Gujarat High Court
State Of Gujarat vs Kunjalbhai Lalitbhai Patel on 14 February, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1052 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 14410 of 2015
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 1052 of 2021
With
CIVIL APPLICATION (DIRECTION) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1052 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
sd/-
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
STATE OF GUJARAT
Versus
KUNJALBHAI LALITBHAI PATEL
==========================================================
Appearance:
MR. K.M. ANTANI, AGP for the Appellant(s) No. 1,2
MR SK PATEL(654) for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
Page 1 of 19
Downloaded on : Wed Feb 14 20:46:00 IST 2024
NEUTRAL CITATION
C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024
undefined
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 14/02/2024
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)
1. The instant Letters Patent Appeal is directed against the judgment and order dated 12.03.2020 passed by the learned Single Judge issuing directions to the Collector to consider the claim of the petitioner for regularisation of the sale transaction in favour of the petitioner in accordance with the provisions of the Government Resolution dated 17.03.2017 within a period of three months from the date of receipt of the copy of the order.
2. In the original writ petition, the petitioner sought relief in the nature of directions commanding the respondent No. 2 Collector to regularize the sale transaction in favour of the petitioner by determining the requisite premium of the land-in-question in accordance with law with the contention that the petitioner is ready and willing to pay the premium as may be calculated by the Collector. Page 2 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024
NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined While issuing the directions noted hereinabove, the learned Single Judge has allowed the writ petition by setting aside the orders passed by the Revenue Authorities in the proceedings of breach of conditions and resumption of the land-in-question.
3. Challenging the order passed by the learned Single Judge, it was vehemently argued by the learned Assistant Government Pleader Mr. K.M. Antani appearing for the State appellants that the learned Single Judge has erred in setting aside the orders passed in the proceedings conducted by the revenue authorities resulting into the resumption of the land-in-question, when those orders have not been challenged in the writ petition. Moreover, the petitioner had approached the Writ Court without adverting to the remedies available to him under the Revenue Laws, thus, bypassing the alternative statutory remedy available at the relevant point of time. The contention, thus, is that the writ petition deserves to be dismissed as non-maintainable on this ground only. Page 3 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024
NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined
4. Certain facts brought before us by the learned Assistant Government Pleader are relevant to be noted hereunder : -
4.1 At the outset, it may be noted that the dispute pertains to the Survey No. 1717, block no. 1155 of Village Bhayali, Vadodara, which was purchased by the original petitioner vide sale deed dated 07.03.2008. Indisputably at the time of execution of the said sale deed, entry in the revenue records of the land-in-question was of "old tenure land". There is no absolutely dispute about the mutation entry of the land-in-question being of "old tenure" in the village Form No. 7/12 as on 07.03.2008, the date of execution of the sale deed.
4.2 The respondent in their affidavit-in-reply (in paragraph '8'), have stated that the land-in-question was not "old tenure" but it was "new and restricted tenure land" and in the year 2008 by mistake, the aforesaid land was shown as "old tenure" in the revenue records of village form No. 7/12, though infact it was a "new and restricted tenure land" from the beginning, i.e. from 1951. Page 4 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024
NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined The mistake had occurred during the computerization of the revenue records and the land-in-question was shown as "old tenure land".
