Gujarat High Court
Ayeshabegam Shaikh & 2 vs State Of Gujarat - Through Secretary & 3 on 9 December, 2016
Equivalent citations: AIR 2017 (NOC) 238 (GUJ.)
Author: R. Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/1295/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1295 of 2016
in
SPECIAL CIVIL APPLICATION NO. 3188 of 2012
With
CIVIL APPLICATION NO. 11915 of 2016
In
LETTERS PATENT APPEAL NO. 1295 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
==========================================================
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 or any order made thereunder ?
==========================================================
AYESHABEGAM SHAIKH & 2....Appellant(s)
Versus
STATE OF GUJARAT - THROUGH SECRETARY & 3....Respondent(s)
==========================================================
Appearance:
Page 1 of 12
HC-NIC Page 1 of 12 Created On Sat Dec 10 00:00:14 IST 2016
C/LPA/1295/2016 CAV JUDGMENT
Ms.SONAL D VYAS, ADVOCATE for the Appellant(s) No. 1 - 3
SHRI V.R. JANI, ASSISTANT GOVERNMENT PLEADER for respondent no.1.
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 09/12/2016
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) This Letters Patent Appeal under Clause 15 of the Letters Patent is filed by the original petitioners in Special Civil Application No.3188 of 2012 aggrieved by the judgment and order of the learned Single Judge dated 29.06.2016. By the aforesaid judgment and order the learned Single Judge dismissed the petition confirming the order of the Revisional Authority, viz. Secretary (Appeals), Revenue Department, respondent no.4 herein dated 25.01.2012 in Revision Application No.77 of 2006, which was directed against the order of respondent no.2- Collector, Junagadh dated 06.11.2006, which was passed in exercise of powers under section 79A of the Gujarat Land Revenue Code, 1879.
2. Government has given on lease, the land covered under Survey No. 653/ Paiki, ad-measuring 10 acres at Village Rahij, Taluka Mangrol, District Junagadh, to late husband of petitioner no.1, namely, Major K.S. Mohammad Ali for a period of 30 years on Page 2 of 12 HC-NIC Page 2 of 12 Created On Sat Dec 10 00:00:14 IST 2016 C/LPA/1295/2016 CAV JUDGMENT certain terms and conditions for the purpose of growing fruit bearing trees vide order No.Land/C/7195/65 dated 03.06.1965. It is stated that late husband of respondent no.1 was in Armed Forces, the said land was given to him on lease as per the policy of the Government. After the death of the original lessee, the land was mutated in the names of heirs. The appellants- petitioners have applied to the Government to grant the said land on permanent basis instead of leasehold rights. Considering the application of the appellants- petitioners, after calling for a report of the Collector, Junagadh, the respondent authorities were pleased to determine the value of the land vide order No.Land/1/C/ 2454 dated 23.05.1978, by fixing the price at Rs.1000/- per acre. The said land in question was therefore, granted on permanent basis for growing fruit bearing trees by continuing the original lease terms as well as with the condition of new tenure and impartible tenure attached to it.
3. The appellants herein have also made an application dated 23.08.2002 to convert the said land into old tenure, but the State Government vide communication dated 05.07.2003, informed the Collector that it cannot be converted to old tenure.
4. The appellants herein have made an application dated 15.08.2004, seeking permission to sell the said land to one Hardash Devshibhai Chandera, which was received by the Collector on Page 3 of 12 HC-NIC Page 3 of 12 Created On Sat Dec 10 00:00:14 IST 2016 C/LPA/1295/2016 CAV JUDGMENT 24.08.2004. The contents of the application itself indicate that they have shown their willingness to sell the said land in favour of said Hardash Devshibhai Chandera. On the said application, the appellants herein were called upon to furnish details about the name of prospective purchaser. The appellants have furnished necessary details along with application and Kabuliyat referred to the Mamlatdar. Said Kabuliyat was executed by third party, namely, Hardash Devshibhai Chandera. During the process of application when it has come to light that the appellants- petitioners have not grown fruit bearing trees as per the conditions imposed in the original grant of lease and subsequent order granting the land on permanent basis and further when third party was found to be in possession of the land, proceedings were initiated for forfeiture of the land in exercise of powers under section 79A of the Gujarat Land Revenue Code, 1879, and order bearing No.Land/1/C/ 3642/ 2006 dated 06.11.2016 was passed by the Collector. Accordingly the said land was ordered to be vested with the State Government.
