Gujarat High Court
Rambuben vs State on 31 August, 1979
Author: M.R. Shah
Bench: M.R. Shah
SA/234/1981 11/ 11 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SECOND APPEAL No. 234 of 1981 With SECOND APPEAL No. 235 of 1981 For Approval and Signature: HONOURABLE MR.JUSTICE M.R. SHAH ========================================= 1. Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 2. To be referred to the Reporter or not ? No 3. Whether their Lordships wish to see the fair copy of the judgment ? No 4. Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5. Whether it is to be circulated to the civil judge ? No ========================================= RAMBUBEN PUNJABHAU & 27 - Appellant(s) Versus STATE OF GUJARAT - Defendant(s) ========================================= Appearance : None for Appellant(s) : None for Petitioner No(s).: for Appellant(s) : 1,3 - 6, 8,8.2.2 MR SP MAJMUDAR for Appellant(s) : 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6, 1.2.7, 1.2.8,1.2.9 - 3,3.2.2 - 4, 4.2.2, 4.2.3, 4.2.4, 4.2.5,4.2.6 - 6, 6.2.2, 6.2.3, 6.2.4, 6.2.5,6.2.6 - 7, 7.2.2, 7.2.3,7.2.4 - 8, 8.2.3, 8.2.4, 8.3.1, 8.3.2, 8.3.3, 8.3.4, 8.3.5,8.3.6 - for Appellant(s) : 0.0.0 MR KABIR HATHI, ASSTT. GOVERNMENT PLEADER for Defendant(s) : 1, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 11/06/2012 COMMON ORAL JUDGMENT
[1.0] As common question of law and facts arise in both these Appeals, they are disposed of by this common judgment and order.
[2.0] Second Appeal No.234 of 1981 under Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as "CPC") has been preferred by the appellants herein - original plaintiffs challenging the impugned judgment and decree dated 31.08.1979 passed by the learned Civil Judge (Senior Division), Porbandar in Regular Civil Suit No.62 of 1975 as well as the impugned judgment and order dated 01.05.1981 passed by the learned Appellate Court - learned Assistant Judge, Porbandar in Regular Civil Appeal No.49 of 1979 by which the learned Appellate Court has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court.
[2.1] Second Appeal No.235 of 1981 under Section 100 of the CPC has been preferred by the appellant herein - original plaintiff (now the heirs and legal representatives of the original plaintiff) to quash and set aside the impugned judgment and decree dated 31.08.1979 passed by the learned Civil Judge (Senior Division), Porbandar in Regular Civil Suit No.63 of 1975 as well as the impugned judgment and order dated 01.05.1981 passed by the learned Appellate Court - learned Assistant Judge, Porbandar in Regular Civil Appeal No.48 of 1979 by which the learned Appellate Court has dismissed the said Appeal confirming the judgment and decree passed by the learned trial Court.
[3.0] That the respective original plaintiffs were in possession and enjoyment of the suit lands - agricultural lands situated at village Kutiyana, District Junagadh and were cultivating the said agricultural lands on Ek Sali Basis (yearly lease). It appears that both the plaintiffs were in possession of more than 4 acres of agricultural lands. It appears that the Mamlatdar, Kutiyana issued the notices dated 13.09.1974 pursuant to the policy decision/order of the Revenue Department, State of Gujarat, calling upon the respective plaintiffs to pay the occupancy price for 4 acres of land at the rate of Rs.2300/- per acre and rest of the part of the agricultural land occupied by them be taken away from each of the plaintiff - occupant. It appears that by policy decision dated 21.04.1974, the State Government took a policy decision to allot 4 acres of land to the landless persons for their cultivation on payment of the occupancy prices at the rate of Rs.2300 per acre and rest of the land from the respective occupants be taken over from them and to distribute the same amongst other landless persons and each occupant should be allotted maximum 4 acres of agricultural land. Being aggrieved and dissatisfied with the aforesaid notices as well as the order dated 21.04.1974 issued by the State of Gujarat under its order of Revenue Department being Order No.LND:517:1087-A under which it was decided to allot maximum 4 acres of land to the respective occupants, the original plaintiffs insituted the aforesaid suits in the Court of learned Civil Judge (Senior Division), Porbandar contending inter-alia that as per the Government Resolution dated 01.03.1960 regarding permanent disposal of the waste land, the plaintiffs are entitled to entire land without payment of any price i.e. even if it is more than 4 acres of land. Therefore, the plaintiff instituted the suit for declaration and permanent injunction and also challenged the legality and validity of the aforesaid order dated 21.04.1974.
