Gujarat High Court
Bharatbhai Popatlal Bhut vs State Of Gujarat & 2 on 26 December, 2017
Author: R.M.Chhaya
Bench: R.M.Chhaya
C/SCA/252/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 252 of 2016
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BHARATBHAI POPATLAL BHUT....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR ANSHIN DESAI, LD. SENIOR COUNSEL WITH MS. VENU H NANAVATY,
ADVOCATE for the Petitioner(s)
MR RUTVIJ OZA, AGP for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE R.M.CHHAYA
Date : 26/12/2017
ORAL ORDER
1. Heard Mr.Anshin Desai, learned Senior Counsel assisted by Ms.Venu H. Nanavaty, learned counsel for the petitioner and Mr.Rutvij Oza, learned Assistant Government Pleader for the respondents.
2. By way of this petition under Article 226 of the constitution of India, the petitioner has challenged the order dated 24.09.2015 passed by learned Special Secretary, Revenue Department (Appeals), in Revision Application No.MVV/JMN/RJT/38/2010, whereby the learned Secretary has rejected the revision filed by the petitioner and confirmed the order dated 22.06.2010 passed by District Collector, Rajkot. The petitioner has also prayed for appropriate writ, order or direction, directing respondent No.2 to renew the lease and in the alternative, to grant the land permanently to the petitioner being Survey No.354 paiki, admeasuring 4 gunthas,, situated at village Kotda Sangani, Taluka and District Rajkot.
3. That the following facts emerge from the record of the petition:-
Page 1 of 8HC-NIC Page 1 of 8 Created On Thu Jan 25 23:13:12 IST 2018 C/SCA/252/2016 ORDER 3.1 The father of the petitioner was granted land bearing Survey No.354 paiki, admeasuring 4 Gunthas, situated at Kotda Sangani, Taluka and District Rajkot, on lease for a period of 30 years for the purpose of growing trees vide order dated 06.02.1965, wherein certain conditions were provided for regarding the use of land by the Government vide its order dated 28.04.1965. Thereafter, after the death of father of the petitioner, entry no.1224 came to be mutated in the revenue records in favour of the petitioner on 17.01.1979 and since then, the petitioner has fulfilled all the terms and conditions of grant and renewal till date and has spent his long life in developing and growing the trees on the said land.
3.2 It appears from the record that, there are various fruit bearing trees on the said land and the petitioner has also taken care for betterment, protection and development of the said land. It further appears that, one of the conditions to the lease granted vide order dated 06.02.1965 is that, after completion of 30 years,if it is found that the land is properly looked after and trees are developed, the allottee shall be entitled to the grant of land on regular basis and therefore, on 21.12.1994, the petitioner made various applications before learned Asst. Collector, Rajkot, Mahalkari and Gram Panchayat, Kotda Sangani for grant of the land on regular/permanent basis as per condition No.9 of the lease agreement, as the lease period of 30 years was going to expire. Thereafter, the petitioner sent various reminders to the concerned authorities vide applications dated 08.09.1995 and 21.09.1995. However, the respondent authorities were not considered the requests and applications made by the petitioner.
3.3 That on completion of 30 years, the petitioner again made an application for renewal of the lease to the concerned authority and pursuant to the same, Collector, Rajkot, renewed the lease for further period of 15 years vide order dated 24.11.1995. Thereafter, on 24.02.1996, the petitioner made one Page 2 of 8 HC-NIC Page 2 of 8 Created On Thu Jan 25 23:13:12 IST 2018 C/SCA/252/2016 ORDER more application to the Revenue Department, State of Gujarat, for grant of the land on regular/permanent basis as per condition No.8 of the lease agreement. In response to the same, District Collector, Rajkot, rejected the request of the petitioner stating that there is no provision or clause for granting the land on permanent/regular basis to such lease holder.
3.4 Thereafter, the petitioner made further communications dated 09.09.1999, 18.06.2000, 03.04.2003 and 16.03.2004 to the Revenue Department and stated about condition No.8 of the lease agreement. Therefore, the respondent authority sent the representations of the petitioner to District Collector, Rajkot for further procedure. As nothing has been done, the petitioner again made representations to District Collector, Rajkot and requested about the grant of permanent lease. District Collector, Rajkot again passed the same order stating that as there is no provisions or clause which grants the Government to grant land permanently to such allottee and thereby, declined to grant the same.
