Gujarat High Court
Chhaganbhai Arjanbhai Vegada vs State Of Gujarat & 4 on 18 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/16601/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 16601 of 2017
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CHHAGANBHAI ARJANBHAI VEGADA....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR KV SHELAT, ADVOCATE for the Petitioner(s) No. 1
MS NISHA THAKORE, AGP ADVANCE COPY SERVED TO GP/PP for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 18/09/2017
ORAL ORDER
1. By this application under Article 227 of the Constitution of India, the applicant calls in question the legality and validity of the order dated 12/05/2017 passed by the SSRD at Ahmedabad, by which, the SSRD rejected the revision application filed by the applicant herein, thereby, affirming the order of the Collector, Surendranagar dated 19/12/2014.
2. The dispute pertains to a parcel of land bearing survey no.404/60 admeasuring 15 Acres i.e. approximately 63,000 sq.mtrs., situated at the Village Kamalpur of Taluka Dasada, District - Surendranagar. Indisputably, this parcel of land belongs to the State Government. This huge parcel of the land was allotted by the State Government in favour of one Tribhovanbhai Laghrabhai Harijan - the respondent no.5 herein on a 'Santhani' basis. The allotment on 'santhani' basis is always pursuant to the policy of the State Government. If a particular person is found to a landless labourer, then to provide him with some means of Page 1 of 9 HC-NIC Page 1 of 9 Created On Sun Oct 01 23:34:06 IST 2017 C/SCA/16601/2017 ORDER livelihood, the State Government would allot the land of restricted tenure; subject to certain terms and conditions. The person in whose favour such allotment is made would always hold the land not as an absolute owner, but, for the purpose of cultivating and earning livelihood out of the same. The ownership of the land would vest and remain with the State Government. This huge parcel of land came to be transferred by the respondent no.5 herein by way of a registered sale deed in favour of the applicant herein. The authority concerned having found such transfer to be absolutely illegal and contrary to the terms of allotment, initiated the proceedings in that regard.
3. The Deputy Collector, Patdi, in his order dated 25/06/2013 held as under: "The respondent No2 of the present case has submitted that this notice has been served without considering prevailing circulars of the Government. The said land was granted to the respondent No1 under new tenure. Since then, the said land has been registered in revenue record in the name of the respondent No1 and it is under his continuous possession. In connection with the said land, he has complied with all the conditions of the order and no any breach of condition ever occurred. He also tills the said land regularly as well as paying taxes and land revenue in respect with the said land. After handing over the possession of it as Sathani land, it has been under continuous possession for 15 years without any breach of condition. And he is tilling the said land regularly. The Government Revenue Department has made provision to remove restrictions of new tenure vide its resolutions No. NShJ/1081/3152 dated 11/03/1996 and NShJ / 1099 / 3521 / J dated 19/10/2000 to convert the new tenure land having possession of 15 years in old tenure which is granted on new tenure. Apart from this, the Government resolution No. NShJ/1081/1023/Z dated 17/09/1984 and others are in force. Moreover, instead of such land premium policy, the Government has decided the possession tenure of 15 years for converting the land of new tenure of the village area into the old tenure only for agricultural purpose vide its circular NshJ/102006/571/J dated 20/12/2006 and there shall be a zero rate of premium. The old tenure will be applicable automatically after the passage of 15 years. But, there is a provision of premium for the purpose of Nonagriculture. Apart from that, a provision has been made to carry out procedure as per the circular dated 20/12/2000 wherein, there is a clear provision to consider the lands of new tenure which have been under continuous possession for 15 years or more as converted automatically into the lands of old tenure. And the Revenue authority has to carry out all such procedure, wherein the land holder does not have to undertake any Page 2 of 9 HC-NIC Page 2 of 9 Created On Sun Oct 01 23:34:06 IST 2017 C/SCA/16601/2017 ORDER procedure in that regard. Hence, it is not needed to obtain prior approval even from the Government in case of the land of new tenure under continuous possession for 15 years or more. Considering such provision of the Government, the respondent No2 of the present case has purchased this land with absolute right from the respondent No1 by paying consideration money vide registered document No. 14 dated 08/01/2007. And