Gujarat High Court
Sursangji Dholaji Thakor vs State Of Gujarat & 3 on 30 March, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/4550/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 4550 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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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 ?
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SURSANGJI DHOLAJI THAKOR....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR MANAV A MEHTA, ADVOCATE for the Petitioner
MR VISHRUT JANI, ASSISTANT GOVERNMENT PLEADER for the Respondents
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
Date : 30/03/2017
ORAL JUDGMENT
1. Rule. Mr.Vishrut Jani, learned Assistant Government Pleader, waives service of notice of Rule on behalf of the respondents. On the facts, Page 1 of 21 HC-NIC Page 1 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT and in the circumstances of the case, and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally.
2. This petition under Articles 226 and 227 of the Constitution of India has been preferred with the following prayers:
"(A) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order and/or direction in the nature of certiorari, quashing and setting aside the impugned order dated 23.01.2017 respondent No.2 i.e. the District Collector, Ahmedabad;
(B) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order and/or directions in the nature of mandamus commanding the respondents to allot/ grant land bearing Block No.482, admeasuring 1 acre and 20 gunthas situated at Bopal, Ahmedabad to the applicant/ petitioner on such terms as the Hon'ble Court may deem fit;
(C) Pending admission hearing and till final disposal of the present petition, Your Lordships may be pleased to grant stay Page 2 of 21 HC-NIC Page 2 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT of operation, execution and implementation of the impugned order dated 23.01.2017 passed by respondent No.2 i.e. the District Collector, Ahmedabad, and be further pleased to restrain the respondents, their agents, officers and/or servants from disturbing in any manner whatsoever, the possession and enjoyment of the petitioner in respect of the subject land, in the interest of justice..."
3. The brief factual background in which the petition has been filed may be recapitulated. This is the third round of litigation before this Court. Land bearing revenue Survey No.358, at present Block No.482, admeasuring 5 Acres and 37 Gunthas, situated at Bopal, Ahmedabad, was declared as Government waste land as per revenue Entry Nos.2494, 2575, 2579 and 2580. Out of the said land, one parcel of land admeasuring 1 Acre and 20 Gunthas was granted to Ganpatji Becharji. Another parcel of land admeasuring 1 acre and 22 Gunthas was granted to Elavanji Chhagaji. A third parcel of land admeasuring 0 Acre and 30 Gunthas was granted to Pathaji Shanaji and the fourth parcel admeasuring 0 Acre 25 Gunthas was Page 3 of 21 HC-NIC Page 3 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT granted to Shivaji Hemaji. The said land was granted by the State Government under its existing policy. The case of the petitioner is that the remaining land out of Block No.482, admeasuring about 1 Acre and 20 Gunthas was in the possession of, and under cultivation by, the petitioner since decades. Hence, the petitioner was also entitled to receive the benefit of the said policy as was given to similarly situated persons.
4. In the earlier round of litigation, being Special Civil Application No.13910 of 2013, the petitioner had asserted that the land in question is still in his possession and as per revenue record, the name of the petitioner appears as the cultivator of the subject land since the year 199192. The case of the petitioner is that other similarly situated persons were granted parcels of land out of Block No.482 on permanent ownership basis, therefore he is also entitled to the same treatment, as per the provisions of the Government Resolution dated 15.02.1989. The Page 4 of 21 HC-NIC Page 4 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT petitioner made an application to the Mamlatdar, Dascroi, in the month of April 2004, for the grant of the subject land on permanent ownership basis. The Mamlatdar, Dascroi, submitted a report to the Deputy Collector on 27.08.2009, stating, inter alia, that as per the rules and regulations of the State Government, if the land can be granted to the petitioner, he could maintain his family and his standard of living could be improved. The Mamlatdar recommended the grant of the subject land to the petitioner by requesting the Deputy Collector that the land be allotted to the petitioner on permanent ownership basis as per the existing policy of the State Government. Pursuant thereto, the petitioner made an application dated 26.10.2009, to the Deputy Collector, Viramgam, for the grant of the subject land. The Deputy Collector passed an order dated 21.12.2009, informing the petitioner that his application could not be accepted and has been filed. This order was passed without granting an opportunity of hearing to the petitioner and no reason for not Page 5 of 21 HC-NIC Page 5 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT accepting the application was revealed. The petitioner, therefore, made another application dated 09.07.2010 to the Collector, indicating his willingness to convert the land for Non Agricultural use on payment of premium of 60% of the Jantri value. After considering the facts and circumstances of the case, the Mamlatdar, Dascroi, as also the Deputy Collector, gave a positive opinion in favour of the petitioner. However, the District Collector, vide the order dated 19.10.2010, rejected the application of the petitioner, on the ground that the said application had already been rejected earlier. The petitioner, therefore preferred Revision Application No.43/2010 before the Special Secretary (Appeals), Revenue Department ("SSRD"), raising several grounds. This application came to be rejected by an order dated 09.10.2012, that was challenged by the petitioner by filing Special Civil Application No.13910 of 2013. The stand taken by the petitioners in that petition was that the petitioner is in possession of the land in Page 6 of 21 HC-NIC Page 6 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT question since the year 1940 that is, and well before the mandatory period of three years before 31.03.1972, as per the policy of the State Government. The petitioner referred to the order of the SSRD, wherein it was accepted by the SSRD that the petitioner is in possession of the land in question prior to the year 1972. However, the SSRD rejected the revision application of the petitioner, inter alia, on the ground that the petitioner was not cultivating the land since 1972, but is shown to be cultivating it only with effect from 199192.
