Chavda Pravinkumar Kachrabhai & 2 vs State Of Gujarat & 4 on 26 April, 2017

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Gujarat High Court

Chavda Pravinkumar Kachrabhai & 2 vs State Of Gujarat & 4 on 26 April, 2017

Bench: K.M.Thaker

                 C/SCA/24693/2005                                              ORDER



                 IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    SPECIAL CIVIL APPLICATION NO. 24693 of 2005
                                              TO
                    SPECIAL CIVIL APPLICATION NO. 24713 of 2005
         ==========================================================
                CHAVDA PRAVINKUMAR KACHRABHAI & 20....Petitioner(s)
                                       Versus
                       STATE OF GUJARAT & 4....Respondent(s)
         ==========================================================
         Appearance:
         MR PM BHATT, ADVOCATE for the Petitioner(s) No. 1
         MR RISHIT P BHATT, ADVOCATE for the Petitioner(s) No. 1
         MR RAKESH PATEL, AGP for the Respondent(s) No. 1 - 5
         ==========================================================

          CORAM: HONOURABLE MR.JUSTICE K.M.THAKER

                                      Date : 26/04/2017


                                    COMMON ORAL ORDER

1. Heard Mr.Bhatt, learned advocate for the petitioner and Mr.Patel, learned AGP.

2. Learned advocate for the petitioners and learned AGP for the respondents also submitted that the petitions are similar and identical and all petitioners in respect of captioned petitions have approached this Court with similar grievance and for identical relief. In view of the said submission and statement by learned advocate for Page 1 of 15 HC-NIC Page 1 of 15 Created On Wed Aug 16 06:48:00 IST 2017 C/SCA/24693/2005 ORDER the petitioner and learned AGP for the respondents, the petitions are heard and decided by this common judgment.

3. Learned advocate for the petitioners and the learned AGP further submitted that since these petitions are similar and identical to Special Civil Application Nos.24631/2005 to 24642/2005 (which are decided by common judgment dated 26.4.2017) present petitions may also be disposed of in terms of in terms of the same judgment.

4. It is clarified by learned advocate for the petitioner and learned AGP that the only difference between present group of petitions and said other group of petitions is with regard to survey numbers of the parcels of land which came to be allotted to the petitioner inasmuch as in this group of petitions, survey numbers of the land allotted to the petitioner is 282/1, whereas in the said other group of petitions, i.e. Special Civil Application Nos.24631/2005 to Page 2 of 15 HC-NIC Page 2 of 15 Created On Wed Aug 16 06:48:00 IST 2017 C/SCA/24693/2005 ORDER 24642/2005, the land in question is land bearing Survey No.333/1.

5. On examination of record, it has emerged that in the said other group of petitions, i.e. Special Civil Application Nos.24631/2005 to 24642/2005, the petitioners have prayed, inter alia, that:

"26(B) This Hon'ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, in the nature of mandamus, quashing and setting aside the entry No.3247, AnnexureI to this petition, mutated in record of rights, i.e. village form no.6 on 12.05.1999 and certified on 24.09.1999, in so far as it concerns subentry at Sr.No.8 against the name of Jiva Madha, concerning revenue survey No.333/1 paiki reconstituted as F.P. No.85, T.P. Scheme No.1 - Ranip admeasuring 875 sq.mtrs. And be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, in the nature of mandamus, to quash and set aside said particular entry in so far as it concerns land in question, with further writ of mandamus or any other appropriate writ, direction or order in the nature of mandamus to cancel said entry and to make appropriate rectification in Form No.6 in entry No.3247.

