IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7127 of 2012 For Approval and Signature:
HONOURABLE MR.JUSTICE R.M.CHHAYA =========================================================
========================================================= RAMJIBHAI NARANBHAI RATHOD Petitioner(s) Versus STATE OF GUJARAT & 2 Respondent(s) ========================================================= Appearance :
MR VIJAY H NANGESH for Petitioner(s) : 1, MR RONAK B RAVAL, AGP for Respondent(s) : 1 3, ========================================================= CORAM : HONOURABLE MR.JUSTICE R.M.CHHAYA Date : 21/09/2012 CAV JUDGMENT
1. Heard Mr. Vijay H. Nangesh, learned advocate for the petitioner and Mr. Ronak B. Raval, learned AGP for the respondents.
2. By way of this petition under Article 226 of the Constitution of India, the petitioner has prayed for the following reliefs: “(A) YOUR LORDSHIPS be pleased to allowed and admit this petition.
(B) YOUR LORDSHIPS be pleased to quash and set aside the impugn order dated 24.01.2012 passed by the Additional Secretary, Revenue Department (Dispute) in Revision Application bearing no.MVV/JMN/JNR/48/2005 and order passed by Collector Jamnagar in JMN2Vilamb68/0405 on Dated27092005 and order passed by Deputy Collector, Khambhalia on 04051985 and further be pleased to direct the Respondents to consider and act as per clause 4(1) of Government Resolution, Revenue Department dated 16031982.
(C) Pending hearing and final disposal of this petition. YOUR LORDSHIP may be pleased to issue a writ of Mandamus or any other appropriate writ in the nature of mandamus directing the Respondent Authorities to consider and act as per clause 4(1) of Government Resolution, Revenue Department dated 16031982.
(D) YOUR LORDSHIP be pleased to pending admission and final hearing and disposal of this the application, be pleased to stay the operation, implementation and execution of order dated 24.01.2012 passed by the Additional Secretary, Revenue Department (Dispute) in Revision Application bearing no.MVV/JMN/JNR/48/ 2005 on 24012012, and order passed by Collector Jamnagar in JMN2Vilamb68/0405 0n Dated2709 2005 and also order dated 18.02.1985 passed by the Respondent no.3 in Breach of Condition case no.141/8485 and be pleased to direct the respondents not to evict petitioner from the above land in the interest of justice.
(E) YOUR LORDSHIPS be pleased to grant such other and further relief(s) as deemed fit in the interest of justice.”
3. The facts which can be culled out from the record of the petition are as under:
3.1 The petitioner was allotted land bearing revenue survey No.671 admeasuring 2 acres and 21 gunthas and revenue survey No.672 admeasuring 4 acres and 37 gunthas situated at Village Dwarka, District Jamnagar to cultivate the land personally on restricted tenure by the Deputy Collector, Khambhaliya vide order dated 3.5.1971. It appears that the fact of such allotment made in favour of the petitioner came to be mutated in the revenue records by way of entry No.942 dated 2.11.1971 which came to be certified on 5.6.1972.
3.2 It transpires from the record that the petitioner was working in the post office at Dwarka and did not cultivate the land in question personally and as the land was found to be vacant and unused, Case No.141/8485 was initiated against the petitioner for breach of condition and the competent authority i.e. the Deputy Collector, Khambhaliya vide order dated 18.2.1985 came to the conclusion that there is a breach of condition under Section 79A of the Bombay Land Revenue Code and ordered to vacate the land and forfeited the same in favour of the Government. The fact that such an order is passed describing the breach of condition and gist of the order and the fact that the land in question was forfeited in favour of the Government, came to be mutated in the revenue record by entry No.1268 dated 16.5.1985 and the said entry came to be certified on 24.8.1985.