3.5 Thereafter, the petitioner made further applications to Asst. Collector on 06.08.2009 and District Collector, however, District Collector without giving any notice or giving an opportunity of hearing to the petitioner, straightaway passed the order dated 22.06.2010 rejecting the application for renewal of lease made by the petitioner. Being aggrieved by the order of District Collector, Rajkot, the petitioner preferred revision being Revision Application No.MVV/JMN/RJT/38/2010, wherein the learned Secretary rejected the revision filed by the petitioner vide impugned order dated 24.09.2015 and hence, present petition is filed.
4. Learned counsel for the petitioner has contended as under:-
(i) That the order in origin dated 22.06.2010 passed by Page 3 of 8 HC-NIC Page 3 of 8 Created On Thu Jan 25 23:13:12 IST 2018 C/SCA/252/2016 ORDER District Collector is in total breach of principles of natural justice and is passed without issuing any notice and without giving any opportunity of being heard to the petitioner and therefore, the impugned orders are bad in law.
(ii) That both the authorities below have ignored the Resolution of the State Government dated 26.04.2010 and even though as per the renewal policy, the same has been discarded on non-germane grounds and similarly, the learned Secretary has just confirmed the order without giving any reasons whatsoever.
(iii) It was also contended that the Government Resolution would apply to new grant only and not to the old grant by which the person in whose favour land is granted has already developed the land as is done by the petitioner.
(iv) Relying upon Clause 5 of the Government Resolution dated 26.04.2010, learned counsel for the petitioner contended that the same applies in case of renewal whether there is any breach of condition, which postulates with such clause does not bar the renewal.
(v) That both the authorities have misread the conditions of grant of lease dated 28.04.1965 and except relying upon the said Government Resolution, both the authorities have given no reasons whatsoever.
(vi) He relied upon the photographs of the land occupied by the petitioner, which are forming part of the petition and contended that all throughout more than four decades, the petitioner has developed the land in question and has converted a barren land into a dense green cover and therefore, the impugned orders are bad in law and the same deserve to be quashed.
(vii) It was also contended that, District Collector without giving an opportunity of hearing to the petitioner has passed Page 4 of 8 HC-NIC Page 4 of 8 Created On Thu Jan 25 23:13:12 IST 2018 C/SCA/252/2016 ORDER the order and that the District Collector has wrongly relied upon the Government Resolution dated 01.11.2003 without assigning any reasons and without proper application of mind and also without considering whether such Government Resolution would have any retrospective effect or not.
(ix) He further contended that the land in question which has been allotted to the petitioner is fully developed and if the petitioner is deprived of the possession, the Government is not to use the land for any other purpose. He relied upon the following judgments of this Court to buttress his arguments:-
(i) SCA No.8438/1993
(ii) SCA No.11333/2017 (Indiraben Mansukhlal Doshi Vs. State of Gujarat & Ors.)
(iii)SCA No.2446/2012 (Heirs of decd. Harijan Soma Hamir Vs. State of Gujarat)
(iv) SCA No.6791/2013 (Ramjibhai Virjibhai Kothrotia & Anr. Vs. State of Gujarat)
(v) SCA No.11156/2000 (Aahir Parbatbhai Govindbhai Vs.State of Gujarat)
(vi) SCA No.4944/2012 along with allied matters (Jaskubhai Amrabhai Dhadhal Vs. State of Gujarat & Ors.)
5. As against this, Mr.Rutvij Oza, learned AGP relying upon the impugned orders as well as the Affidavit-in-Reply filed by respondent no.3, submitted that as per the Government Resolution dated 26.04.2010, if the land falls within a radius of 20 kms. of municipal limits and 10 kms. of taluka limits, the same was declared uncultivated and subject to new circular or Resolution of the Government and therefore, the lease of the petitioner cannot be renewed. He further submitted that in absence of any challenge to the Government Resolution, the Page 5 of 8 HC-NIC Page 5 of 8 Created On Thu Jan 25 23:13:12 IST 2018 C/SCA/252/2016 ORDER contention raised by learned counsel for the petitioner deserves to be negatived and therefore, present petition deserves to be dismissed.
No other or further submissions have been made by learned counsel for the parties.
