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Gujarat High Court

Rajeshbhai Rambhai Dadal vs State Of Gujarat & 3 on 20 June, 2017

Author: J.B.Pardiwala

Bench: J.B.Pardiwala

                  C/SCA/11279/2017                                             ORDER




                  IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                     SPECIAL CIVIL APPLICATION NO. 11279 of 2017

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                        RAJESHBHAI RAMBHAI DADAL....Petitioner(s)
                                       Versus
                         STATE OF GUJARAT & 3....Respondent(s)
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         Appearance:
         MR MB DODIA, ADVOCATE for the Petitioner(s) No. 1
         MS. THAKORE, AGP for the Respondent(s) No. 1
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          CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA

                                     Date : 20/06/2017


                                      ORAL ORDER

1. By this application under Article 227 of the Constitution of India, the applicant has prayed for the following reliefs;

"(A) Your Lordships may pleased to issue appropriate writ of mandamus and/or writ of certiorari or any other appropriate writ or direction which the Hon'ble Court deem fit and may please to call for R&P of Appeal No.MAVIVI/HAKAP/SURENDRANAGAR/23/2016 and your lordships may please to allow this special civil application.

(B) Your Lordship may please to quash and set aside the order dated 23.12.2016 which was passed by learned Secretary Revenue Department (Vivad) Ahmedabad in Appeal No.MAVIVI/HAKAP/SURENDRANAGAR/23/2016 (Annexure A).

(C ) Your Lordship may please to quash and set aside the order dated 30.07.2016 of Ld. Collector, Surendranagar in Revision Application being R.R.T Revi. Case No.29/2015-16 (Annexure K) and may please to quash and set aside the order dated 05.03.2013 Page 1 of 4 HC-NIC Page 1 of 4 Created On Sat Aug 19 00:58:28 IST 2017 C/SCA/11279/2017 ORDER (Annexure J) of Ld. Dy. Collector, Chotila in Remand Case being R.R.T Remand Appeal No.185/2012 and may please to declare the disputed land being Survey No.160 of Sarodi Village Ta: Chotila Dist: Surendranagar isnot falls in category of Navi Sharat-New Tenure.

(D) During the pendency and till final disposal of this petition by way of interim relief, Your Lordship may please to pass direction to stay the order dated 23.12.2016 (Annexure A) of Ld. Secretary Revenue Department (Vivad) Ahmedabad, as well as may please to stay the order dated 30.07.2016 (Annexure K) of Ld. Collector, Surendranagar in Revision Application being R.R.T Revi. Case No.29/2015-16 and may please to stay the order dated 05.03.2013 (Annexure-J) of Ld. Dy. Collector, Chotila in Remand Case being R.R.T Remand Appeal No.18/2012.

(E) Your Lordship may please to award or grant any such other and further relief as the Hon'ble Court may deemed fit in the interest of justice."

2. The dispute pertains to the land bearing Survey No.160 paiki, admeasuring about 2 hectares, situated at village Sarodi, Taluka: Chotila, District: Surendranagar.

3. This land was in occupation and possession of one Butabhai Ghelabhai Bharwad. Butabhai derived this land from the then Lakhtar State. In this regard, an entry came to be mutated bearing No.22 in the year 1953. After the demise of Butabhai, the names of his two daughters, namely, Amriben and Hemuben came to be mutated in the record of rights in the year 1989. In this regard, an entry came to be mutated bearing No.399.

4. Amriben and Hemuben transferred the land by way of a registered sale deed dated 14.05.2007 in favour of one Vanitaben Tulshibhai Chavda and Vrajlal Tulshibhai Chavda.

HC-NIC Page 2 of 4 Created On Sat Aug 19 00:58:28 IST 2017 C/SCA/11279/2017 ORDER As there was some discrepancy, the corrected sale deed was executed dated 19th June, 2007. The two sale deeds dated 14.05.2007 and 19.6.2007 gave rise to two entries bearing Nos.903 and 904 dated 20th June, 2007. It appears from the materials on record that the petitioner herein purchased the land in question by a registered sale deed dated 20th October, 2010 executed by Vanitaben and Vrajlal. This gave rise to the mutation of two Entry Nos.1063 and 1064 respectively. These two entries are the subject matter of dispute.

5. According to the authorities, the land in question is a new tenure land and, therefore, the legal heirs of Butabhai could not have transferred by way of a sale deed in favour of Vanitaben and Vrajlal.

6. Be that as it may, the petitioner is here before this Court seeking a declaration that the land in question is not a new tenure land. The Deputy Collector, in his order dated 5th March, 2013, while allowing the appeal filed by the petitioner herein, held in the operative part of the order as under;

"In view of the aforesaid discussion, the appeal preferred by the applicant against the order dated 3rd March, 2011 about the Mutation Entry Nos.1063 and 1064 dated 20th December, 2010 of village Sarodi, Taluka: Chotila , Sub- division is allowed. The order of the Circle Officer is set aside. Also, it is directed to clarify in 7/12 of Revenue Survey No.160 paiki 1, Hectare 2-22-08 and Revenue Survey No.160, Hectare 2-22-07 that the land is subject to premium for N.A. Purpose."

7. This order of the Deputy Collector, referred to above, has been affirmed by the Collector and the S.S.R.D. Page 3 of 4 HC-NIC Page 3 of 4 Created On Sat Aug 19 00:58:28 IST 2017 C/SCA/11279/2017 ORDER

8. The petitioner is dissatisfied to the order passed by the Deputy Collector to the effect that the land in question will be subject to the payment of premium for the purpose of non- agricultural purpose. If Butabhai was allotted the land in the year 1953 by the then Lakhtar State for the purpose of cultivation, then it is necessarily to be understood that the land was a restricted tenure land subject to certain terms and conditions.

9. I do not find any error not to speak of any error of law committed by the authorities in passing the impugned order.

10. I see no good reason to take the view that the land is an old tenure land, and it is not permissible for this Court to give such a declaration in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India. The petitioner, as on date, claims to be cultivating the land. In future, if he decides to seek permission for N.A, he will have to pay the premium accordingly.

11. With the above, this application is disposed of.

(J.B.PARDIWALA, J.) Vahid Page 4 of 4 HC-NIC Page 4 of 4 Created On Sat Aug 19 00:58:28 IST 2017