[3.1] That the suit was resisted by the defendant by filing the written statement at Exh.21. It was specifically denied that the suit land was not a very fertile land. It was submitted that every year the suit lands were given by public auction for a period of one year and it has been given to the highest bidder. It was further submitted that thereafter in the year 1963 it was given for cultivation to the plaintiffs for a period of 10 years and the lease hold rights were over and has expired in the year 1973 and therefore, the possession of the plaintiffs is unauthorized. It was also submitted that though the market value comes to Rs.6000 per acre, Government has decided to allot it to the plaintiffs at Rs.2300 per acre only. It was further submitted that Government has decided to take over the lands in excess of 4 acres from the plaintiffs and then to allot it to the landless persons under the policy and in order of priority. It was submitted that in respect of giving priority, the Rules are amended from time to time. It was submitted that by the policy reflected in Government Order dated 21.04.1974, it has been decided to allot the maximum 4 acres of land to the landless persons for cultivation at the price of Rs.2300 per acre and it has been decided to distribute the lands to the landless poor agriculturists equally by allotting them maximum 4 acres of land. Therefore, it was submitted that when the Rules and the policies have been changed and/or amended from time to time, the Government Resolution dated 01.03.1960 regarding disposal of the waste land is not applicable to the facts of the case. It was also submitted that as such order passed in favour of plaintiff for allotment of 4 acres of land was out of compassion shown by Government to the plaintiffs therefore, it was submitted that as the plaintiffs are having with them more lands, they cannot be granted more than 4 acres of land. It was also denied that the rules regarding allotment of lands on the definition of "economic holding" were applicable to the facts of the case. Therefore, it was requested to dismiss the suit.
[3.2] That the learned trial Court framed the issues at Exh.36 and thereafter on appreciation of evidence the learned trial Court partly decreed the suit by judgment and decree dated 31.08.1979 restraining the defendants from recovery of the possession of the suit land from the plaintiffs without due procedure of law. That the learned trial Court upheld the legality and validity of the order dated 21.04.1974 as well as the notice issued by the Mamlatdar, Kutiyana for implementation of the aforesaid order. However, considering the order passed by the Gujarat Revenue Tribunal in Appeal Nos.126/74 to 432/74 and 464/74, 477/74 and 478/74 and other allied revision applications observing that the Mamlatdar is required to consider as to which portion of the land is to be retained on permanent basis and on what occupancy price as per the order of the Government and which portion is to be kept for disposal of the remaining land, the learned trial Court directed the Mamlatdar to follow the judgment and order passed by the Gujarat Revenue Tribunal in aforesaid Revision Applications.
[3.3] Feeling aggrieved and dissatisfied with the respective judgment and decree passed by the learned trial Court in respective Regular Civil Suits, the respective original plaintiffs preferred Regular Civil Appeal Nos.49 of 1979 and 48 of 1979 before the learned Appellate Court and the learned Appellate Judge by impugned common judgment and order has dismissed both the aforesaid Appeals confirming the respective judgment and decrees passed by the learned trial Court passed in Regular Civil Suit Nos.62 of 1975 and 63 of 1975.
[3.4] Feeling aggrieved and dissatisfied with the impugned judgment and order passed by both the Courts below, the respective appellants herein (now heirs and legal representatives of original plaintiffs) have preferred the present Second Appeals under Section 100 of the CPC.
[4.0] Shri S.P. Majmudar, learned advocate appearing on behalf of the respective appellants has vehemently submitted that both the Courts below have materially erred in holding the subsequent orders passed by the State Government dated 21.03.1971 as well as 21.04.1974 are legal and valid. It is submitted that both the Courts below ought to have appreciated that the aforesaid subsequent orders are just contrary to the earlier Government Resolution dated 01.03.1960. It is submitted that under the earlier policy laid down by the G.R. dated 01.03.1960, it was resolved to give/entire land in occupation (may be more than 4 acres of the land) for cultivation to the person who is in occupation and possession of the land and therefore, the plaintiffs would be entitled to allotment of entire land on payment of occupancy prices irrespective of ceiling of the 4 acres of land.
[4.1] It is further submitted that as such the plaintiffs were entitled to purchase the land which they were cultivating since 1953-54 pursuant to the aforesaid G.R. of March 1, 1960 at six times the annual assessment. It is further submitted that as such orders passed by the State Government dated 21.03.1971 and 21.04.1974 produced at Exhs.76 and 77 were violative of Article 14 of the Constitution of India as they gave a special treatment so far as the plaintiffs and the suit lands are concerned. While all other lands in the State of Gujarat continued to be governed by the G.R. of March 1, 1960.
[4.2] It is further submitted by Shri Majmudar, learned advocate appearing on behalf of the appellants that even the fixation of market price at Rs.2300/- per acre is not justified in absence of any evidence to that effect. No other submissions have been made.
Making above submissions, it is requested to allow the present Second Appeals.
[5.0] Present Appeals are opposed by Shri Kabir Hathi, learned Assistant Government Pleader appearing on behalf of the State. It is submitted that as such there are concurrent findings of facts given by both the Courts below on appreciation of evidence holding the orders passed by the State Government at Exhs.76 and 77 dated 21.03.1971 and 21.04.1974 as legal and valid and not violative of Article 14 of the Constitution of India.
