.2.2012. It reveals from the record that the land in question being survey No.85 paiki, admeasuring 5 acres situated at Village Pandva, Taluka Veraval, District Junagadh was given on lease vide order dated 8.11.1973 for the purpose of growing fruit bearing trees. It appears that as the period of 30 years was about to be over, the petitioner applied for extension of lease. The said application was processed and as some alleged breaches were noticed, the notice came to be issued on 12.12.2005 by the District Collector which ultimately culminated into an order dated 28.6.2007. The said order came to be challenged by way of revision and the said revision is dismissed and hence, the present petition is filed.
6. This Court (Coram: Smt. Abhilasha Kumari, J.) vide order dated 16.4.2012, while issuing notice, has granted statusquo qua the land in question.
7. In response to the notice issued by this Court, the respondents have appeared and this Court vide order dated 4.9.2912 had passed the following order: “RespondentDistrict Collector, Junagadh is directed to carry out panchnama of the lands in question in the present petitions, through an officer not below the rank of mamlatdar, in presence of the respective petitioner(s) of the present petitions and place on record in each petition along with current photographs exhibiting the use, if any, made by the petitioners.
Mr.Anshin N. Desai, learned advocate for the petitioner(s), assures that the petitioner(s) shall remain present as and when intimated about the same. It would also be open for the petitioner(s) to produce photographs on record. S.O. to 24.09.2012.
Such panchnama(s) along with affidavit(s) and photograph(s) shall be placed on record by the next date.
Registry to place a copy of this order in connected matters.”
8. In response to the same, the respondents have filed their affidavit in reply in compliance with the directions issued vide order dated 4.9.2012. It may be noted that in Special Civil Application No.4944 of 2012, the PanchRojkam so conducted on 19.9.2012 reveals that in all there are 255 trees. In Special Civil Application No.4946 of 2012, the PanchRojkam conducted on 23.9.2012 indicates that in all there are 2030 trees. Similarly, in Special Civil Application No.4947 of 2012, the PanchRojkam conducted on 23.9.2012 indicates that there are about 2034 trees.
9. Heard Mr. Anshin H. Desai, learned advocate for the petitioners and Ms. Nisha M. Thakore, learned AGP for the respondents.
10. Mr. Desai, learned advocate for the petitioners has contended that while considering the application for extension of lease which was granted, the District Collector has taken into consideration the policy of the Government dated 1.1.1987 and 10.6.2003. It is submitted that when the lease was granted to the petitioners in these petitions, no such condition was in existence. It is, therefore, submitted that while considering the application for renewal, the policy which has been framed by the State Government after grant of lease cannot be the basis of considering the application for renewal. Mr. Desai vehemently submitted that at least, it cannot be based on alleged breach of conditions against the petitioners as the petitioners were governed by earlier policy of 196667. Mr. Desai also relied upon the decision of the Division Bench of this Court in the case of Dilharba Wd/o Bahadursinh Mohbatsinh Jehwa Vs. State of Gujarat & Anr., passed in Letters Patent Appeal No.2663 of 2010 dated 30.11.2011 as well as decision of this Court in the case of Govinbhai Rajabhai Barad Vs. State of Gujarat & Anr., passed in Special Civil Application No.18202 of 2011 dated 24.7.2012 and has submitted that the very consideration of the Collector being defective on the basis of the decision of the Division Bench, the impugned orders deserve to be quashed and set aside and the matters deserve to be denovo considered by the District Collector. It is further submitted that even the revisional authority while considering the revision has committed a serious error. It is, therefore, submitted that the petitions may be allowed.
11. Per contra, Ms. Nisha M. Thakore, learned AGP for the respondents has supported the orders. Learned AGP submitted that even though the lease in these cases were granted prior to 1987 and 2003 policy, while considering the application for renewal, the authorities have rightly considered the prevailing policy. The learned AGP, therefore, submitted that the petitions may be dismissed.
12. Considering the submissions made by both the learned advocates appearing for the parties and on perusal of the impugned orders passed by the District Collector in each matter as well as the orders passed by the Additional/Principal Secretary, Revenue Department (Appeals), the picture which emerges is that it is true that in all these cases, the respective allottees were granted lease for 30 years prior to 1.1.1987. It appears from the affidavit in reply filed by the respondent authorities that in fact when the lease was granted, the policy which was enunciated by the State Government vide resolution dated 11.11.1966/6.12.1966 was prevailing. The learned AGP has not been able to point out that there was a condition to grow certain number of trees. The learned AGP no doubt relied upon condition No.7 of the said policy. On bare reading of the said condition, this Court is of the opinion that it is not a condition, but it prescribes an ideal number of trees which can be grown in 1 acre. Such a condition cannot be read as a condition much less breach of condition. In addition to that, while considering the applications for extension preferred by the petitioner, the authorities have considered the policy of 1.1.1987 and 10.6.2003. The learned AGP has further pointed out that in fact even that policy has undergone a change in the year 2004.
13. At this stage, it would be advantageous to refer to the decision of the Division Bench of this Court in the case of Dilharba Wd/o Bahadursinh Mohbatsinh Jehwa (supra), wherein the Division Bench held as under: “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, 95Chikoo trees and several other trees in form of 310Coconut 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 (intercultivation). 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 reexamine 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. While going through the impugned orders, such consideration is not coming forth from the record of these petitions. Moreover, considering the fact that the original allottees were allotted the lands in question prior to 1987, the conditions which are now found in the policy of 1987, 2003 or latest 2004 cannot be sought to be enforced while considering the renewal as the policy under which the petitioners – original allottees were granted lease for 30 years nowhere prescribes that the condition which may be changed thereafter shall ipsofacto apply to the present lease also.
15. In view of the aforesaid, without entering into whether the petitioners are entitled to renewal or not, the impugned orders are hereby quashed and set aside and the matters are remanded back to the District Collector, Junagadh for a fresh decision.
16. It is further made clear that while hearing the petitioners, it is open for the District Collector, Junagadh to verify and take appropriate decision as per the prevailing policy of the State Government, as regards grant of extension of lease for similar purpose i.e. for growing “Fruit Bearing Trees”, after affording an opportunity of being heard to the petitioners.
17. As the petitioners are in possession of the lands in question because of the interim orders passed by the Additional/Principal Secretary, Revenue Department (Appeals) as well as by this Court, at the time of show cause notice, the petitioners are also directed to file an undertaking before this Court, within a period of seven days from the date of receipt of copy of this judgment, that they shall not change the status of land including the possession and use till the matter is reheard by the District Collector, Junagadh as per the present judgment and order. It would be open for the petitioners to submit any further documents before the District Collector, Junagadh.
18. In view of the above, though the petitioners are in possession of the lands in question, the District Collector, Junagadh shall give top most priority to same and take appropriate decision as expeditiously as possible, on its own merits.
19. With these observations, these petitions are allowed to the aforesaid extent with no order as to costs.
[R.M.CHHAYA, J.] mrpandya