Gujarat High Court
Madhaji Gugaji vs State Of Gujarat Through Secretary on 3 April, 2023
Author: Ashutosh Shastri
Bench: Ashutosh Shastri
NEUTRAL CITATION
C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11457 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
=============================================
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 or
any order made thereunder ?
=============================================
MADHAJI GUGAJI & 2 other(s)
Versus
STATE OF GUJARAT THROUGH SECRETARY & 4 other(s)
=============================================
Appearance:
MR.D K.PUJ(3836) for the Petitioner(s) No. 1,2,3
MS TEJAL RAJPUT ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1,2,3,4
RULE SERVED for the Respondent(s) No. 5
=============================================
CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI
Date : 03/04/2023
ORAL JUDGMENT
1. By way of this petition under Article 226 of the Constitution of India, the petitioners have challenged the legality and validity of the order which has been passed by the Page 1 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023 NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined revenue authorities and precisely have prayed for the following reliefs :-
"25(A) Your Lordships may be pleased to issue a Writ in nature of Mandamus or any other appropriate Writ/s, Order/s, and/or direction/s directing the Respondents, their agents, servants, subordinate officers to declare the land bearing Survey No. 688 of Village Makarba, Taluka :
City, District : Ahmedabad, admeasuring 02/77/21 Hec.Are.Sq.mtr., held by the petitioners as an old tenure land and further be direct the Respondent authorities to extend all the consequential benefits to the petitioners treating the said land to be of an old tenure land, by quashing and setting aside the Mutation Entry No. 3745 dated 13.11.1956 qua land bearing Survey No. 688 of Village Makarba, Taluka : City, District : Ahmedabad held by the petitioners.
[B] Your Lordships may be pleased to issue a Writ in nature of certiorari or any other appropriate writ/s, order/ s and/or, direction/s quashing and setting aside the impugned orders passed by the Respondent No. 2 - City Deputy Collector, Ahmedabad in RTS Appeal No. 81 of 2000 dated 10.09.2001; Order passed by the Respondent no. 2 in LB Revision Case No. 29 of 2002 dated 06.02.2004 as well as the Order passed by the Respondent no. 1 in Revision Application No. 6 of 2004 dated 20.10.2005.
[C] Your Lordships may be pleased to issue a writ in nature of Mandamus or any other appropriate writ/s, order/s, and/or, direction/s directing the Respondents their agents, servants, subordinate officers to refund the amount of Premium of Rs.3,37,53,920/- deposited by the petitioners with the respondent authorities for conversion of the land from new tenure to old tenure, after holding the land in question of band of an old tenure land.
[D] Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to grant ad-Page 2 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023
NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined interim/ interim relief directing the respondents, their agents, declare the land bearing Survey No. 688 of Village Makarba, Taluka : City, District : Ahmedabad admeasuring 2-77-21 Hec. Are.Sq.mtrs., held by the Petitioners as an old tenure land and further be direct the Respondents authorities to extend all the consequential benefits to the petitioners treating the said land to be of an old tenure land, as if the Mutation Entry No. 3745 dated 13.11.1956 qua land bearing Survey No. 688 of Village Makarba, Taluka City, District : Ahmedabad, is not in existence.
[E] Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to grand ad- interim/interim relief staying the execution, operation and implementation of the impugned order passed by the Respondent no. 2 - City Deputy Collector, Ahmedabad in RTS Appeal No. 81 of 2000 dated 10.09.2001; Order passed by the Respondent No. 3 in LB Revision Case No. 29 of 2002 dated 06.02.2004 as well as the Order passed by the Respondent no. 1 in Revision Application No. 6 of 2004 dated 20.10.2005 as well as Mutation Entry No. 3745 dated 13.11.1956 qua land bearing Survey No. 688 of Village Makarba, Taluka City, Ahmedabad, held by the petitioners.
[F] Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to grant ad- interim/interim relief directing the Respondents, their agents, servants, subordinate officers to refund the amount of Premium of Rs.3,37,53,920/- deposited by the petitioners with the Respondent authorities for conversion of the land from new tenure to old tenure after holding the land in question of band of an old tenure land. [G] Such other and further relief/s as may be deem just and proper in the facts and circumstances of the case may please be granted in favour of the Petitioners in the interest of justice."
