Gujarat High Court
State Of Gujarat vs Vinod Realities Pvt Ltd on 19 December, 2018
Author: Biren Vaishnav
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/1542/2018 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1542 of 2018
In SPECIAL CIVIL APPLICATION NO. 5398 of 2003
With
CIVIL APPLICATION NO. 1 of 2018
With
CIVIL APPLICATION NO. 2 of 2018
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STATE OF GUJARAT
Versus
VINOD REALITIES PVT LTD
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Appearance:
MS NISHA THAKORE, ASST GOVERNMENT PLEADER(1) for the
PETITIONER(s) No. 1,2,3,4,5
MR AS ASTHAVADI(3698) for the RESPONDENT(s) No. 1
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV
Date : 19/12/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE BIREN VAISHNAV) ORDER IN CIVIL APPLICATION NO. 1 OF 2018
1. This application has been filed by the applicant - State of Gujarat praying for condonation of delay of 345 days that has occurred in filing the Letters Patent Appeal challenging the oral judgement dated 24.07.2017 passed in Special Civil Application No. 5398 of 2003.
2. The applicant has made out grounds as averred in Page 1 of 10 C/LPA/1542/2018 ORDER paragraphs no. 2 to 9, to suggest that there exists a "sufficient cause" to condone the delay of 345 days that has occurred in challenging the judgement by way of the Letters Patent Appeal.
3. Mr. A.S. Asthavadi, learned advocate appearing for the respondents - original petitioners has opposed the prayers made in the application seeking condonation of delay. According to him, the explanation rendered that the delay has been caused on account of administrative process is unjustified. He submitted that though the impugned judgement is dated 24.07.2017, certified copies were applied for after one year on 20.07.2018, which itself suggests clear laxity on the part of the State.
4. Having considered the averments made in the application and the submissions of learned Assistant Government Pleader as well as learned advocate for the respondents, we are of the view that the State has sufficiently explained the reasons for filing the appeal beyond the prescribed period of limitation. Based on these facts, we are inclined to and accordingly condone the delay that has occurred in filing the appeal. Accordingly, application is allowed. No costs.
ORDER IN LETTERS PATENT APPEAL WITH CIVIL APPLICATION FOR STAY
1. Under challenge, in this Letters Patent Appeal filed under Clause 15 of the Letters Patent, is the oral judgement dated 24.07.2017 passed by the learned Single Judge in Page 2 of 10 C/LPA/1542/2018 ORDER Special Civil Application No. 5398 of 2003, whereby, considering the facts on hand and the issue as to whether to consider the lands in question as new tenure land or accept the contentions of the petitioners and consider such lands as old tenure, was answered in favour of the original petitioners
- present respondents. The learned Single Judge, from the facts emerging from the record, was satisfied that the lands were covered under the settlement scheme under the Huzur's Order dated 03.02.1948 and by necessary implication came to be treated as old tenure lands and are therefore now required to be treated as "old tenure" lands.
1.1 While allowing the petitions, the learned Single Judge issued certain directions in paragraph no. 28, which reads as under:
"28. In view of the aforesaid discussion, all these petitions are allowed. The impugned communications in all these petitions are quashed and set aside. It is held that the lands which are covered under the Huzurs order dated 03.02.1948 are old tenure lands. Therefore, it will be now for the State to undertake an exercise to trace out the origin of the lands in question, which are subject matter of the present petitions so that the tenure of the lands can be ascertained from its inception. The necessary consequences should follow thereafter. Rule is made absolute to the aforesaid extent. No order as to costs."
2. Considering the background of facts which gave rise to the captioned writ petition, the learned Single Judge, while considering such questions in Special Civil Application No. 5398 of 2003 and allied matters derived facts from Special Civil Application No. 5398 of 2003. Since such facts are not Page 3 of 10 C/LPA/1542/2018 ORDER in dispute, in order to avoid duplicity, the relevant paragraphs of the judgement of the learned Single Judge are reproduced as under:
"6. The history with regard to these lands relates back to the time period of the State of Baroda when Mahesana district was under the rule of the State of Baroda and by Huzur order dated 03.02.1948, the lands were earmarked for settlement of Rabaris and Thakardas of Mahesana district, who were leading life of nomads and for their settlement and benefit, this order came to be passed.