since then, it is under his possessions and occupancy and he cultivates it regularly. He has refined the quality of the said land by spending considerable amount of money. No any entry was made though there is a provision that the entry gets posted automatically in accordance with his deed. Hence, he got it posted vide entry No. 1188 dated 17/11/2008 by producing all the documents in that regard. But, it got rejected as there was dues of the Dena Bank and Cooperative Bank. After the payment of the dues, an application was made to get the said land registered in his name and therefore, entry No. 2066 dated 25/10/10 was made. As no document being land account holder was there, this entry was also rejected. Thereafter, the Mamlatdar, Patdi, converted the said land into old tenure vide his order No. JMN/Vashi/1003/4/10 dated 30/04/2010. On perusing the same vide letter No. JMN/Vashi/1565/2010 dated 07/05/2010, the Deputy Collector, Dhangdhra, directed the Mamlatdar to undertake further procedure to make an endorsement like "subject to premium for non‐agricultural purpose"
therein. In that regard, an Entry No. 2009 dated 17/05/10 was made and it was approved by the Mamlatdar. Thereafter, an application to make an entry was made again on the basis of the deed and in that regard, the entry No. 2106 dated 16/01/2011 was made in the village record, wherein the applicant of the present case raised an objection. But, the Mamlatdar did not allow the said objection and certified this entry by holding that the purchaser owns the agriculture land at the village Zanzri vide account No.415. Thereby, at present, the said land has been maintained in the name of the respondent no2. Endorsement regarding the sale has been granted on 08/03/2011. Therefore, as the said land has been under continuous possession for 15 years, such can be considered according to the Government circular, that the land is converted automatically into old tenure "subject to premium for non‐agricultural purpose". And the entries in that regard have also been approved. As no breach of condition takes place in connection with this land, it is requested to withdraw notice which was issued.
Considering submissions made by the respondent of the present case and details on the basis of produced record, it appears that the respondent No1 was granted the Land bearing Revenue Survey No. 404/60 admeasuring Hector 6. 37.38 situated at Village Kamlpur, TalukaDasada, as Sathani land on new tenure. Though the disputed land is of a new tenure, the respondent No1 of the present case sold it to the respondent No2 on 08/01/07 by registered deed and as a result of that, the entry No.2106 was made in the village record. But, at the time of selling, it was not converted into new tenure. But, the Deputy Collector, Dhangdhra, converted the said land into new tenure for the agriculture purpose vide his order No. JMN/Vashi/1565/2010 dated 07/05/2010. The land in question was of new tenure at the time of its selling and Entry No.2106 was posted in that regard in village register and therefore, this office made proposal to the Collector, Surendranagar, for the revision of the said entry. But, the Collector, Surendranagar, vide his letter No. R.R.T. Revision Case No. 11/13 Page 3 of 9 HC-NIC Page 3 of 9 Created On Sun Oct 01 23:34:06 IST 2017 C/SCA/16601/2017 ORDER 14 dated 30/04/2013 directed this office to first of all undertake the procedure regarding breach of condition as the land in question has been sold though it is of new tenure and to send report of action taken in that regard to his office. After registering the case in this regard, this office issued notice to the respondent of this case and conducted its hearing. Looking to the detail based on the produced record, it appears that the disputed land was of new tenure, when the respondent No1 sold the disputed land to the respondent No2 of the present case by registered document on 08/01/2007. It means that, the land of new tenure has been sold though its title was not clear. Though the disputed land was of new tenure at the time of its sell, despite that, the parties have deliberately sold it without undertaking any procedure to convert it into old tenure. Considering this fact, primafacie, it is proved from the record that the breach of condition has taken place. Looking to the entire facts of the present case, breach of condition and the direction of the Collector, Surendranagar, in this regard, it appears that the disputed land is liable to be vested with the Government and therefore, following order is passed.
ORDER As discussed in the aforesaid judgment, it is hereby ordered to vest the agriculture land bearing Revenue Survey No. 404/60 admeasuring Hector 6. 37.38 situated at village Kamlpur, Taluka Dasada, with the Government without any encumbrance.
Issued today on 25th June, 2013 under my hand and seal.
Sd/ (Illegible) Deputy Collector Patadi.