6. On perusal of the record of this petition and considering the averments made in the petition, it appears that the petitioner's father was granted land i.e. Survey No.354 paiki, admeas.4 gunthas, situated at Kotda Sangani, Taluka and District Rajkot, for the purpose of growing trees vide order dated 06.02.1965 by Mamlatdar, for a period of 30 years.
7. It is not a matter of dispute that the present petitioner is son of original allottee and has right to continue in pursuance of lease of the land in question. It is also a matter of record that entry No.1224 came to be mutated in the name of the petitioner after death of his father way back on 17.11.1979. As stated in paragraph No.6.3 of the petition, which is not controverted by the respondent and which is also ocular from the photographs annexed with the petition, the petitioner has developed the land in question for the purpose for which it was granted to his father.
8. It is not a case of the respondent that, there is any breach of condition either by the original allottee or thereafter by the petitioner, who is son of original allottee. It is also a matter of record that license was renewed for a period of 15 years on 24.11.1995. The impugned order as well as the affidavit is based only on Government Resolution dated 26.04.2010 and the authorities below have heavily relied upon the same.
9. On bare reading of the said Government Resolution dated 26.04.2010, it clearly postulates that such policy declaration was made by the State Government on basis of national policy for growing of fruit bearing trees and other trees for Page 6 of 8 HC-NIC Page 6 of 8 Created On Thu Jan 25 23:13:12 IST 2018 C/SCA/252/2016 ORDER registered trust. In preamble itself, there is clear cut mention that a trust registered under the provisions of the Bombay Trusts Act and the purpose for which such policy has been made applicable since 01.01.1987. The Resolution refers to the national scheme for developing the uncultivated land for two purpose namely growing more trees to achieve balance of environment and secondly, to provide employment to poor staying in villages. If all conditions of the Resolution are taken into consideration, the same relate to allotment of land to a registered trust and ultimate clause, which is picked up by the authorities to deny renewal to the petitioner in the instant case does not deal with renewal part and the contention raised by the petitioner that it does not apply to the lease, which is already granted deserves to be upheld.
10. In absence of any material on record to show that the petitioner or original allottee has committed any breach of the condition, denial of renewal of lease to the petitioner would be illegal and arbitrary. There is nothing on record to show that existing lease cannot be renewed when person has already developed the land as is found in the present case as held by this Court in catena of decisions, which are relied upon by learned counsel for the petitioner. It has been held by this Court that earlier policy while considering renew as earlier original allottee was granted lease for a period of 30 years, nowhere prescribes that the conditions which may be changed thereafter shall ipso facto apply to the present case also. Even the decision rendered by Division Bench of this Court in the case of Dilharba Wd/o. Bahadursinh Mohabatsinh Jehwa Vs. State of Gujarat & Anr., in LPA No.2663/2010 dated 30.11.2011, which is considered by this Court in Special Civil Application Nos.2446/2012, 11156/2012 and 4944/2012 and allied matters, the reason given by both the authorities below are non-germane and existing lease cannot be made subjected to the provisions of the Resolution dated 26.04.2010. Even if independently Government Resolution dated 26.04.2010 is considered, not only the same as prospective effect, the same relates to allotment Page 7 of 8 HC-NIC Page 7 of 8 Created On Thu Jan 25 23:13:12 IST 2018 C/SCA/252/2016 ORDER of new lease to a registered trusts.
11. In light of the aforesaid, both the impugned orders i.e. order dated 24.09.2015 passed by learned Special Secretary, Revenue Department (Appeals), in Revision Application No.MVV/JMN/RJT/38/2010 and the order dated 22.06.2010 passed by District Collector, Rajkot, are hereby quashed and set aside. District Collector, Rajkot, is hereby directed to consider the application/representation for renewal of the lease qua the land in question made by the petitioner de novo after giving an opportunity of hearing to the petitioner and after considering the submissions that may be made by the petitioner by applying the applicable Resolutions of the State Government, as expeditiously as possible. It would be open for the petitioner to file further reply and rely upon further documents and such opportunity may be given by the District Collector, Rajkot.
With the aforesaid observations, present petition is allowed to the aforesaid extent. No costs.
Direct Service is permitted.
(R.M.CHHAYA, J.) Suchit Page 8 of 8 HC-NIC Page 8 of 8 Created On Thu Jan 25 23:13:12 IST 2018