[5.1] It is submitted that as such the Government modified the earlier policy of allotment of the lands for agricultural purpose in the year 1971 by G.R. dated 21.03.1971 under which it was decided to allot the land to the landless persons for cultivation and for agricultural purposes maximum 4 acres of land and on the basis of the occupancy price determined and therefore, in view of the subsequent change in the policy, the reliance placed upon the earlier G.R. of 1960 is misplaced. It is submitted that for equal distribution of the land to the landless persons when a policy decision has been taken by the Government reflected in the order passed at Exh.76 dated 21.03.1971 to allot maximum 4 acres of land on payment of occupancy price and when the plaintiffs were called upon to pay the occupancy price of 4 acres and rest of the land to be returned to the Government so that the same can be allotted to other landless persons, both the Courts below have rightly dismissed the suit by observing that as such the plaintiffs would be entitled to 4 acres of land only as per the policy decision of the State Government in the subsequent order at Exh.21.03.1971. It is submitted that as such the aforesaid policy decision cannot be said to be discriminatory and/or violative of Article 14 of the Constitution of India as sought to be contended on behalf of the appellants.
[5.2] It is further submitted by Shri Hathi, learned AGP that the plaintiffs have encroached upon the Government land and therefore, as a matter of right, they cannot pray for allotment on payment of six times assessment. It is submitted that as such the plaintiffs are entitled to the land for agricultural purpose and for cultivation under the scheme of the Government which can be modified from time to time and therefore, the plaintiffs are entitled to only 4 acres of land on payment of occupancy price determined by the State Government at the rate of Rs.2300 per acre, under the order/G.R. of the State Government dated 21.03.1971 at Exh.76.
Making above submissions, it is requested to dismiss the present Second Appeals.
[6.0] Heard learned advocates appearing for respective parties at length and considered the impugned judgment and orders passed by both the Courts below as well as the documentary evidences on record from Record & Proceedings received from the trial Court. At the outset it is required to be noted that the original plaintiffs instituted the suits challenging the Government orders at Exhs.76 and 77 dated 21.03.1971 and 21.04.1974 and to declare them as illegal and violative of Article 14 of the Constitution of India. It is to be noted that under the Government order produced at Exh.76 dated 21.04.1974, Government framed a new policy for allotment of the land to the landless persons for agricultural purpose under which it has been decided to allot or give the land on permanent basis to the persons in occupation and possession of the Government land, for cultivation/agricultural purpose to the extent of 4 acres of land and on payment of occupancy prices. The reason seems to be to allot/give the land to the landless persons equally and a conscious decision has been taken by the State Government to allot maximum 4 acres of land on payment of occupancy price so that the person in occupation of the land can maintain his family members. It might be true that as per the earlier G.R. of 1960, there was no such restriction and/or maximum limit. But that does not mean that the State Government cannot modify and/or frame another policy and issue a fresh order. It is required to be noted at this stage that as such the respective persons in occupation and possession of the agricultural lands are as such encroachers and as a matter of right they cannot pray for allotment of land which they were cultivating. Under the circumstances, when the plaintiffs were called upon to pay the occupancy price for 4 acres of land for allotment and were called upon to return and/or hand over the possession of the excess land i.e. the land in excess of 4 acres so that the same cane be allotted to other landless persons, the same cannot be said to be illegal and/or violative of Article 14 of the Constitution of India. Considering the aforesaid facts and circumstances, both the Courts below have rightly held the Government orders / notice produced at Exhs.76 and 77 dated 21.03.1971 and 21.04.1974 as legal and valid and has rightly held that the plaintiffs are bound to abide by the same. The reliance placed upon the earlier G.R. dated 01.03.1960 by the plaintiffs is absolutely misplaced. The plaintiffs are governed by the subsequent policy of the State Government reflected in the order produced at Exh.76 dated 21.04.1974. Under the circumstances, the plaintiffs are entitled to the maximum 4 acres of land on payment of occupancy price determined by the State Government i.e. at Rs.2300 per acre. The plaintiffs cannot be permitted to retain the land in excess of 4 acres. Under the circumstances, no illegality has been committed by the Courts below in dismissing the suit confirmed by the learned Appellate Court which calls for interference by this Court in exercise of powers under Section 100 of the CPC.
[6.1] Now, so far as the contention on behalf of the plaintiffs that the subsequent orders/policy at Exhs.76 and 77 are violative of Article 14 of the Constitution of India is concerned, the same has no substance. It is to be noted and as stated herein above and even as admitted by Shri S.P. Majmudar, learned advocate appearing on behalf of the appellants that but for the policy of the State Government to allot the land to landless persons for cultivation and/or to regularize the encroachment, the plaintiffs as a matter of right could not have asked for the allotment of land on permanent basis. Under the circumstances, when the appellants have no right to claim the land as a matter of right, the policy decision of the State Government to allot maximum 4 acres of land cannot be said to be violative of Article 14 of the Constitution of India.
[7.0] In view of the above and for the reasons stated above, both these Second Appeals fail and they deserve to be dismissed and are, accordingly, dismissed. In both the Second Appeals, interim relief granted earlier stands vacated forthwith. No costs.
Sd/-
(M.R. Shah, J.) menon