5. The petitioner also produced two Panchnamas prepared by the TalaticumMantri, Bopal, in the year 2014, indicating his possession over the subject land from 1940. Another Panchnama prepared by the TalaticumMantri, Bopal, in the year 2016, also indicates that the petitioner is cultivating the subject land and had grown crops of Juwar on it. The petitioner further raised the issue of similar treatment with identically situated persons and highlighted the aspect that he had been discriminated against, as similarly Page 7 of 21 HC-NIC Page 7 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT situated persons had been allotted the land on permanent ownership basis, whereas he was denied this entitlement in spite of the fact that he is covered by the policy and is willing to pay premium.
6. The stand of the State Government in the said petition was that it cannot be said that the Panchnamas carried out in 2014 and 2016, by the TalaticumMantri, Bopal, were under the directions of the Collector's office and that from the said Panchnamas, it cannot be concluded that the petitioner has been cultivating the land from the year 1972. However, the fact remains that the Panchnamas were carried out by the Mamlatdar, who is a revenue authority and were never challenged.
7. With regard to the possession of the petitioner over the land in question, this Court, vide judgment dated 14.12.2016, passed in Special Civil Application No.13910 of 2013, held as below:
"11. There does appear to be ample material Page 8 of 21 HC-NIC Page 8 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT on record to indicate the long possession of the petitioner over the subject land, which is fortified by the Panchnama carried out by the Talati, Bopal, in the year 2014, a copy of which has been produced by the petitioner. This Panchnama clearly indicates that the possession of the petitioner over the subject land arises from the years 1940 to 1973. Another Panchnama made in the year 2016 by the Talati, Bopal, indicates that the petitioner is cultivating the subject land and at present has grown a crop of Juvar on it.
12. It is the specific case of the petitioner that similarly situated persons have been granted land, out of the same block on a permanent ownership basis, whereas the petitioner is being discriminated against and similar treatment is not being given to him in spite of the fact that he is in possession of the land from the year 1940 and there is ample evidence of his cultivating the land since the year 199192. It is the possession of the petitioner prior to the year 1972 that is material, as has been indicated by the SSRD in the impugned order. The aspect of possession is established from the revenue record, therefore, there is no reason on the part of the respondent authorities to mete Page 9 of 21 HC-NIC Page 9 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT out discriminatory treatment to the petitioner visavis similarly situated persons.
13. It is not the case of the Collector that the petitioner is not in possession of the land. As indicated earlier, both the orders of the Collector dated 21.12.2009 and 19.10.2010, contain no reasons whatsoever. Despite this glaring fact, the SSRD has upheld the unreasoned cryptic order of the Collector dated 19.10.2010. Not only that, the SSRD has proceeded to give his own reasons and has then stated that he confirms the order of the Collector. The SSRD has clearly accepted the position that if the person concerned is in possession of the land in question prior to 31.03.1972, such possession can be regularised as per the Policy of the State Government. The petitioner clearly falls within the policy of the State Government. However, the SSRD further goes on to say that the extracts of Village Form No.7/12 indicate that the petitioner is cultivating the land since the year 199192. As per the Policy of the State Government, accepted by the SSRD, it is the possession of the petitioner that would be material and not the cultivation of the land by him. As per the policy, the possession has to be prior to 31.03.1972, the Page 10 of 21 HC-NIC Page 10 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT cultivation of the land is not material. In the present case, there is evidence on record that the possession of the petitioner is from the years 1940 to 1972, though the cultivation has been recorded in the revenue records from the year 199192. In view of the above, there is no legally justifiable reason for the rejection of the application of the petitioner who deserves to be accorded the same treatment on the basis of the policy of the State Government, as has been given to similarly situated persons who have been granted lands out of the same Block. The petitioner cannot be discriminated against as his case is similar to those persons who have been granted land on permanent ownership basis. To do so would amount to a violation of Article 14 of the Constitution of India by the Collector, which cannot be permitted. The petitioner has also expressed his willingness to pay premium for the land."