6.1 On 21.04.1953, the Government of Bombay addressed a letter to the Collector, Mahesana about informing the decision of the Government to grant land allotted to Rabaris and Thakardas under
the Huzur order permanently, subject to conditions set out in that order. Accordingly, on 20.10.1968, by mutation entry No.3016 in the revenue record, the decision of the Government of granting lands to Rabaris and Thakardas was given effect to. Such entry came to be certified by the Mamlatdar on 31.12.1968. On 24.11.1970, there was a resolution by the State Government by which it was decided that the land of new tenure should be permitted to be converted into old tenure and the holders of such lands will not be required to pay any premium.
6.2 On 08.04.1982, the lands were purchased from the original owners by six separate sale deeds by one Prafulbhai Somabhai Patel and on 23.04.1982, NA permission in respect of these lands was granted by the office of TDO, Kalol. On 07.07.1982, said Prafulbhai Patel sold these very lands by way of sale deeds to one Safari Resorts Cooperative Housing Society Ltd. The transaction of sale was upheld by the Additional Collector in favour of original purchaser Prafulbhai Patel in the revisional proceedings and on 05.10.1993, the Prant Officer, Mahesana submitted a report to the Collector regarding tenure of the land. On 23.05.1994, State Page 4 of 10 C/LPA/1542/2018 ORDER of Gujarat took a decision to continue to treat the land as old tenure land and on 19.07.1994, mutation entry No.2184 came to be effected recording the fact of grant of NA permission by the competent authority in connection with the land in question. Therefore, from the date of decision of the competent authority, the land was shown as NA land, in occupation of Safari Resorts Cooperative Housing Society Ltd. Again on 10.06.1997, report by the Prant Officer, Mahesana regarding tenure of the land in question was made to the Collector, Mahesana and the Revenue Department also, by its communication dated 18.11.1997, held that the lands covered under mutation entry No.3016 are to be treated as old tenure lands by the Government.
On 22.12.1999, the petitioner purchased the lands in question from Safari Resorts Cooperative Housing Society Ltd. By two registered sale deeds. On 26.12.1999, the petitioner made an application for permission under Section 63AA of the Bombay Tenancy Act and in the same year, an application was made to the Superintendent of Central Excuse for issuance of registration certificate under the Central Excise Rules.
6.3 The concerned authorities for development of industries issued eligibility certificates to the petitioner regarding sales tax incentives as per the policy of the Government. However, in the year 2002, the Industries Commissioner issued show cause notice for cancellation of the eligibility certificate, where it came to the knowledge of the petitioner that application under Section 63AA of the Tenancy Act is refused and the ground for such refusal is that the Government has all of a sudden decided to treat the lands in question as new tenure lands in place of old tenure lands as considered previously."
2.1 After recording the contentions of the learned advocates, the learned Single Judge reproduced the prayer in one such petition and the same reads as under:
"(B) Be pleased to issue appropriate writ of Page 5 of 10 C/LPA/1542/2018 ORDER mandamus and/or any other appropriate writ, order or direction directing the respondents to consider the land of the petitioner to be old tenure on the basis of the decision that was taken long back and further be pleased to quash and set aside the communications/circulars dated 20.6.1995 (Annexure F), 21.9.2009 (Annexure H) and 18.7.2009 (Annexure L) as well as consequential entries changing the status of the land from old tenure into new tenure.
(C) Be pleased to declare that the subsequent change of policy could not have been given retrospective operation and further be pleased to direct the respondents not to consider the circulars issued subsequently to be affecting the land in question retrospectively and further be pleased to direct the respondents that in law, it would not be possible for them to consider mere executive instructions to have retrospective operation."
2.2 To answer the issue at hand, that is, whether the lands which formed part of the petitions could be treated as new tenure or old tenure, certain documents on record were examined by the learned Single Judge.
(a) On record, was the Huzur Order dated 03.02.1948 of the erstwhile Baroda State. By this order, a scheme was framed with an intention to settle nomadic tribes of Rabaris and Thakardas and lands were granted to them on certain conditions. The lands were sold to them at a price 15 times the assessment to be recovered in fifteen yearly installments. Further, it could be only sold to persons other than Rabaris and Thakardas after permission from the Government.