(C) This Hon'ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, in the nature of mandamus, declaring the action of the respondents herein in not granting application dated 08.03.2000, 15.12.2004 and 28.11.2005 as being exfacie illegal, unlawful, arbitrary and violative of Article 14 of the Constitution of India, in so far as consequently amendments / rectifications have not been made in the revenue record;

(D) This Hon'ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, in the nature of mandamus, commanding the respondents, more particularly respondents No.2 and 3 herein to rectify village Form No.7/12 in so far as it concerns land of survey No.333/1, F.P. No.85 and T.P. Scheme No.1 -

Ranip, so as to show name of the petitioners in entry No.3018 in the first column of occupier i.e. possessor instead of being shown in the second column meant for other rights, and be further pleased to direct the respondents to Page 3 of 15 HC-NIC Page 3 of 15 Created On Wed Aug 16 06:48:00 IST 2017 C/SCA/24693/2005 ORDER make necessary rectification and/or correction in the revenue record;

(E) This Hon'ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction, in the nature of mandamus, commanding the respondents, more particular respondent nos.2 and 3 to make appropriate rectification and/or correction int eh revenue records so as to reflect the names of the petitioners as owners, occupiers and possessors of the land in question and to reflect mutation entry No.3018 in the revenue records;"

6. Whereas in present group of petitions, the petitioners have prayed, inter alia, that:

"28[B] This Hon'ble Court may be pleased to issue a writ of mandamus and or any other appropriate writ, order or direction, [i] directing the respondents herein, more particularly respondent no.5 herein to make necessary rectification in the revenue record - village form No.7/12 so as to give effect to mutate entry No.3051;

[ii] direct the respondent no.5 herein to remove names of 18 persons from the column of secondary rights of village form No.7/12;

[iii] direct the respondents, more particularly respondents no.5, 4 and 3 respectively to give effect to the orders dated 15.04.1995 of allotment of land to the petitioners, in the revenue record, more particularly village form No.7/12 in favour of the petitioners, so as to reflect the names of the petitioners in the first column of village form No.7/12 meant for owner, occupier and in possession by requiring the names of the petitioners to be reflected therein instead of names being reflected in the column meant for secondary / other rights;

[iv] to effect necessary rectification in village form No.7/12;"

6.1 Apart from the the reliefs which are prayed for by virtue of paragraph No.28(B) of this petition, the petitioners have also prayed that:

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HC-NIC Page 4 of 15 Created On Wed Aug 16 06:48:00 IST 2017 C/SCA/24693/2005 ORDER "[A] To direct the respondents herein, more particularly respondents No.3, 4 and 5 to act on the orders of allotment of land in favour of the petitioners dated 15.04.1994 made under the provisions of the Urban Land [Ceiling and Regulations] Act, 1976, in the matter of allotment of land of Final Plot [F.P.] No.91 of Town Planning Scheme [T.P. Scheme] No.3, reconstituted out of revenue survey No.282/1, admeasuring 1481 sq.mtrs. Which allotment has been made pursuant to the recommendations and decision of the Ahmedabad District Committee constituted under Section 23 of the Urban Land [Ceiling and Regulation] Act, 1976 [hereinafter referred to as "the Ceiling Act" for short] under the Chairmanship of the then Collector, Ahmedabad, as decided in its meeting held on 24.03.1995, as per resolution No.4;

[B] To direct the respondent No.3 herein to mutate consequent entry in record of rights - village form No.6 with respect to F.P. No.91, T.P. Scheme No.3 reconstituted out of revenue survey No.282/1 admeasuring 1481 sq.mtrs. To mutate the ownership and possession of the petitioners consequent upon order dated 15.04.1995;

[C] To direct the respondents to delete the names of 18 persons recorded in the revenue record, more particularly in village form No.7/12 which allotment stands cancelled in view of decision taken vide item No.4 in the meeting held on 24.03.1995 of the District Committee constituted under Section 23 of the Ceiling Act and in view of the orders of allotment dated 15.04.1995.

[D] To make consequential rectification in the revenue record including village form No.7/12 and village form No.6 in so far as it concerns land of F.P. No.91, T.P. Scheme No.3 reconstituted out of revenue survey No.282/1 admeasuring 1481 sq.mtrs."

6.2 A glance at the relief prayed for in the petition, brings out that without following procedure prescribed for mutation of entry in the revenue records and/or for cancellation of any entry in revenue record and/or for any correction / alteration / modification of entry in the revenue records, the petitioners have taken out present petition and the petitioners seek Page 5 of 15 HC-NIC Page 5 of 15 Created On Wed Aug 16 06:48:00 IST 2017 C/SCA/24693/2005 ORDER direction from the Court that the concerned authority should mutate entry in the revenue records as desired by the petitioners. 6.3 Unless and until the procedure prescribed by law for mutation of entry in revenue record and/or for any correction / alteration / modification of entry in the revenue records is followed and complied, any correction / alteration / modification of entry in the revenue records cannot be made and the Court would not grant such direction to any authority, more particular when it is noticed that requisite and prescribed procedure is not followed.