4. The applicant herein carried the matter before the Collector, Surendranagar. The Collector, by his order dated 19/12/2014, held as under: "Considering revision application of the applicant, written arguments, impugned order passed by the collector, it appears that Tribhovanbhai Laghrabhai Harijan was granted Sathni land on new indivisible tenure. It reveals from the record that without obtaining any prior approval, he has sold the land in question though it was of new tenure at the time of its sell. It is also admitted by the applicant and respondent No4. When submission was made before the Mamlatdar to change tenure of disputed land and even after converting the land into new tenure, when appellant raised objection for making mutation Entry No2106 for entering the name, at that time, a proposal had to be made to the Collector about breach of condition instead of entering the name of the applicant on records which occurred due to lack of meticulous study of the successive entries of the village form No6. But, disregard of breach of condition, the tenure of land has been changed through oversight committed in examining the record and the entry in that regard was certified by entering the name of appellant. By the order of the Page 4 of 9 HC-NIC Page 4 of 9 Created On Sun Oct 01 23:34:06 IST 2017 C/SCA/16601/2017 ORDER Deputy Collector, Dhangadhra, the Land bearing Revenue Survey No. 404/60 admeasuring Hector 6. 37.38 situated at village Kamlpur, was rented out for selfcultivation to the respondent no.4 of the present case on new indivisible tenure. As per the conditions of the order of Sathni, the land has been granted to earn livelihood by harvesting crop through self cultivation every year. The Government with bona fide intention has granted the land to the tenant for maintenance of his family. But, it seems that, he does not care to obtain any prior approval of the competent authority and considered the land as means for making profit. The respondent No4 has sold the land rented to him on new indivisible tenure to the appellant of the present case Chhganbhai Arjanbhai Vegda of Surendranagar vide registered deed No. 14 dated 08/01/2007 and thereby, he has misused the land granted to him by the Government in good faith. Hence, it is proved from the record that breach of condition has taken place. As the decision of the Deputy Collector, Patdi to vest the disputed land appears proper, below mentioned order is passed hereby in this matter. Such finding mentioned by the Collector appears to be proper. Such finding of the Collector, which he mentioned after looking to the record that the disputed land was sold on 08/01/2007, whereas, it has been converted into old tenure on 07/05/2010, appears proper. Thus, the land has been sold without any prior approval despite of it being of new tenure. The judgments delivered by Gujarat High Court in S.C.A. No. 29374/07 and 3403/13 should be considered in this regard. The applicant got the land by way of tenancy. Hence, its original motive does not get served. In this regard, judgment delivered by Gujarat High Court in S.C.A. No. 3593/08 should be considered. As the submission made by the applicant does not appear to be acceptable, order as under is hereby passed.
ORDER The Revision Application of the applicant is hereby rejected and the order No. JMIN / VIVAD / Case No. 32, 53/1314 dated 19/12/2014 passed by the Collector, Surendranagar, is hereby confirmed. Further, the competent authority is hereby ordered to conclude the procedure regarding the breach of condition within 3 (three) months.
Under my hand and seal today on 12/05/2017.
By the order and in the name of Governor of Gujarat.
Sd/ Illegible (Vinay Vyasa) Secretary Revenue Department (Dispute) Ahmedabad.
Copy forwarded to : (1) The concerned parties (2) Select file.
5. The applicant ultimately went before the SSRD. The SSRD in the impugned order held as under: Page 5 of 9 HC-NIC Page 5 of 9 Created On Sun Oct 01 23:34:06 IST 2017 C/SCA/16601/2017 ORDER "The submission made as per aforesaid detail and the case papers are carefully studied. It is proved from the record that Shri Tribhovanbhai Laghrabhai Harijan was granted Sathni land on new indivisible tenure and without obtaining any prior approval, he has sold the land in question though it was of new tenure at the time of its sell. This fact has been admitted by the applicant and respondent No3. When submission was made before the Mamlatdar to change tenure of disputed land and even after converting the land into new tenure, when appellant raised objection for making mutation Entry No2106 for entering the name, at that time, a proposal had to be made to the Collector about breach of condition instead of entering the name of the applicant on records which occurred due to lack of meticulous study of the successive entries of the village form No6. But, disregard of breach of condition, the tenure of land has been changed through oversight committed in examining the record and the entry in that regard was certified by entering the name of appellant. By the order of the Deputy Collector, Dhangadhra, the Land bearing Revenue Survey No. 404/60 admeasuring Hector 6. 37.38 situated at village Kamlpur, was rented out for selfcultivation to the respondent no.3 of the present case on new indivisible tenure. As per the conditions of the order of Sathni, the land has been granted to earn livelihood by harvesting crop through self cultivation every year. The Government with bona fide intention has granted the land to the tenant for maintenance of his family. But, it seems that, he does not care to obtain any prior approval of the competent authority and considered the land as means for making profit. The respondent No3 has sold the land rented to him on new indivisible tenure to the appellant of the present case Chhganbhai Arjanbhai Vegda of Surendranagar vide registered deed No. 14 dated 08/01/2007 and thereby, he has misused the land granted to him by the Government in good faith. Hence, it is proved from the record that breach of condition has taken place. As the decision of the Deputy Collector, Patdi to vest the disputed land appears proper, below mentioned order is passed.
