Gujarat High Court
State Of Gujarat vs Thobhanbhai Mombhai Dabhi on 20 April, 2023
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
NEUTRAL CITATION
C/SCA/6702/2023 ORDER DATED: 20/04/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6702 of 2023
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STATE OF GUJARAT & 3 other(s)
Versus
THOBHANBHAI MOMBHAI DABHI
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Appearance:
MS HETAL PATEL, AGP for the Petitioner(s) No. 1,2,3,4
for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 20/04/2023
ORAL ORDER
1.Heard learned Assistant Government Pleader Ms.Hetal Patel for the petitioners-State.
2.By this petition under Article 227 of the Constitution of India, the petitioners-State of Gujarat and the Collector, Rajkot have challenged the order dated 08.09.2021 passed by the Special Secretary Revenue Department (Appeals)(for short 'the SSRD') in Revision Application No.MVV/JMN/RJT/04/2020 filed by the respondent No.1 challenging the order Page 1 of 14 Downloaded on : Sun Sep 17 18:41:27 IST 2023 NEUTRAL CITATION C/SCA/6702/2023 ORDER DATED: 20/04/2023 undefined dated 25.11.2019 passed by the Collector in Revision Application No.12/2019 cancelling the conversion of the land admeasuring 4 Acres situated at Survey No.167 paiki at Village:Lothda, District: Rajkot.
3.Brief facts of the case are that the land situated at Village:Lothda, Taluka and District:Rajkot bearing Survey No.167 was initially allotted to total eleven persons in the year 197l under 'Sathni Scheme' by the Deputy Collector vide order date 31.05.1971.
4.Out of those eleven persons, late father of the respondent No.1 i.e. late Mombhai Patabhai Bharvad was also allotted land as Original Sathnidar in the year 1971 as a new tenure land by the Deputy Collector vide allotment order dated 31.05.1971 under the Santhni Scheme upon mandatory fulfillment of certain conditions enumerated in the Page 2 of 14 Downloaded on : Sun Sep 17 18:41:27 IST 2023 NEUTRAL CITATION C/SCA/6702/2023 ORDER DATED: 20/04/2023 undefined allotment order dated 31.05.1971 i.e. (i) the original Santhnidar/original allottes should have taken the possession of land in question at the time of allotment. (ii) the original Sathnidar/original allottees should have cultivated the land in question continuously for fifteen years. (iii) the original Sathnidar/original allottees should have been holding the possession of the land in question continuously for fifteen years and lastly (iv) the name of original Sathnidar/ original allottees should have been reflected in the Revenue Records since 1971.
5.The Revenue Department, Government of Gujarat on 19.02.2018 issued a Government Resolution wherein, the cases whereby the original Sathnidar/original allottees, if had not taken the possession of the land at the time said of allotment, then as per the said Government Resolution those original Page 3 of 14 Downloaded on : Sun Sep 17 18:41:27 IST 2023 NEUTRAL CITATION C/SCA/6702/2023 ORDER DATED: 20/04/2023 undefined Sathnidar/original allottees were allowed to apply for taking the possession of the land allotted under the Sathni Scheme.
6.Respondent No.1 claiming to be legal heir of Late Mombhai Patabhai Bharvad (original Sathnidar/ original allottees) made an application dated 15.05.2018 before the Mamlatdar for getting his name mutated as possessor of the land in question and in view of allotment order dated 31.05.1971 and Government Resolution dated 19.02.2018 he became entitled to the possession of land in question.
7.The Mamlatdar, Rajkot vide letter dated 17.05.2018 directed the Circle Officer, Rajkot to hand over the possession of the land in question to the respondent No.1 and therefore, the Circle Officer-Rajkot vide letter dated 30.05.2018 prepared Rojkam and Page 4 of 14 Downloaded on : Sun Sep 17 18:41:27 IST 2023 NEUTRAL CITATION C/SCA/6702/2023 ORDER DATED: 20/04/2023 undefined in presence of the panch-witnessess, handed over the possession of the land in dispute to the respondent No.1 and accordingly, the Entry No.2779 was mutated in the Revenue Records on 06.07.2018.