Page 3 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023
NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined
2. It is the case of the petitioners that land bearing Survey No. 688 admeasuring 2-77-81 Hec.Are.Sq.mtrs., was in the name of father of the petitioners i.e. Guga Mohan in the year 1938 and his name was mutated in the revenue record vide mutation entry no. 2053 in revenue survey no. 688 in the Village Form No. 6. Subsequently, mutation entry no. 2640 dated 20.11.1948 was made in the revenue record of the land in question as protected tenant and later on the impugned mutation entry no. 3745 was made on 13.11.1956 whereby restriction was imposed upon the petitioners land by treating the same as new tenure land and the petitioners were directed not to transfer, alienate, sell away the land in question. It is the case of the petitioners that vide said entry the other portions of the land which were having different survey numbers were also ordered to be treated as new tenure land and aforesaid restriction was imposed upon. According to the petitioners, for conversion of the land from old tenure to new tenure as envisaged under the provisions of Bombay Land Revenue Code, no notice was served upon the father of the petitioners though the land was running in the name of the father. It is the case of Page 4 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023 NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined the petitioners that without making proper inquiry, in a routine casual manner on the basis of Circular issued by the Government, the entry was mutated in the revenue record and restriction was imposed upon the land. In fact, according to the petitioners, the said land was being cultivated by the father of the petitioners and was not a land under any grant from the government, it was on the basis of ownership and still in a routine manner, the land was converted from old tenure to new tenure. It is further the case of the petitioners that as soon as the legal heirs and representatives of the petitioners came to know about this entry, and as such they immediately preferred RTS Appeal No. 81 of 2000 before the respondent no. 2 - City Deputy Collector, Ahmedabad who vide order dated 10.09.2001 was pleased to reject the appeal filed by the petitioner mainly on the ground that the said grievance was raised after an unreasonable period of time and there is no satisfactory explanation about the same.
2.1. Feeling aggrieved by and dissatisfied with the said order passed in RTS Appeal, a petition was brought before this Court Page 5 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023 NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined being Special Civil Application No. 9022 of 2003. However, on account of the fact that statutory remedy was available, the said petition was withdrawn with a view to prefer an appeal before the Collector and the said petition came to be disposed of on 29.09.2003. Pursuant to the said order, an appeal was filed by the petitioners before the learned District Collector, Ahmedabad
- respondent no. 3 herein, which was numbered as LB Revision Case No. 29 of 2002 and by order dated 06.02.2004, respondent no. 3 was pleased to dismiss the revision application mainly on the ground that against various such similar orders passed by the State authorities by converting the land from old tenure to new tenure, the said issue was pending before the Hon'ble Apex Court in the form of SLP (C) No. 9328 and 9330 of 2001 where- in the Hon'ble Apex Court granted stay in favour of the State Government and as such, Revision Application came to be dismissed and it is against this order passed by the District Collector - respondent no. 3, a further Revision Application was filed before respondent no. 1 - Secretary, (Appeals) Revenue Department (SSRD) being Revision Application No. 6 of 2004. The respondent no. 1 also adopted the very same approach in Page 6 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023 NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined view of the fact that SLP is pending before the Hon'ble Apex Court, the request of the petitioners was not adhered to and Revision Application came to be dismissed by an order dated 24.10.2005 and these are the orders which are made the subject matter of present petition before this Court.
3. The petition was entertained by the Court by issuing rule on 23.09.2010 and later on it has come up for consideration before this Court with the aforesaid background.
4. Mr. D.K. Puj, learned advocate appearing for the petitioners has vehemently contended that by mere pencil entry the old tenure land without making proper verification without issuing notice or without granting any opportunity has been converted into new tenure land and thereby, restriction is imposed upon. It has been contended that this land is owned on ownership basis and it was not owned through any Government grant or allotted under any policy and as such, this conversion of old tenure to new tenure simply on the basis of Circular dated 21.09.1955 is also not possible to be applied over here, and the Page 7 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023 NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined restrictions could not have been imposed upon and that having not been considered by the authorities below, the order under challenge deserves to be corrected. Learned advocate Mr. Puj has further submitted that there are decisions to the effect taken by the co-ordinate Bench as well as confirmed by the Division Bench of this Court whereby, without making proper inquiry and without granting any opportunity, such pencil entry cannot be made by the authority simply because there exists a Circular and as such, for want of inquiry and opportunity to the petitioners, the restriction which has been imposed upon could not have been imposed and as such, since this has come to the notice of the petitioners, they have challenged the same. Further, learned advocate Mr. Puj has submitted that this issue of converting land from old tenure to new tenure in such a manner has been dealt with by the learned Single Judge in the petition being Special Civil Application No. 7878 of 1996 dated 04.02.1997 wherein in an identical situation, the learned Single Judge has dealt with the issue and passed the order to the effect that the said entry treating the land as a new tenure may become nonest and the land in question would not be land of old Page 8 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023 NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined tenure. If once this position is accepted it shall have to be said that relief being asked for by the petitioner shall have to be granted and accordingly the said petition came to be allowed and the entry to that effect was set aside. This conclusion arrived at by the learned Single Judge in the aforesaid petition was examined by the Division Bench of this Court in Letters Patent Appeal No. 626 of 1997 and by examining the Circular and the effect of policy, the Division Bench also came to the conclusion that such kind of action is impermissible and thereby without disturbing the order, the appeals came to be dismissed. Against this order passed by the Division Bench of this Court, the State filed SLP being Civil Appeal No. 2323-2324 of 2003 before the Hon'ble Apex Court and vide order dated 08.04.2009, even the Hon'ble Apex Court had also dismissed the appeal filed by the State and as such, when the issue of this nature is well being examined, it was obligatory on the part of the authority to just examine as to whether in a proper and legal manner that conversion effect has been given to the land of the petitioners and this is clearly absent in the present proceedings and as such, simply because the issue was pending before the Hon'ble Page 9 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023 NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined Apex Court, the authorities would not have deviated from examining the issue raised by the petitioners. 4.1. Learned advocate Mr. Puj has further drawn attention of this Court to yet another order which has been passed in Special Civil Application No. 7998 of 1992 decided on 13.03.2007 in which also, such kind of conversion has been deprecated and the orders passed by the authorities below have been set aside. The said order is attached on page 61 of the petition compilation and by referring to this order, Mr. Puj has submitted that the orders passed by the authorities below deserves to be quashed.