3.3 It appears that after 20 years i.e. on 10.6.2005, the petitioner through his advocate applied for copy of the aforesaid order dated 18.2.1985. However, as the said proceedings as per the Rules of business fall in ClassC, the Deputy Collector, Khambhaliya informed the petitioner that the papers of the proceedings have been destroyed.
3.4 The petitioner thereafter filed an appeal before the Collector, Jamnagar along with an application for condonation of delay which came to be registered as Appeal No.JMN/2Vilamb68/0405. The said application for condonation of delay came to be dismissed and resultantly, the appeal also came to be dismissed vide order dated 27.9.2005. The petitioner contended in the said application that the petitioner is working in postal department and has 5 years to retire and that he is not aware about any such order of 1985 and he came to know about the same when he obtained the copy of village form No.7/12. It was also contended that the petitioner is tilling the land in question and it has not been fallow (Padtar). The Collector, Jamnagar considered the submissions made by the petitioners and rejected the said application vide order dated 27.9.2005.
3.5 Being aggrieved by the aforesaid order dated 27.9.2005, the petitioner preferred a Revision Application being Revision Application No. MVV/JMN/JNR/48/2005. It appears from the order passed in the aforesaid Revision Application dated 24.1.2012/1.2.2012 that such a revision came to be filed by the petitioner on 27.12.2005. The same was admitted, however, an application for interim injunction was rejected and no stay was granted and after fullfledged hearing, the same came to be dismissed vide order impugned dated 24.1.2012/ 1.2.2012. Being aggrieved by the aforesaid orders, the present petition is filed.
4. At the request of the Court, Mr. Ronak B. Raval, learned AGP was directed to take instructions in the matter and file an affidavit. Accordingly, an affidavit is filed by the respondents. No affidavit in rejoinder is filed by the present petitioner.
5. Mr. Vijay H. Nangesh, learned advocate for the petitioner vehemently submitted that the petitioner has not been heard while passing the order dated 18.2.1985 and contended that the said order is in total breach of the principles of natural justice. Learned advocate for the petitioner reiterated what has been stated before the District Collector by the petitioner. It was submitted that the view taken by the respondent authorities is very technical and unsympathetic. It was also contended that the Talati cumMantri has not prepared Panchnama of the place and proper inquiry has not been held by the Deputy Collector while passing the order of forfeiture dated 18.2.1985. The learned advocate for the petitioner relying upon the Government Resolution dated 16.3.1982 canvassed that it being first mistake of the petitioner, who belongs to backward class, the land should have been regranted to the applicant on payment of Rs.1 as possession charges. It was, therefore, submitted that the petition requires to be entertained as the orders impugned are illegal, exfacie, unjust, against the principles of settled legal position and evidence on record. No other or further submissions are made by the learned advocate for the petitioner.
6. Per contra, Mr. Ronak B. Raval, learned AGP for the respondents has reiterated the averments made in the affidavit in reply. The learned AGP pressing the factual background of the matter pointed out that the petitioner was granted land vide order dated 3.5.1971 as Sathani land for personal cultivation. The learned AGP pointed out that as the petitioner was working in the Post and Telegraph Department, he has never cultivated the land in question and after following due process of law, the Deputy Collector, Khambhaliya has passed the order on 18.2.1985, whereby the lands have been forfeited in favour of the Government. The learned AGP further submitted that the petitioner approached the District Collector after delay of 20 years. It is, therefore, submitted that the orders impugned are legal and proper and the petitioner has filed this petition only with an intention to take benefit of rise in price after almost 27 years. The learned AGP has relied upon the Panch Rojkam made during pendency of this petition on 14.6.2012 at AnnexureRII to the affidavit. It indicates that the Panch Rojkam was prepared in presence of the petitioner and two Panchas. The said Rojkam also clearly indicates that survey No.671 is fallow land and it has not been tilled. It is also mentioned that survey No.672 is tilled recently. It is clearly mentioned that both the parcels of land stand in the name of the Government.