8.Thereafter, on 06.09.2018, the respondent No.1 made an application to the Mamlatdar for converting the land in dispute from the new tenure land to old tenure land and the Mamlatdar, Rajkot vide order dated 05.10.2018 passed an order of converting the land in dispute from new tenure land to old tenure land.
9.It is the case of the petitioners that the respondent No.1 sold old tenure land to one Shri Vishalbhai Jayanti Monpara for the sale consideration of Rs.5,70,000/-. The respondent No.1 sold the two acres of land out of the total four acres of the land in Page 5 of 14 Downloaded on : Sun Sep 17 18:41:27 IST 2023 NEUTRAL CITATION C/SCA/6702/2023 ORDER DATED: 20/04/2023 undefined question vide registered document No.5110/2018 registered on 01.11.2018 and was mutated in revenue record for such sale on 02.11.2018.
10. It is the case of the petitioners that though original Sathnidar/original allottee namely late Mombhai Patabhai Bharvad father of the respondent no.1 was allotted the land in the year 1971, from the possession receipt/rojkam of 1971, it is clear that late Mombhai Patabhai Bharvad had not affixed any thumb impression or signature upon the possession receipt/ rojkam of 1971, accepting the possession of the land in dispute which clearly shows that late Mombhai Patabhai Bharvad had not taken the possession of the land in question.
11. It is the case of the petitioners that as soon as the land in dispute was allotted Page 6 of 14 Downloaded on : Sun Sep 17 18:41:27 IST 2023 NEUTRAL CITATION C/SCA/6702/2023 ORDER DATED: 20/04/2023 undefined to respondent No.1 on 30.06.2018, they got the land in question converted to the old tenure land from the new tenure land on 05.10.2018 and the respondent No.1 sold the two acres of land in question to Vishalbhai Jayanti Monpara for sale consideration of Rs.5,70,000/- on 01.11.2018.
12. It is the case of the petitioners that then the Mamlatdar in defiance of the allotment order dated 31.05.1971 mutated the Entry No. 2779 on 06.07.2018 completely against the provision of law. The Revenue Department, Government of Gujarat vide letter dated 19.12.2022 issued administrative orders to the Collectorate, Rajkot for initiating appropriate departmental inquiry against the Mamlatdar namely Mr. K.H. Khanpara.
13. It is the case of the petitioners that on finding that there may have been some Page 7 of 14 Downloaded on : Sun Sep 17 18:41:27 IST 2023 NEUTRAL CITATION C/SCA/6702/2023 ORDER DATED: 20/04/2023 undefined connivance of the Mamlatdar with the respondent No.1, the Collector, in exercise of powers under Article 211 of the Bombay Land Revenue Code, in suo motu review, quashed and set aside the order dated 05.10.2018 passed by Mamlatdar, Rajkot.
14. Being aggrieved and dissatisfied by the said order, the respondent No.1 challenged the same before the SSRD, whereby the SSRD vide order dated 08.09.2021 quashed and set aside the order dated 25.11.2019 passed by the Collector.
15. The petitioner has therefore preferred the present petition.
16. Learned Assistant Government Pleader Ms.Hetal Patel for the petitioners submitted that the Collector, Rajkot has cancelled the order dated 05.10.2018 converting the land in Page 8 of 14 Downloaded on : Sun Sep 17 18:41:27 IST 2023 NEUTRAL CITATION C/SCA/6702/2023 ORDER DATED: 20/04/2023 undefined question from new tenure land to old tenure land only on the basis of the Revenue Entry No.2779 mutated in the Revenue Records on the basis of the Circular dated 19.02.2018, letter dated 17.05.2018 and Panchrojkam dated 30th May, 2018 to mutate the names of the legal heirs of the late Mombhai Patabhai Bharvad to whom the land in question was allotted vide order dated 31.05.1971 passed by the Deputy Collector. It was submitted that the respondents were handed over the possession of the land on 30th May, 2018 and therefore, the Mamlatdar has committed an error by passing an order on 05.10.2018 to convert the land in question from new tenure land to old tenure land contrary to the Government Resolution that the land can be converted into old tenure land only on the basis if the person is having the possession of land for fifteen years.