(b) On 21.04.1953, orders were passed by the Page 6 of 10 C/LPA/1542/2018 ORDER Government of Bombay wherein it was decided that occupancy price, assessment etc. of the lands in question should be recovered in accordance with the Huzur Order dated 03.02.1948.
(c) Reference was also made to the communication dated 30.07.1953 which suggested that the lands granted to such Rabaris should be considered as permanently granted to them. The occupancy price should be recovered in accordance with the Huzur Order of 1948.
(d) By a circular/Government Resolution dated 24.11.1970, the Government had resolved that from 01.11.1970, the new tenure land was to be converted into old tenure without taking any premium. This was with respect to land which was granted three years prior to merger and without any restrictions of any time period.
2.3 On considering the documents together with a document dated 18.11.1997 of the Collector, it was observed by the learned Single Judge that such lands are treated as old tenure lands. Reading of the order of the Collector dated 18.11.1997 indicates that it refers to the communication dated 30.07.1953, which in turn falls back on the Huzur Order dated
03.02.1948, where land is granted to the Rabaris on condition of the order of 1948, one of which stipulated payment of 15 times the assessment price, which has been paid.
2.4 From the very beginning, therefore, the land was granted without any restricted tenure, as is also evident from Page 7 of 10 C/LPA/1542/2018 ORDER the Report of the Prant Officer. The revenue record also notes that the assessment price of 15 times has been paid and therefore the revenue authorities have treated the land as old tenure. On merit, therefore, on examination of the communication under reference, the learned Single Judge answered the question in favour of the original petitioners - respondents herein holding the land to be old tenure.
3. Ms. Nisha Thakore, learned Assistant Government Pleader made strenuous efforts to impress us to hold otherwise and requested us to upturn the findings of the learned Single Judge. She submitted that perusal of the Huzur Order dated 03.02.1948 and Collector's order dated 30.07.1953 specifically mentioned that no sale of the concerned lands should be made without prior sanction of the Collector. That the order of revisional authority dated 21.09.1999 had set aside the communication dated 18.11.1997. The fact that the petitioners applied for permission and were ready to pay premium itself suggested that the land was new tenure land.
4. On an independent assessment of the documents on record, especially, the Huzur Order dated 03.02.1948 and the Collector's order dated 30.07.1953 together with the order dated 18.11.1997, it becomes clear that on payment of assessment price at 15 times the higher price, the land was made "old tenure" and therefore no reason existed to ask for permission to pay premium and therefore the learned Single Judge, in our opinion, rightly held that the lands in question were old tenure land.
Page 8 of 10 C/LPA/1542/2018 ORDER5. Even otherwise, the other aspect which the learned Single Judge has considered is the aspect of delay as reflected in the judgement under challenge, particularly, paragraph no. 23 thereof where the learned Single Judge has observed that after a passage of time from 1948 to 1997, the State cannot change the tenure of land. To prevent duplicity, we reproduce, with concurrence, the relevant portion of paragraph no. 23 and paragraph no. 25 of the judgement of the learned Single Judge :
"23. One more aspect which requires consideration is lapse of time. From the day the land was granted till the communication impugned in the year 1997, the lands were being treated as old tenure lands, which has become evident on the basis of revenue record and various communications in connection with these lands by the authorities themselves. After passage of period from 1948 to 1997, by a stroke of pen, the State cannot change tenure of land. ...
25. Even the provisions of the Land Revenue Code mandate action on the part of the authorities either within a time period specified under the statute or within a reasonable time. The chronology mentioned in the preceding paras would clearly indicate that the action on the part of the Government to treat the lands in question as new tenure land after lapse of almost three decades is beyond the comprehension of a reasonable period. Therefore, even from the revenue record, all the concerned, including the landholders were justified in treating the lands as old tenure lands and uninterrupted entering into the transaction also as old tenure lands."
6. It is also pertinent to note that the learned Single Judge has kept it open for the State to undertake an exercise as directed in the judgement. We, therefore, see no reason to Page 9 of 10 C/LPA/1542/2018 ORDER interfere in the judgement of the learned Single Judge impugned in the present appeal.
7. Appeal is accordingly dismissed. Civil Application for stay also stands disposed of accordingly. No costs.
(ANANT S. DAVE, ACJ) (BIREN VAISHNAV, J) DIVYA Page 10 of 10