7. The learned advocates appearing for the respective parties have produced the photographs on record. One set of photographs produced by the learned advocate for the petitioner dated 11.6.2012 which fortifies what is stated in the Panch Rojkam dated 14.6.2012. The same are taken on record of this petition. Similarly, the other set of photographs produced by the learned AGP which are purported to have been taken on 2.7.2012 and the same pertains to the land in question i.e. survey No.672. The said photographs indicate that nothing is cultivated and part of the land is only recently tilled.
8. Considering the submissions made by the learned advocates appearing for the respective parties and on perusal of the record of the petition, it is an admitted position that the petitioner was working in the Post Office department as a Postman. It is also an admitted position that entry No.1268 exhibiting the order dated 18.2.1985 forfeiting the land in favour of the Government was mutated as back as on 16.5.1985 and the said entry came to be certified on 24.8.1985 and it is also an admitted position that the petitioner approached the authority even without a copy of the order and filed the appeal before the Collector after 20 years. The affidavit in reply filed by the Mamlatdar, Okhamandal, Dwarka indicates that the aforesaid order dated 18.2.1985 was passed after affording an opportunity of being heard to the petitioner and the contentions raised by the petitioner that there is breach of principles of natural justice is denied. The Panch Rojkam dated 14.6.2012, which was made at the oral direction issued by this Court, clearly indicates that the land has remained unutilized and even in case of land bearing survey No.671, an attempt is made by the petitioner to cultivate the land after such direction was issued.
9. From the record of the petition, it clearly transpires that the land is forfeited in favour of the Government way back in the year 1985 and the entry was mutated on 16.5.1985 and certified on 24.8.1985, the petitioner approached the Collector after 20 years. The petitioner was granted land in the year 1971 on the basis of the benevolent scheme of the Government and after 15 years as it was found that it was lying fallow, as admittedly, the petitioner was working in Post and Telegraph Department, the order was passed in 1985 and entry came to be mutated. It is an admitted position that for 20 years, the petitioner did not do anything with regard to the land in question and on the sole ground that the petitioner was not heard by the Deputy Collector, Khambhaliya, while passing the impugned order dated 18.2.1985, the petitioner has attempted to raise the dispute on the basis of the alleged breach of principles of natural justice. The findings arrived at by both the authorities namely the Collector and the Additional Secretary, Revenue Department (Appeals) are based on appreciation of evidence on record and this Court finds no error in the same, which warrants interference by this Court in its jurisdiction under Article 226 and/or 227 of the Constitution of India.
10. It is not the case of the petitioner that he has been tilling the land continuously from 1971 onwards. On the contrary, the Court thought it fit to direct the authorities to inspect the site and then make a report. Such a report dated 14.6.2012 indicates that the land is lying fallow, though an attempt has been made by the petitioner to show that it is being cultivated personally by the petitioner, as an afterthought. The predominant ground raised by the petitioner that the petitioner has not been heard by the Deputy Collector before passing the order dated 18.2.1985 is also denied by the respondents. Even if the matter is viewed from the angle of delay, the petitioner has tried to raise a contention of not being heard after 20 years. However, considering the factual position and ground reality to the effect that the petitioner has not tilled the land and the orders of forfeiture having become final and executed by the State Government in 1985 in the revenue record which is a public document, the petitioner challenged the same after a long lapse of 20 years.
11. The contention raised by the learned advocate for the petitioner to the effect that he should be given benefit of resolution dated 16.3.1982 as the petitioner belongs to backward class and his first mistake should be condoned and the order of forfeiture should be cancelled and the land should be regranted by charging Rs.1/ does not take the case of the petitioner any further as even if it is presumed that it is his first mistake, the initial allotment is of 1971 and no benefit should be given of such a policy decision made in the year 1982 after a lapse of 27 years.
12. In view of the above, the petition deserves to be dismissed and is hereby dismissed in limine. Parties to bear their own costs.
mrpandya [R.M.CHHAYA, J.]