ORDER Application preferred by the appellant and respondent No3 is hereby rejected. The order of the Deputy Collector, Patadi, to vest the Land bearing Revenue Survey No. 404/60 admeasuring Hector 6. 37.38 situated at village Kamlpur, with the Government, is hereby confirmed.
Issued today on 19th December2014 under my hand and seal.
(Sd/) Illegibel (K. B. Bhatt) Collector, Surendranagar.
6. Against the concurrent findings of the three revenue authorities, the petitioner is here before this Court with this petition under Article 227 of the Constitution of India.
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7. Mr. Shelat, the learned counsel appearing for the applicant submitted that indisputably, the land was allotted by the State Government in favour of the respondent no.5 as a santhani land. Mr. Shelat, however, seeks to rely on one resolution of the State Government dated 20/12/2006, which is at Page34 of the paperbook, which provides that if a person, who has been allotted a restricted tenure of land, holds for a period of more than 15 years, then he can get the land converted to old tenure without paying the premium for the same. This resolution of the State Government is sought to be interpreted as if that on completion of the period of 15 years, the land of restricted tenure would automatically become one of old tenure and an absolute title would vest with the original allottee. The argument is that if an absolute title vests with the original allottee on the land being converted to old tenure, then he can dispose of the land to a third party by executing a sale deed.
8. I am afraid, the argument of the learned counsel deserves to be rejected outright. First, there is an absolute misinterpretation of the Government Resolution of 2006 referred to above. Even if, a santhani land is in possession of the allottee for more than 15 years, the title of the land would still remain with the State Government. It is the State Government, who can be said to be the absolute owner of the land in question. The policy of the State Government is to allot the land to a particular person so that he can cultivate the land and earn his livelihood out of the same. The allottee has no right worth the name to sell such land by executing a saledeed and make profit out of it. It appears that when the saledeed was executed by the respondent no.5 in favor of the applicant, the land was of a restricted tenure. It is only in 2010 that an expost facto sanction came to be granted with regard to the Page 7 of 9 HC-NIC Page 7 of 9 Created On Sun Oct 01 23:34:06 IST 2017 C/SCA/16601/2017 ORDER conversion of the land to old tenure.
9. Let me, for the time being, proceed on the footing that such conversion of a restricted land to old tenure was in accordance with law. The same would not confer any right much less any legal right in favour of the respondent no.5 to transfer the land in favour of the applicant. The tenure of the land has nothing to do with the right of the original allottee to sell the land and pocket the saleconsideration. If the entire transaction is held to be a nullity and fraud with the State Government, then the argument canvassed on behalf the applicant that he is a bonafide purchaser of the property for value without notice is liable to be rejected. The respondent no.5 had no valid title of ownership in his favour so that he could have transferred the land in favour of the applicant. The applicant as on date is in unauthorized possession of the land in question and in my view, the directions issued by the revenue authorities to take appropriate steps are absolutely in accordance with law.
10. In the course of my present sitting, while deciding the land matters, I have come across number of cases, in which, huge parcels of Government land, allotted with a laudable object, have been illegally and fraudulently transferred by the allottees. I am short of words to express my concern over the State largesses being wasted in this manner. In many of my orders, I have directed the authorities to act promptly and see to it that appropriate steps are taken in accordance with law.
11. The argument of delay has also not appealed to me. Although, even in cases of transactions, which are said to be nullity, the action has got to be taken within a reasonable period of time, yet, the transactions Page 8 of 9 HC-NIC Page 8 of 9 Created On Sun Oct 01 23:34:06 IST 2017 C/SCA/16601/2017 ORDER of the present nature should not be regularized on the ground of delay, otherwise, the very object of allotment of huge parcels of land on santhani basis will get frustrated.
12. I may only say that the reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of courts tends to degenerate into misplaced sympathy and generosity and private benevolence. It is essential to maintain the integrity of legal reasonings and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mode of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability. (see: Kerala Solvent Extractions Ltd. v. A.Unnikrishnan and another, (1994)2 LLJ SC 888)
13. Having regard to the findings recorded by the three revenue authorities, this application is rejected. The authorities concerned are directed to immediately proceed with taking over of the possession of the land, after due notice to the applicant herein.
(J.B.PARDIWALA, J.) aruna Page 9 of 9 HC-NIC Page 9 of 9 Created On Sun Oct 01 23:34:06 IST 2017