4.2. Learned advocate Mr. Puj has further submitted that substantially two reasons have been assigned by respondent no. 1 - SSRD while dismissing revision application that it is not established by leading evidence that erroneously the entry has been made to treat the land as new tenure and there appears to be a gross delay in assailing the same, but the learned advocate Mr. Puj has submitted that second reason is more vital which Page 10 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023 NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined has refrained the authority from adjudicating further is an issue about pendency of SLP before the Hon'ble Apex Court as referred to above. Learned advocate Mr. Puj by drawing attention to the order passed by the Hon'ble Apex Court on 08.04.2009 dismissing the stand of the Government, a request is made to direct the authority to re-examine the issue since substantially on the ground that the proceedings are pending before the Hon'ble Apex Court, revision application has not been entertained and as such, it has been contended that the matter requires to be remanded to appropriate authority for reconsidering in view of the aforesaid background. It has been further submitted that even apart from that this clear a stand which has been taken by the petitioners before the revisional authority has also not been dealt with and it is settled position of law that issue which has been raised and not dealt with and not considered is a good ground for remand and as such, in conjoint effect of these sequence of event, according to learned advocate Mr. Puj, the matter requires to be remanded back to the authority for reconsidering the issue. This request has been made with more emphasis on the ground that pursuant to the Page 11 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023 NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined earlier order which has been passed by the authority, a premium which has been determined of Rs.3,37,53,920/- has already been deposited with the Treasury by the petitioners and the said deposit is even at present lying with the authority and, therefore, bona fides of the petitioners are clear from the beginning and as such, now since the issue has been put to rest by the Hon'ble Apex Court in the year 2009, the authority may be directed appropriately to re-consider the same.
5. As against this, Ms. Tejal Rajput, learned advocate appearing for the respondent authorities has vehemently opposed the petition mainly on the ground that conversion has taken place from old tenure to new tenure quite couple of years back and there is a gross unexplained delay in approaching the authority and has further submitted that petitioners have failed to lead any material or evidence to establish that the new tenure tag has been incorporated erroneously. When that be so, even if the issue of conversion was pending before the Hon'ble Apex Court, on that consideration the authority was justified in dismissing the revision application. Further, learned Assistant Page 12 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023 NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined Government Pleader could not withstand to the circumstance that Hon'ble Apex Court now has already disposed of the SLP filed by the State on 08.04.2009 whereby the order passed by the Division Bench in an identical matter is confirmed and as such, the authority was justified in the year 2005 to take a view as has been taken, however, has submitted that in view of the fact that the deposit as indicated above is already made by the petitioners and now since the decision is taken by the Hon'ble Apex Court, appropriate order may be passed which may sub- serve interest of justice.
6. Having learned the learned advocates appearing for the parties and having gone through the material on record, few circumstances which are prevailing on record are not possible to be unnoticed by the Court.
6.1. First of all it appears that the learned Single Judge while dealing with the petition being Special Civil Application No. 7878 of 1996 has clearly observed in identical situation that conversion of land from old tenure to new tenure cannot be made without proper inquiry or in a routine manner simply Page 13 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023 NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined because there appears to be some circular and the Division Bench of this Court while affirming the same view has also clearly observed in paragraphs 4 and 5 that there is no merit in appeal filed by the State. These observations since relevant to the issue, the Court deems it proper to reproduce hereunder :-
"4. This was with regard to land bearing Survey No.74. It is very clear from the impugned order dated 3.8.1998 that the facts were identical. The facts with regard to the land bearing Survey No.74 are also identical as are obtaining in the case of land bearing Survey No.69. In para 9 of the judgement, the learned Single Judge has categorically mentioned that the learned Asstt. Govt. Pleader was not in a position to produce any record to show as to why new tenure entry was made in respect of land of Survey No.74 or any other land covering entry no.809. Therefore, it was not possible to distinguish this case from the case as it was in Special Civil Application No.7878 of 1996. The learned Single Judge has also given reasons at item no.(iii) in para 10 of the judgement as to why the petition could not be thrown on the ground of delay and following the order passed in Special Civil Application No.7878 of 1996 dated 4.2.1997, he has allowed the petition. We do not find any reason to take a view different than what has been taken by the learned Single Judge.