6.4 Therefore, as such, the reliefs prayed for by the petitioners do not deserve to be granted.

6.5 However, in light of the submissions by learned advocate for the petitioners, it appears that it would not be out of place to take into Page 6 of 15 HC-NIC Page 6 of 15 Created On Wed Aug 16 06:48:00 IST 2017 C/SCA/24693/2005 ORDER account some of the facts which are narrated by the petitioners in the memo of petition.

7. So as to support and justify the reliefs prayed for in this petition, the petitioners have averred and stated that:

"3. The above mentioned reliefs are prayed by the petitioners in the context of the following facts which are set out in brief as under:

4. The petitioners submit that there was a land bearing original revenue survey No.282/1 situated at Mouje Ranip, Tal. City, Dist. Ahmedabad. The said land originally belonged to one Somchand Bhavsar. The said land was subjected to the provisions of the Ceiling Act in view of the Form filled in under Section 6[1] of the Ceiling Act by said person.

5. That the said lands were declared as excess vacant land under the provisions of the Ceiling Act and the said order became final and the said land was vested in the State Government free from all encumbrances. The possession of the land was taken over by the State Government in accordance with the provisions of Section 10[5] and 10[6] of the Ceiling Act.

6. That it appears that 18 persons who are named herein under had applied for grant of land under Section 23 of the Ceiling Act and it appears that the Competent Authority and Additional Collector, ULC - respondent no.2 passed order dated 28.06.1993, granting 18 plots of land to the below named persons vide different orders all of 28.06.1993.

1. Kothari Bhaveshkumar Kantilal.

2. Bhimani Prakashbhai Mohanbhai.

3. Trivedi Nalinkumar M.

4. Darji Hasmukhbhai Govindbhai.

5. Thakore Mahendrakumar Maganlal.

6. Shah Hareshkumar Madhusudan.

7. Patel Dineshkumar Atmaram.

8. Trivedi Pradipbhai Maheshbhai.

9. Patel Kiritbhai Chaturbhai.

10. Trivedi Arunkumar Devshanker.

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11. Thakar Indravadan Chunilal.

12. Patel Nathabhai Atmaram.

13. Patel Chhanabhai Kantilal.

14. Patel Govindbhai Hargovindbhai.

15. Patel Mafatbhai Ganeshbhai.

16. Modi Laxmichand Tulsidas.

17. Mehta Bharatkumar Kantilal.

18. Patel Dhanjibhai Khemchand.

However, it appears that despite the orders having been passed, the said 18 persons were not put in possession of the said land consequent upon such orders of allotment having been made. Despite the fact that said persons were not put into possession, it appears that on 14.08.1993, a mutation entry No.2960 came to be mutated in revenue record of rights - village form No.6 certified on 14.10.1993, notifying that pursuant to all diverse orders dated 28.06.1993 under Section 23 of the Ceiling Act, allotment was made to the above said 18 persons.

7. The petitioners submit that petitioners' application with respect to the said land was also pending and same came up for consideration in the District Committee appointed under the provisions of Section 23 of the Ceiling Act, which meeting was held under the Chairmanship of the then Collector. Said meeting was held on 24.03.1995 and one of the agenda items at item no.4 was reconsideration of the allotment made to the above said 18 persons of land of F.P. No.91, T.P. Scheme No.3 reconstituted out of revenue survey No.282/1 admeasuring 1481 sq.mtrs. [hereinafter referred to as "the said land" for short] and while considering said agenda item No.4 in the meeting held on 24.03.1995, vide resolution No.4 it was decided that in place of the earlier allotment of the said land to 18 persons, land in question be allotted once again to 24 persons belonging to Scheduled Caste persons in view of the planning made by the Town Planner, Ahmedabad, and it was decided to allot said land to 21 persons, petitioners herein, belonging to Scheduled Caste instead of earlier 18 persons.