4.3 It may further be noted that a mutation entry No.12016 dated 30.03.2010 was made of the sale deed dated 07.03.2008. It seems that at the time of certifying the said entry, mistake about the entry of the nature of the land-in-question was detected and by order dated 04.06.2010, the Circle Officer, Vadodara had cancelled the kachcha entry No. 12016 dated 30.03.2010 in the name of petitioner on the ground that the sale had taken place without prior approval of the revenue authorities. The RTS Appeal No. 16/11 filed by the petitioner before the Deputy Collector, Vadodara (Rural) against the order dated 04.06.2010 of the Circle Officer cancelling the mutation entry No. 12016 in favour of the petitioner, came to be rejected vide order dated 30.03.2013. The RTS Revision No. 75/13 filed before the Collector also came to be rejected vide order dated 25.06.2015. Page 5 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024
NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined 4.4 In the meantime, the Deputy Collector, Vadodara (Rural) initiated separate proceedings for Sharat Bhang with the issuance of notice dated 10.05.2013 and the order dated 25.05.2015 has been passed by the Deputy Collector in Sharat Bhang Case No. 9 of 2013 to the effect that the purchase of the land-in-question by the petitioner was without prior sanction of the competent authority and, therefore, the order for vesting of the land-in-question with the State Government and under Section 79A of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as 'the Code, 1879', for short) has been passed for summary eviction of the petitioner from the land-in- question. We may note that the petitioner did not challenge the order passed by the Deputy Collector dated 25.05.2015 for summary eviction of the petitioner by vesting of the land-in-question at the relevant point of time and straightway approached this Court by filing the original writ petition in the month of August, 2015 with the following reliefs : -
"16(B) Be pleased to issue an appropriate writ, order Page 6 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024 NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined or direction, directing the respondent no. 2 to regularize sale transaction in favour of the petitioner by determining the requisite premium of land in accordance with law as the petitioner is willing to pay premium for their land Survey No. 1717, block no. 1155 of Village Bhayali, Vadodara;
(C) Pending admission and till final disposal of the present petition grant stay as to RTS proceeding and Saratbhang proceedings in respect of land of the petitioner bearing Survey No. 1717, block no. 1155 of Village Bhayali, Vadodara on the basis of registered sale deed dated 07.03.2008 in favour of the petitioner."
5. The basis of the said prayers made by the petitioner in the original writ petition was the Government Resolution dated 16.03.1982 and other similar guidelines issued by the State Government for fixing premium by the Collector to regularize unauthorized occupation of the purchasers. It is stated in the writ petition that considering the possession of the original owner of the land-in-question namely Dahyabhai Chaturbhai Harijan being more than 15 years on the date of execution of the sale deed, the case of the petitioner was required to be considered for payment of premium. An offer was given by the petitioner in the writ petition itself that he was ready and willing to pay premium as may be fixed by the State Government in Page 7 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024 NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined accordance with its policy.
6. An affidavit-in-reply on behalf of the State respondents was filed in the month of March, 2017, sworn-in on 14.03.2017, contesting the writ petition on the ground of availability of alternative remedy to challenge the order passed against the petitioner dated 25.06.2015 in the matter of cancellation of mutation entry and the order dated 25.05.2015 under Section 79A of the Code, 1879, for summary eviction of the petitioner, before appropriate statutory Forum. The contention therein was that the writ petition was required to be dismissed as alternative remedy was available to the petitioner for challenging both the orders before the appropriate Forum.
7. It would be pertinent to note, at this juncture, in the original writ petition that the petitioner had given a correct disclosure of the proceedings drawn against him and there is no concealment of any material facts. At the cost of repetition, it may be noted here that in the affidavit-in-reply, it was admitted that at the time of Page 8 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024 NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined execution of the sale deed dated 07.03.2008, the land-in- question was shown as "old tenure land" in village form No. 7/12.
8. During the pendency of the writ petition, a Government Resolution dated 17.03.2017 came to be issued by the Revenue Department, Government of Gujarat, in the matter of grant of permission for change of "old tenure land" in case of bona fide purchase from agriculture to agriculture or non-agriculture purposes, after receipt of premium for the land. The said Government order was pressed into service by the petitioner by bringing the same on record by way of rejoinder filed by him. Instances of the decision for regularization of the adjoining land in Block No. 1154 was given by bringing on record the order dated 15.07.2017 of the Collector, whereby the order of regularization of the sale deed dated 10.03.2008 was passed, while setting aside the order passed by the Deputy Collector, Vadodara on the condition to apply the Collector within a period of 60 days for conversion of the said land on payment of premium. It was reiterated that the Page 9 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024 NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined petitioner was ready and willing to pay premium for the land-in-question and the transaction dated 07.03.2008 in favour of the petitioner be regularized by determining the requisite premium of the land-in-question in accordance with law.