5. There is no merit in either of these two appeals. Both these appeals are accordingly dismissed in the facts of the case. No order as to cost."
6.2. The aforesaid order of Division Bench was made the subject matter of challenge before the Hon'ble Apex Court in Page 14 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023 NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined Civil Appeal Nos. 2323 - 2324 of 2003 which was converted to SLP 9329 & 9330 of 2001, came to be disposed of and the appeals filed by the State authority have been dismissed and as such, the issue has been put to rest and the resultant effect is that in a routine manner simply because there exists a Circular without giving opportunity to the petitioners, without making proper inquiry, old tenure land cannot be converted into new tenure land in a routine manner especially when the land belonging to the petitioners was on the basis of ownership and not on the basis of grant from the Government. It is true that in the year 2005, the respondent no. 1 authority was justified to some extent to dispose of revision application since the proceedings were pending before the Hon'ble Apex Court, but now since the SLP as stated above is disposed of, the issue requires reconsideration in the considered opinion of this Court. 6.3. Apart from this, the contentions which have been raised by the petitioners reflecting on page 40 appears to have not been considered and dealt with and no conclusion is visible from the order passed by the respondent - authority precisely SSRD. Page 15 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023
NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined Since in substance in view of the fact that the proceedings were pending before the Hon'ble Apex Court probably the said issues might not have been dealt with. So here to some extent, a case is made out by the petitioners that the contentions which have been raised have not been dealt with by the authority. Further, it is an undisputed position that the amount of premium which has been determined to the effect of Rs.3,37,53,920/- has been deposited in the Treasury by way of premium and the said amount is stated to have not been withdrawn so far and the same is still lying, which averment has been made in paragraph 18 has gone undenied since the same has not been controverted. Thus, considering the aforesaid situation which is prevailing on record, now since the issue with regard to this conversion has been put to rest by the Hon'ble Apex Court by confirming the order passed by the Division Bench of this Court in identical situation, the matter requires to be re-considered by the revenue authority and as such, a case is made out by the petitioners to remand the matter back for reconsideration. It is further to be noted that a specific ground has been taken on page 17 in clause (k) that without issuing any notice, without Page 16 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023 NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined holding any inquiry, straightaway on the basis of the Circular of Government, land has been converted from old tenure to new tenure by impugned mutation entry and same was the case before the learned Single Judge and the Division Bench, which decisions have been confirmed by the Hon'ble Apex Court and as such, matter requires to be remanded back. On further consideration, it appears that the grounds which have been taken and the contentions urged as reflecting in second paragraph of page 40 have also not been concluded and as such, this Court is of the considered opinion that conjoint effect of the aforesaid situation prevailing on record requires this Court to set aside the impugned order dated 24.10.2005 passed by the revenue authority - SSRD and the issues which are raised in the petition requires to be reconsidered in light of the aforesaid situation as stated above. Hence, the following order would meet the ends of justice.
7. The impugned order dated 24.10.2005 is hereby quashed and set aside with a consequential direction that Revision Application No. 6 of 2004 is directed to be re-considered in light Page 17 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023 NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined of the changed situation as indicated above, and appropriate order be passed afresh in accordance with law after assigning proper reasons.
7.1. The SSRD - respondent no. 1 herein is directed to re- examine the issue agitated by the petitioners and contentions which are raised shall be dealt with in accordance with law after due opportunity to the petitioners and after assigning proper reasons.
7.2. It is made clear that since respondent no. 1 is directed to reconsider and take a fresh decision, this Court has refrain itself from expressing any opinion on merits and it is open for respondent no. 1 to hear and dispose of the revision application independently in accordance with law without being influenced by the observations made by this Court in the present order. Since the issue relates to the year 2010, the respondent authority is directed to take a fresh decision in accordance with law after due opportunity to the parties, as early as possible preferably within a period of four (4) months from the date of receipt of writ of this Court.
Page 18 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023
NEUTRAL CITATION C/SCA/11457/2010 JUDGMENT DATED: 03/04/2023 undefined
8. With the aforesaid observations, the present petition stand allowed in part. Rule is made absolute.
(ASHUTOSH SHASTRI, J) phalguni Page 19 of 19 Downloaded on : Sun Sep 17 18:11:09 IST 2023