8. With regard to the orders passed by the Collector rejecting the application of the petitioner, this Court found that the said orders were cryptic and unreasoned and it was not the case of the respondents, in the first place, that the petitioner did not have Page 11 of 21 HC-NIC Page 11 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT possession over the land as no such finding was recorded by the Collector in the previous orders dated 21.12.2009 and 19.10.2010.
9. Regarding the submission of the petitioner that he had been discriminated against as the same treatment was not meted out to him as was meted out to similarly situated persons, this Court found substance in the said submission and, therefore allowed the petition by issuing certain directions as below:
"15. For the aforestated reasons, this Court considers it just and proper to pass the following order:
(i) The impugned order dated 06.10.2012, passed by the SSRD and the order dated 19.10.2010, passed by the District Collector, Ahmedabad, are hereby quashed and set aside.
(ii) The petitioner shall make a fresh application for the grant of the subject land to him before the Collector, within a period of fifteen days from the date of the receipt of the order. It will be open for the petitioner to produce additional material with the application.
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(iii) The Collector, Ahmedabad, is directed to pass an appropriate order, in accordance with law, on the application preferred by the petitioner for the grant of the subject land, keeping in mind the material on record as well as any additional material that may be produced by the petitioner. The Collector shall also keep in mind the observations made by this Court in this order and ensure that the same treatment is meted out to the petitioner as has been given to similarly situated persons.
(iv) Before deciding the application, the Collector, Ahmedabad, shall grant an opportunity of hearing to the petitioner.
(v) The application shall be decided by the Collector as expeditiously as possible but not later than six weeks from its receipt, by passing the speaking order, considering the willingness of the petitioner to pay premium."
10. Pursuant to the said judgment, the petitioner made a representation before the Collector dated 31.12.2016. The Collector, by the order dated 23.01.2017, has rejected the said representation. This order is the subjectmatter of challenge in the present petition.
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11. Mr.Manav A. Mehta, learned advocate for the petitioner, submits that while passing the impugned order, the Collector primarily records two aspects that fly directly in the face of the findings recorded by this Court in the judgment dated 14.12.2016, namely (i) that the petitioner has not been able to show that he is in possession of the land in question and there is no material on record to indicate his possession over the subjectland, and (ii) as per the policy of the State Government, the petitioner is required to be in possession of the land since 01.03.1960.
12. It is submitted that insofar as the findings regarding possession are concerned, they are diametrically opposite to the findings recorded by this Court. It is submitted that the SSRD rejected the revision application of the petitioner on the ground that the petitioner was not in possession of the land prior to 1972, but was cultivating the land between 199192. This finding has been set aside by this Court by the judgment dated 14.12.2016. Therefore, the Page 14 of 21 HC-NIC Page 14 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT Collector cannot now record a contrary finding that the possession of the petitioner is required to be established from 1960 and not from three years prior to 1972.
13. It is next submitted that insofar as the second aspect regarding the material on record is concerned, the Collector has not taken into consideration the Panchnamas drawn by the TalaticumMantri, Bopal, which records the possession of the petitioner since 1940.
14. Mr.Vishrut Jani, learned Assistant Government Pleader, appearing for the State Government has read out the order of the Collector and has defended the said order by submitting that his submissions would be in consonance with the said order.
15. Learned Assistant Government Pleader has also raised an objection that the petitioner has an alternative remedy and may challenge the order before the SSRD.
16. This Court has heard learned counsel for the Page 15 of 21 HC-NIC Page 15 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT respective parties at length and has perused the averments made in the petition, contents of the impugned order and other documents on record.
17. At the first instance, this Court may deal with the preliminary objection raised by the learned Assistant Government Pleader.