8. That consequent upon said decision, the Competent Authority and Additional Collector, ULC, Ahmedabad, informed the Revenue Department vide its communication / letter dated 28/09.1995 that earlier 13 persons out of 18 persons, who were allotted the land in question had given consent for grant of the land which was free from disputes and two applicants had vide their applications dated 01.09.1993 and 03.09.1993 wanted to be allotted land at some other place and since 15 out of 18 applicants - beneficiaries wanted to give at some other place instead of present property Page 8 of 15 HC-NIC Page 8 of 15 Created On Wed Aug 16 06:48:00 IST 2017 C/SCA/24693/2005 ORDER which was disputed, on receipt of the report, the same was forwarded. It was further found that three of the earlier 18 allotted, namely [i] Trivedi Arunbhai Devshanker; [ii] Nalinbhai Trivedi and [iii] Govindbhai Hargovinddas Patel were liable to have allotment made to them cancelled on the ground that their annual income was more than prescribed limit and a detailed report was also sent and, therefore, in view of the letter of the Revenue Department dated 05.04.1995, directing Competent Authority and Additional Collector, ULC to allot land to the members of the Scheduled Caste in accordance with serial number / waiting list and allotments were made by orders dated 15.04.1995 in favour of the petitioner, and by the said letter dated 24.04.1995, the Revenue Department was also informed that the said 18 persons who were allotted very land in question were required to be allotted land at some other place.

9. That as stated hereinabove, consequent upon resolution - AnnexureB dated 24.03.1995 and as referred to in the communication - AnnexureC dated 24.04.1995, the petitioners were allotted land in question forming part of F.P. No.91, T.P. Scheme No.3 reconstituted out of revenue survey No.282/1 admeasuring 1481 sq.mtrs. under orders of the revenue department, State of Gujarat dated 15.04.1995.

10. That pursuant to the said order, the petitioners were put into possession. That consequent upon orders of allotment dated 15.04.1995, the names of the petitioners herein have been mutated under Mutation Entry No.3051 dated 02.05.1995 certified on 14.06.1995.

11. The petitioners submit that the petitioners have been put into possession of the lands in question consequent upon orders having been passed.

12. That the petitioners submit that the petitioners were also required to execute necessary agreement before the Competent Authority, namely Mamlatdar, Urban Land Ceiling, Ahmedabad. The petitioners have executed such agreement agreeing to the conditions laid down therein.

13. The petitioners submit that layout of the aforesaid allotment of land was also finalised. However, in view of the provisions of the Town Planning Scheme it was found that there was only land which was enough for allotment to 21 persons - the petitioners herein in place of 24 persons, since common plot was required to be kept. Under the circumstances, a lay out was sanctioned having only 21 plots.

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14. The petitioners submit that it will be relevant to point out that one Haridarshan Cooperative Housing Society Ltd., claiming right, title and interest in the land in question on the basis of the agreement of sale purported to have been entered into by the original land owners, have filed Civil Suit No.21 of 1980 in the Court of the learned Civil Judge, S.D., Ahmedabad Rural at Narol and on disposal of the suit, rejecting suit, to the best of the knowledge of the petitioner, said Haridarshan Cooperative Society Ltd. filed First Appeal No.1775/82 along with application for stay being Civil Application No.4713/82 before the Hon'ble High Court of Gujarat wherein an order dated 11.07.1984 has been passed, confirming the adinterim relief whereby original owners are restrained from selling, mortgaging, transferring, alienating, assigning in any manner the land in question along with other lands referred to in the said order and from raising construction on the land in question as well as other lands.

15. The petitioners submit that in view of the aforesaid dispute and the stay order, the petitioners could not raise construction and, therefore, petitioners had made an application on 27.08.1996 to the Competent Authority and Urban Land Ceiling Act, Ahmedabad, showing their incapability of raising construction within the time limit and with a request them to grant relaxation in the time limit.

