Ujiben Karnabhai Bharvad & 5 vs State Of Gujarat & 5 on 14 November, 2016

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Gujarat High Court

Ujiben Karnabhai Bharvad & 5 vs State Of Gujarat & 5 on 14 November, 2016

Bench: Abhilasha Kumari

                 C/SCA/1882/2015                                            ORDER




                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    SPECIAL CIVIL APPLICATION NO. 1882 of 2015

         ==========================================================
                   UJIBEN KARNABHAI BHARVAD & 5....Petitioner(s)
                                     Versus
                       STATE OF GUJARAT & 5....Respondent(s)
         ==========================================================
         Appearance:
         MR NISHIT GANDHI, ADVOCATE FOR MR SP MAJMUDAR, ADVOCATE for
         the Petitioner(s) No. 1 - 6
         MR RONAK RAVAL, ASSISTANT GOVERNMENT PLEADER for the
         Respondent(s) No. 1
         NOTICE SERVED for the Respondent(s) No. 1 - 6
         ==========================================================

          CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI

                                   Date : 14/11/2016


                                    ORAL ORDER

1. Heard Mr.Nishit Gandhi, learned advocate for Mr.S.P.Majmudar, learned advocate for the petitioners.

2. It is submitted that that the Collector has initiated suomotu proceedings against the order dated 31.08.2006, issued by the Deputy Collector, by issuing a Show Cause Notice dated 08.06.2012, after an inordinate delay of six years, for which reason, the proceedings are bad Page 1 of 4 HC-NIC Page 1 of 4 Created On Thu Feb 02 03:50:44 IST 2017 C/SCA/1882/2015 ORDER in law.

3. It is further submitted that the Show Cause Notice issued by the Collector is without jurisdiction as the order dated 31.08.2006, passed by the Deputy Collector has been passed in exercise of powers under Section 79A of the Gujarat Land Revenue Code, 1879 ("the Code"), delegated by the Collector to the Deputy Collector. In effect, it amounts to issuance of the Show Cause Notice on the powers exercised by the Collector himself. This would amount to review of the earlier order, which is not permissible.

4. It is further submitted that by the order dated 16.07.2013, the Collector has directed the forfeiture of the land in question without taking into consideration that the proceedings were initiated under Section 79A of the Code, which is regarding summary eviction of a person unauthorisedly occupying the land. It is contended that the father of the petitioners was allotted the land for cultivation, therefore, Page 2 of 4 HC-NIC Page 2 of 4 Created On Thu Feb 02 03:50:44 IST 2017 C/SCA/1882/2015 ORDER the petitioners are not unauthorised persons. The revenue entries mutating the name of the father of the petitioners are on record. Section 79A of the Code therefore, does not confer jurisdiction upon the Collector to order forfeiture of the land to the State Government and in this view of the matter, the impugned order and the order of the Secretary confirming the said order are bad in law.

5. The petition has been opposed by Mr.Ronak Raval, learned Assistant Government Pleader, who has referred to the Panchnama dated 21.02.2015, and has submitted that this Panchnama reveals that the land in question was not cultivated. Therefore, it has been rightly forfeited. He has further pointed out Condition No.7 of the order allotting the land to the father of the petitioner which states that if the land is not cultivated by the allottee, it would be taken back by the State Government.

6. Learned Assistant Government Pleader further submits that the Collector has the jurisdiction Page 3 of 4 HC-NIC Page 3 of 4 Created On Thu Feb 02 03:50:44 IST 2017 C/SCA/1882/2015 ORDER to issue a Show Cause Notice in order to initiate suomotu proceedings against the order of the Deputy Collector under Section 211 of the Code as the Deputy Collector is subordinate to the Collector.

7. Having heard learned counsel for the respective parties, this Court is of the view that the learned counsel for the petitioners has made out a primafacie case for the admission of the petition and the grant of interim relief.

8. Hence, the following order:

Issue Rule returnable on 31.01.2017. Statusquo, as it exists today qua the land in question, shall be maintained till the final decision of the petition.

9. Mr.Ronak Raval, learned Assistant Government Pleader, waives service of notice of Rule for the respondents.

(SMT. ABHILASHA KUMARI, J.) sunil Page 4 of 4 HC-NIC Page 4 of 4 Created On Thu Feb 02 03:50:44 IST 2017

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