9. We may note that the learned Single Judge has categorically recorded that it was an admitted position that at the relevant time, Block No. 1155 of Village Bhayali was shown as a "old tenure" in the revenue records and the fact that the land-in-question was not of "old tenure", but was of "new tenure" came to light much later at the time of certifying the entry No. 12016 dated 30.03.2010 resulted in passing of the order dated 04.06.2010. It is also undisputed that Sharat Bhang proceedings with the show cause notice dated 10.05.2013 were initiated on the ground that the purchase of the land-in-question by the petitioner was without prior sanction of the competent authority and, hence, the petitioner was liable to be summarily evicted, being in unauthorized occupation / wrongful possession of the land-in-question. Page 10 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024
NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined
10. It is argued by the learned AGP appearing for the State appellants that the land-in-question is a "new impartible tenure", a category of "Chakariyat allotment"
and was covered by Section 62 of the Code, 1879. It was submitted that the land of the said category could have been occupied subject to payment of the price for unalienated land, which may be subject to the conditions fixed by the Collector in the letter of grant. The contention is that very limited rights have been conferred upon the person occupying the land-in-question in favour of whom the grant was given by the Collector. The alienation of such category of land, which was "new and impartible tenure", was not at all permissible.
11. To deal with the above submissions, we may note that a perusal of the order dated 25.05.2015 passed by the Deputy Collector under Section 79A of the Code, 1879, indicates that the reasons given therein for summary eviction of the petitioner from the land-in-question was that the heirs of the original grantee had sold the land-in- question which was "new and indivisible tenure land" Page 11 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024
NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined without prior permission of the competent officer by way of a registered sale deed dated 07.03.2008. The mutation entry No. 12016 with regard to the aforesaid sale deed had been cancelled as there was no proof regarding prior permission. It was noted that on perusal of the original record of the land-in-question, it was found to be "new and indivisible tenure type" and the sale transaction was in breach of condition, having been executed without prior permission of the competent authority. It was, thus, noted that after giving due opportunity of hearing to the petitioner namely the purchaser as also the seller, the original owner, the land-in-question was admitted in the government records free from all encumbrances, in exercise of power under Section 79A of the Code, 1879. It was noted therein as well that upon revenue entry no. 11365 dated 04.08.2008, by virtue of promulgation order, "old tenure type" was deleted and the land-in-question was entered into government Chakariyat transfer and hence, there appears to be restrictions of "new and indivisible type tenure" without obtaining prior permission of the Page 12 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024 NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined competent authority. It was noted in the order dated 25.05.2015 under Section 79A that the seller of the land- in-question namely the original owner did not come forward and the petitioner herein namely the purchaser in reply to the notice issued under Section 79A of the Code, 1879 had pleaded that he was bona fide purchaser of the land-in-question.
12. The order dated 25.05.2015 also records that the land-in-question has been shown in the land revenue records as "old tenure type". It also records that the purchasers shown their readiness and willingness to pay the premium of the land-in-question as per jantri rates and requested to accept the premium, if payable, as per the rules for conversion of land from "new tenure type" to "old tenure" and to regularize the sale transaction.
13. The order of the Deputy Collector dated 25.05.2015 passed in the summary proceedings of eviction of the petitioner on the premise of being unauthorized occupant of the land-in-question referring to the revenue entries of Page 13 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024 NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined the land-in-question being "government chakariyat" and "new and indivisible tenure land" has proceeded to record that the sale transaction was in breach of condition of the prior permission of the competent authority. No consideration at all has been given to the prayer of the purchaser - original petitioner herein that he was ready and willing to pay the premium of the land-in-question for its conversion from "new tenure type" to "old tenure" as per the jantri rates / rules for conversion, and he was a bona fide purchaser.
14. It seems that for this reason, the original petitioner instead of approaching the revenue authorities to challenge the order passed by the Collector had proceeded to file the writ petition with the above-noted reliefs. It also pertinent to note that during pendency of the writ petition, the petitioner had filed an appeal against before the Collector against the order dated 25.05.2015 passed by the Deputy Collector Vadodara (Rural) in Sharat Bhang Case No. 9/13 which had been dismissed vide order dated 29.11.2019 on the ground of being preferred after expiry Page 14 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024 NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined of three years and five months from the date 25.05.2015, of the order of the Deputy Collector.
