Gujarat High Court
Bhavsar vs State on 11 January, 2012
Author: V. M. Sahai
Bench: V. M. Sahai
Gujarat High Court Case Information System
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LPA/1057/2011 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1057 of 2011
In
SPECIAL
CIVIL APPLICATION No. 11341 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE V. M. SAHAI
HONOURABLE
MR.JUSTICE A.J. DESAI
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
BHAVSAR
SAVITABEN HIMMATLAL THRO'POA BHAVSAR A SHAMALDAS & ANR
Versus
STATE
OF GUJARAT & ORS
=========================================
Appearance :
MR
BP DALAL for Appellants
MR N.J. SHAH AGP for Respondents No. 1 -
2
MR HASMUKH A SHAH for Respondent No.
3
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CORAM
:
HONOURABLE
MR.JUSTICE V. M. SAHAI
and
HONOURABLE
MR.JUSTICE A.J. DESAI
Date
: 11/01/2012
ORAL
JUDGMENT
(Per : HONOURABLE MR.JUSTICE A.J. DESAI) 1 By way of the present Appeal under Clause-15 of the Letters Patent, the appellants - original petitioners have challenged the Order dated 5.11.2009 passed by the learned Single Judge in Special Civil Application No. 11341 of 2009 by which the writ petition has been summarily dismissed.
2. We have heard Mr. B.P. Dalal, learned Counsel for the appellants, Mr. N.J. Shah, learned AGP for respondents No. 1 and 2 and Mr. Hasmukh A. Shah, learned Advocate for respondent No.3 - panchayat. We have perused the Order passed by the learned Single Judge, the Government Resolutions produced by the parties and have gone through the petition along with its annexures, affidavits and rejoinders filed by the parties.
3. Brief facts arising from the case are as under:
3.1 That the appellants/petitioners are the residents of village Sathamba of Taluka - Bayad, District - Sabarkantha, holding a property in the said village. By an Application dated 4.2.2002, the appellants/petitioners requested the Collector of Sabarkantha to sell a piece of land, admeasuring 9.85 sq. meters which is adjacent to their property. The land which was demanded by the appellants/petitioners is situated in between Survey No. 2036/5, 6, 7 and 8 and Survey No. 2030/50. It was contended that the appellants/petitioners are owners of the land bearing Survey No. 2036/5, 6, 7 and 8. The said demand was not granted by the Collector, vide his order dated 30.5.2003 on the ground that the land is of `gamtal' and, therefore, consent of the panchayat was necessary and no such consent was produced by the appellants/ petitioners before the Collector. The said order was challenged by the appellants/petitioners by way of filing a Revision Application under Section 211 of the Bombay Land Revenue Code which was partly allowed by the Secretary on 6.9.2005 directing the Collector to reconsider the case of the appellants/petitioners. In response to a show cause notice issued by the Collector, the appellants/ petitioners pleaded their case by way of reply dated 14.7.2008.
The Collector, Sabarkantha, referred the matter to the State Government, for necessary orders. The Secretary, by his order dated 4.3.2009, rejected the application filed by the appellants/petitioners on the ground that the land is of `gamtal' and as per the Government Resolution dated 6.6.2003 and particularly as per Clause 13.1 of the said Resolution, the appellants/petitioners were not entitled for the piece of land which they demanded in 2002.
3.2 It appears that when the application for selling the disputed property was filed i.e. in 2002, the Government Resolution dated 30.9.1987 was applicable for allotment of the land. The said Resolution was issued under Rule 43(B) of the Bombay Land Revenue Rules, 1972 (hereinafter mentioned as "The Rules"). The said Resolution is produced by the Deputy Collector along with his affidavit-in-reply in the present Letters Patent Appeal, which was a consolidated Resolution, by which it was resolved that, if, a piece of land which is described in the said Resolution is adjacent to the ownership of a person, which cannot be sold as an independent plot but it can be disposed of as per Rule 43(B) of the said Rules. Rule 43(B) of the Bombay Land Revenue Rules, 1972 reads as under:
" 43-B. Disposal of small strips of land adjacent to occupied unalienated building sites. When any small strip of land vesting in Government adjacent to an occupied building site cannot reasonably be disposed of as a separate site, the Collector may, notwithstanding anything to the contrary contained in any of the rules in this Chapter, grant such strip to the holder of the said site on the same tenure on which he holds the said site if he agrees to pay
-
(a) assessment or rent, as the case may be, for such strip of land at the same rate, if any, at which he pays assessment or rent for the said site, and
(b) such price or premium as the Collector deems adequate having regard to the situation of such strip and any other advantages which are likely to accrue to the holder on account of its disposal to him."
4 It is pertinent to note that by letter dated 20th December, 2006, Mamlatdar of Bayad opined that the land which was demanded by the appellants/petitioners is of such a nature, which can be allotted to the them. The said report is produced by the appellants/petitioners along with their additional affidavit.
5 Looking to the Resolution dated 6.6.2003 which is relied by the Secretary is a Resolution which provides the allotment of different pieces of land to different persons. It is a consolidated Resolution which is passed after considering about 75 Resolutions. The said Resolution does not include the Resolution dated 30th September, 1987, by which the lands can be disposed of in accordance with Rule 43(B) of the said Rules.
6 We do not accept the submission advanced on behalf of the respondent-State that another Resolution dated 28th March, 1989 would be applicable in the case of the present appellants/petitioners since the said Resolution, though, a consolidated Resolution considering about 50 Resolutions of the State Government, does not include the Resolution dated 30th September, 1987.
7 The respondent No.3 - panchayat has filed its affidavit and has opined that the land in dispute, is not at all useful land for any other purpose and, if, the land is allotted to the appellants/ petitioners, nobody would be put to any inconvenience.
8 When the Resolutions which are relied by the State Government i.e. 6.6.2003 and 28.3.19989 are not applicable in the present case whereas the Government has not considered the Resolution dated 30.9.1987 which holds the field good and is applicable to such land which is prescribed in the said Resolution which includes `Gamtal' land. In view of this, we hold that, the case of the appellants/petitioners would be covered under the Resolution dated 30th September, 1987 and they are entitled for the land in dispute.
9 In the result, the Appeal succeeds and is allowed. The Order dated 5.11.2009 passed by the learned Single Judge in Special Civil Application No. 11341 of 2009 is set aside. Consequently, the Order dated 4.3.2009 passed by the Secretary, Revenue Department as well as the Order dated 27.3.2009 passed by the Collector, Himmatnagar, are also set aside. The respondent No. 2 - Collector Himmatnagar is directed to sell/allot the land, admeasuring 9.85 sq. meters, which is situated in between Survey No. 2036/5, 6, 7 and 8 and Survey No. 2030/50, which is adjacent to the property of the appellants/petitioners property of Village Sathamba, Taluka - Bayad District - Sabarkantha, at market value. The respondent No.2 - Collector - Sabarkantha, shall comply with the aforesaid direction within a period of three months from the date of copy of this judgment being produced before him. Direct Service is permitted.
(V.M. SAHAI, J.) (A.J. DESAI, J.) pnnair Top