16. The petitioners submit that in the year 1996 it came to the knowledge of the petitioners that despite the fact that the allotment made to 18 persons earlier by the order dated 28.06.1993 was cancelled and in view of the fact that fresh allotment was ordered in favour of the petitioners, an application was made on 27.08.1996 to the TalaticumMantri, pointing out that in vie wof the fact that allotment made to the earlier 18 persons was cancelled and in view of the fresh order of allotment made to 21 persons - the petitoners herein, by order of allotment dated 15.04.1995 and since mutation has been made in favour of the petitioners, necessary steps be taken for rectification of village form No.7/12, which still continue to show names of said 18 persons in the column of other rights. A request was also made that the names of the petitioners which were shown in the names of other rights be put in the first column of village form no.7/12 as owner and occupier of the land.

17. That no action pursuant thereto was taken. The petitioners, therefore, made reminder application dated

08.03.2000."

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8. During hearing of this group of petitions, learned advocate for the petitioners reiterated and stated that only difference between the group of these petitions and other group of petitions comprising Special Civil Application Nos.24631/2005 to 24642/2005 is with reference to survey number of the land in question. Otherwise in all respect, two group of petitions and the grievance of the petitioners are similar and common.

8.1 Learned advocate for the petitioners submitted that the petitioners of present group of petitions have also submitted the application / representation dated 27.8.1996 to TalaticumMantri.

8.2 He submitted copy of the said application addressed to the TalaticumMantri is on record at pages 212 and 213.

8.3 He further submitted that the petitioners also forwarded reminder to the Page 11 of 15 HC-NIC Page 11 of 15 Created On Wed Aug 16 06:48:00 IST 2017 C/SCA/24693/2005 ORDER TalaticumMantri on 8.3.2000 (copy whereof is available on record of these petitions at page

214).

8.4 According to the petitioners, another application / representation was submitted to the TalaticumMantri on 28.11.2005. 8.5 According to learned advocate for the petitioners, the said applications / representations have remained unattended and until now any action with regard to the same has not been taken.

9. During hearing of this group of petitions, learned advocate for the petitioners submitted that since the facts and circumstances involved in present petitions are similar to the facts involved in Special Civil Application Nos.24631/2005 to 24642/2005 and in present group of petitions also the petitioners have submitted applications / representations which are not decided by the authority, similar directions to Page 12 of 15 HC-NIC Page 12 of 15 Created On Wed Aug 16 06:48:00 IST 2017 C/SCA/24693/2005 ORDER the respondents may be granted in respect of these petitions as well.

9.1 Learned advocate for the petitioners also submitted that the cause of the petitioners would be satisfied if the directions similar to the directions passed in Special Civil Application Nos.24631/2005 to 24642/2005 are passed, in this group of petitions as well.

10. In the light of the said submissions by learned advocate for the petitioners, following order is passed.

11. In this background and having regard to the assertions by learned advocate for the petitioners that the petitioners have submitted application to the Talati, it appears that present petitions can be disposed of with following observations and directions.

12. Having regard to the fact that the petitioners have submitted application which, according to the submission by learned advocate Page 13 of 15 HC-NIC Page 13 of 15 Created On Wed Aug 16 06:48:00 IST 2017 C/SCA/24693/2005 ORDER for the petitioners, has not been attended to and has not been processed, it appears that the petitions deserve to be disposed of with the direction that the concerned and competent authority will take up the said application for consideration and after taking into account the request made in the application and after considering applicable policy as well as any subsequent events which may have taken place after allotment of land to the petitioners and/or after above mentioned application, the competent authority will pass appropriate order in accordance with law and relevant - applicable provisions.

13. It is clarified that the competent authority will take necessary decision and pass appropriate order in respect of the said application filed by the petitioners as expeditiously as possible and preferably within six weeks from the receipt of the certified copy of this common judgment.

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14. For the said purpose, the petitioners are permitted to serve certified copy of this common judgment to the concerned authority directly.

15. In light of submissions and request by learned advocate for the petitioners, present petitions stand decided and disposed of in terms of the common judgment dated 26.4.2017 in group of petitions, i.e. Special Civil Application Nos.24631/2005 to 24642/2005. The same observations and the directions shall be applicable to present petitions as well.

(K.M.THAKER, J.) Bharat Page 15 of 15 HC-NIC Page 15 of 15 Created On Wed Aug 16 06:48:00 IST 2017

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