15. The fact remains that prayer of the original petitioner for conversion of the land-in-question from "new tenure" to "old tenure" by payment of premium being a bona fide purchaser has not been considered at any stage of the proceedings conducted by the respondents.
16. It is not case of the respondents that the original petitioner had any opportunity to know the correct status of the land-in-question at the time of execution of the sale deed dated 07.03.2008 in his name. Mutation entry of the land-in-question of being of "old tenure" at the time of execution of the sale deed in favour of the petitioner, there was no occasion for the petitioner to know the correct nature of the land-in-question. The sellers / original owners did not come forward before the Collector in the proceedings under Section 79A of the Code, 1879 for summary eviction of the occupant.
Page 15 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024
NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined
17. It cannot be disputed before us by the learned AGP that the petitioner herein would fall in the category of bona fide purchaser. Only submissions made before us was that the land-in-question being "new and impartible tenure of chakariyat allotment", could not have been transferred at all. The reference was given to Section 62 of the Code, 1879 to assert that the land-in-question was inalienable land. We do not find any substance in the submissions of the learned Assistant Government Pleader that the land-in- question could not be alienated by the allottee or his heirs at all, having noted the contents of the order dated 25.05.2015 passed by the Deputy Collector, Vadodara (Rural) in the proceedings under Section 79A of the Code, 1879. As per the said order, the land-in-question was vested with the State Government for the reason that the sale transaction was made without prior permission of the Competent Authority.
18. In the said scenario, we may further record that after the order passed by the Deputy Collector for eviction of the petitioner from the land-in-question, vide Government Page 16 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024 NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined Resolution dated 17.03.2017, the State Government itself came out to the rescue of the bona fide purchaser in cases where revenue records reflected the land subject matter of sale to be "old tenure" land. The learned Single Judge, therefore, cannot be said to have erred in noticing the relevant clauses of the Government Resolution dated 17.03.2017 for holding that the instant case falls within the purview of the said government order and the instances as provided therein in relevant clauses extracted in the judgment impugned, pertain to the specific instances mentioned herein. No error could be found in the opinion drawn by the learned Single Judge that unless the order passed in the proceedings under Section 79A of the Code, 1879 for vesting / resumption of the land-in- question for breach of condition of prior approval are set aside, benefit of the government order cannot be given to the petitioner.
19. The fact remains that the land-in-question remains in possession of the petitioner throughout from the date of the execution of the sale deed dated 07.03.2008 and the Page 17 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024 NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined order dated 25.05.2015 of resumption of land-in-question and eviction of the petitioner has not been given effect to. In the meantime, the government order dated 17.03.2017 came to be issued which provides for the benefits to the bona fide purchasers like the petitioner herein.
20. As noted above, the prayer made by the petitioner before the Deputy Collector in Sharat Bhang Case No. 9 of 2013 to regularize the sale transaction as per the then existing rules / policy has not been adverted to.
21. We, therefore, do not find any error in the order passed by the learned Single Judge, however, the operative portion of the judgment and order dated 12.03.2020 passed by the learned Single Judge is modified to the extent that on an application filed by the original petitioner along with the copy of this order, the Collector, Vadodara shall be required to consider the case of the petitioner for grant of benefit of the Government Resolution dated 17.03.2017, considering that the petitioner had prayed from the beginning that he was Page 18 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024 NEUTRAL CITATION C/LPA/1052/2021 CAV JUDGMENT DATED: 14/02/2024 undefined ready and willing to pay the premium as per the rules for regularization of the sale transaction. The question as to whether the claim of the petitioner is covered by the Government Resolution dated 17.03.2017, shall be determined by the Collector by passing a reasoned and speaking order in accordance with law within a period of three months from the date of receipt of copy of this order giving due consideration to the observations made hereinabove.
22. Subject to above, the present Letters Patent Appeal stands disposed of. All pending Civil Application(s) shall also stand disposed of.
(SUNITA AGARWAL, CJ ) (ANIRUDDHA P. MAYEE, J.) AMAR SINGH Page 19 of 19 Downloaded on : Wed Feb 14 20:46:00 IST 2024