18. The order of the Collector that is impugned in the petition is a result of the judgment of this Court dated 14.12.2016, whereby, the Collector had been directed to pass an order, keeping in mind certain observations made by the Court in the said judgment. The case of the petitioner is that the Collector, while passing the order, has overreached the observations made by the Court and has recorded contrary findings, therefore, the petition came to be filed before the Court. Under such circumstances, it is preposterous to think that the judgment of this Court would be under the further scrutiny of the SSRD, as indirectly suggested by the learned Assistant Government Pleader. The order of the Collector Page 16 of 21 HC-NIC Page 16 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT is not an outcome of any statutory appeal where the alternative remedy is provided for, therefore, the submission advanced by the learned Assistant Government Pleader is rejected outright.
19. Learned Assistant Government Pleader has read, meticulously, the order of the Collector and the findings recorded therein. He has laid stress on those very findings that are contrary to the observations recorded by this Court in the judgment dated 14.12.2016, and has asserted that these are his submissions.
20. It may not be overlooked that the judgment dated 14.12.2016, has attained finality as it has not been challenged by the respondents. The respondents therefore, especially, the Collector, could not have recorded recorded findings contrary to the observations contained in the said judgment. That is exactly what has been done in the impugned order. It is almost as though the Collector has sat in appeal over the judgment of this Court and overruled those Page 17 of 21 HC-NIC Page 17 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT portions that were not to her liking. Even certain aspects of the previous order of the SSRD, which now no longer exist, have been deviated from by the Collector; meaning thereby, that the Collector has taken a new stand and taken out new grounds that never existed in the previous orders of the Collector or SSRD. Had it been a case where the Court had not made any observations, there would have been nothing more to say. However, when the Collector has been specifically directed to pass the order keeping in mind the observations made by the Court and contrary findings have been recorded, it clearly reveals that the Collector has deliberately disregarded the observations made by this Court, which is an act bordering upon contempt.
21. To make matter worse, the stand of the State Government before the Court is equally defiant and supportive of the near contemptuous action of the Collector, who has indirectly overruled the observations and findings of this Court contained in the judgment dated 14.12.2016. In addition, a submission is made by the learned Page 18 of 21 HC-NIC Page 18 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT Assistant Government Pleader that he is bound to defend the action of the Collector. That may be so. However, insofar as the order of the Court and its binding nature is concerned, as an officer of the Court, such a stand was not expected.
22. Insofar as the aspect of the possession of the petitioner over the land in question is concerned, this Court cannot have anything further to say because findings based on material on record have already been recorded in the judgment, which need not be reiterated at this stage.
23. Insofar as the aspect of discriminatory treatment meted out to the petitioner is concerned, the Collector has stated in the impugned order that the other persons who were granted land on a permanent basis were in possession thereof prior to 1960. The Collector has not taken into consideration the Panchnama drawn by the TalaticumMantri, Bopal, which clearly establishes that the petitioner has been Page 19 of 21 HC-NIC Page 19 of 21 Created On Mon Aug 14 01:00:14 IST 2017 C/SCA/4550/2017 JUDGMENT in possession of the land since 1940, though this Panchnama was produced by the petitioner before the Collector.
24. The aspect that the petitioner is similarly situated to those persons who were allotted land from the same Block is established, and to meted out discriminatory treatment to the petitioner would amount to the violation of Article 14 of the Constitution of India, which aspect has already been recorded by the Court in the judgment dated 14.12.2016.
25. Taking into consideration all the above aspects and for the aforestated reasons and those recorded in the judgment dated 14.12.2016, passed in Special Civil Application No.13910 of 2013, this Court considers it appropriate to pass the following order:
(i) The impugned order dated 23.01.2017, passed by respondent No.2 - Collector, Ahmedabad, is hereby quashed and set aside.
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(ii) Respondent No.2 is directed to pass an appropriate order in respect of the application dated 31.12.2016 made by the petitioner, in accordance with the orders passed in the cases of similarly situated persons who have been granted land on a permanent ownership basis out of Block No.482, and also by considering the policy of the State Government as well as the aspect that the petitioner is ready to pay premium as per the existing policy.
(iii) The needful be done as expeditiously as possible but not later than a period of four weeks from the date of the receipt of a copy of this order.
26. The petition is allowed in the above terms. Rule is made absolute, accordingly. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) sunil Page 21 of 21 HC-NIC Page 21 of 21 Created On Mon Aug 14 01:00:14 IST 2017