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17. It was submitted that admittedly, the possession of the land in question was handed over to the respondents in the month of May, 2018 and therefore, the Collector has rightly cancelled the order dated 05.10.2018 converting the land in question from new tenure land to old tenure land. It was submitted that the SSRD has committed an error in relying upon the Panchrojkam dated 10.06.1971 and Entry No.156 in the Revenue Record to believe the possession of the respondents on the land in question since 1971. It was therefore submitted that even Panchrojkam dated 10.06.1971 does not disclose the thumb impression of late mombhai and therefore, it cannot be said that the possession was handed over to the ancestors of the respondents in the year 1971 and admittedly, as per the Revenue Records, the respondents have been given the possession of the land in question in the year 2018. Page 10 of 14 Downloaded on : Sun Sep 17 18:41:27 IST 2023
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18. It was therefore submitted that the impugned order passed by the SSRD is required to be quashed and set aside and the order dated 25.11.2019 passed by the Collector in Revision Application No.12 of 2019 is required to be restored cancelling the order dated 05.10.2018 passed by the Mamlatdar to convert the land in question from new tenure land to old tenure land.
19. Having heard the learned Assistant Government Pleader Ms.Hetal Patel for the petitioners, it appears that the respondent No.1 preferred an application on 15.05.2018 relying upon the Government Circular dated 19th February, 2018 stating that though the respondents are having the physical possession of the land in question, the names are not mutated in the Revenue Records and not reflected even in the Village Form No.7 Page 11 of 14 Downloaded on : Sun Sep 17 18:41:27 IST 2023 NEUTRAL CITATION C/SCA/6702/2023 ORDER DATED: 20/04/2023 undefined and 12.
20. It was therefore prayed that the benefit of the Circular dated 19.02.2018 of the Government be given to the respondents and accordingly, by letter dated 17.05.2018, the Mamlatdar directed the Circle Officer and Talati of Village:Lothda to hand over the possession of the land in question after drawing a Panchnama and accordingly, a Panchnama was drawn on 30th May, 2018 to hand over the possession of the land in question as to record the names of the respondents as legal heirs of Mombhai Bharvad in the Revenue Record and Entry No.2779 to that effect was mutated in the Revenue Records and was certified on 06.07.2018 by the competent authority.
21. Thus, it is apparent that by such procedures, the names of the respondents were Page 12 of 14 Downloaded on : Sun Sep 17 18:41:27 IST 2023 NEUTRAL CITATION C/SCA/6702/2023 ORDER DATED: 20/04/2023 undefined mutated in the Revenue Records and the fact remains that though the respondents were having the possession of the land and were cultivating the land in question, their names were not mutated in the Revenue Records and by the aforesaid procedure, their names were mutated in the Revenue Records and accordingly, the respondents applied for conversion of the land from new tenure land to old tenure land on the basis of having the possession since 1971.
22. Merely because the Revenue Entry No.2779 is mutated in the Revenue Records in the year 2018 on the basis of the Panchnama drawn on 30th May, 2018 so as to regularise the possession of the respondents on record, it cannot be said that the respondents were not having the possession of the land in question since 1971 which is recorded by the SSRD in the impugned order as a finding of fact. Page 13 of 14 Downloaded on : Sun Sep 17 18:41:27 IST 2023
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23. Therefore, no interference is required to be made in the impugned order passed by the SSRD whereby, the order dated 25.11.2019 passed by the Collector is quashed.
24. The petition therefore, being devoid of any merit is hereby dismissed in limine. No orders as to cost.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 14 of 14 Downloaded on : Sun Sep 17 18:41:27 IST 2023