5. The aforesaid order of the Collector was questioned by way of Revision Application No.77 of 2006 before respondent no.4 herein and the learned Secretary (Appeals), Revenue Department, after considering the record of the case and considering the submissions of the appellants herein passed order dated 25.01.2012, dismissing the Revision Application by confirming the order dated 06.11.2006 Page 4 of 12 HC-NIC Page 4 of 12 Created On Sat Dec 10 00:00:14 IST 2016 C/LPA/1295/2016 CAV JUDGMENT passed by the learned Collector vesting the land in question with the State Government.
6. Questioning the aforesaid orders the appellants herein have filed the Special Civil Application under Articles 226 and 227 of the Constitution of India. By not accepting the submissions advanced on behalf of the appellants- petitioners and by recording finding that the appellants- petitioners have parted with possession of the land to a third party, namely, Hardash Devshibhai Chandera and further the purpose for which the land was allotted was not fulfilled, which has resulted in breach of conditions, the learned Single Judge dismissed the petition by order dated 29.06.2016.
7. Heard Ms.Sonal D. Vyas, learned counsel for the appellants and Shri V.R. Jani, learned Assistant Government Pleader for respondent no.1.
8. The submission of the learned counsel for the appellants in this appeal is mainly three-fold. Firstly, it is contended that the land was alloted as per the policy of the Government, as husband of respondent no.1 was an ex-army personnel, who died in Indo-Pak war. It is submitted that though the appellants are continuing in possession after the demise of the original grantee, in spite of the same without conducting proper inquiry the authorities have held that the appellants are not in possession. Secondly, it is submitted Page 5 of 12 HC-NIC Page 5 of 12 Created On Sat Dec 10 00:00:14 IST 2016 C/LPA/1295/2016 CAV JUDGMENT that the authorities have not given proper opportunity of hearing to the appellants before passing the order for vesting the land with the Government. It was submitted that date of hearing was synchronized with a festival, as such the appellants could not appear and without informing further date of hearing, the order was passed. Thirdly, it is submitted that even the order under section 79A of the Gujarat Land Revenue Code, 1879 has to be passed within a reasonable time, but not after this length of time by depriving the land allotted to the appellants.
On the other hand it is the submission of the learned Assistant Government Pleader that the original grant itself granting lease to the husband of appellant no.1 was conditional with the condition for growing fruit bearing trees. Though the land was allotted at the first instance in the year 1965, the land was not utilized at all for the purpose of growing trees. Thus, the original grantee has violated the conditions. It is submitted that even after demise of the original grantee, when orders were passed granting the land on permanent basis, the same was granted with some conditions, which form the original grant and with further condition to treat the same as a new tenure land. In spite of the same no steps were taken to grow the land and on the other hand when inquiry proceedings were initiated it was found that third party, namely, Hardash Devshibhai Chandera was in possession of the land. It is further submitted that before the Primary Authority, the intended Page 6 of 12 HC-NIC Page 6 of 12 Created On Sat Dec 10 00:00:14 IST 2016 C/LPA/1295/2016 CAV JUDGMENT purchaser of the land in whose favour application was submitted by the appellants, had appeared claiming that he was General Power of Attorney Holder and order was passed by the competent authority. It is submitted that when the appellants failed to appear before the authority in spite of having received notice, either on the date of hearing or any day before the order was passed, it cannot be said that no proper opportunity of hearing was given to them. It is also further submitted that breach of condition has come to light in the inquiry which was conducted pursuant to the application submitted by the petitioners in the year 2004. Thus, it cannot be said that no order is passed within reasonable time. It is contended that when grant of the Government land is made with conditions, whenever it comes to the notice of the Government that such conditions are breached, it is always open for the respondent authorities to pass appropriate orders for taking back the land in question.
9. From the arguments advanced by the learned counsel for the appellants and the learned Assistant Government Pleader and after perusing the material placed on record, it is clear that the land in question belongs to the Government and the same was granted originally by way of lease for a period of 30 years with condition of growing fruit bearing trees on the land. It is not disputed that fruit bearing trees were not grown on the land. Merely a statement is made that the land is a saline land and as such it is not possible for Page 7 of 12 HC-NIC Page 7 of 12 Created On Sat Dec 10 00:00:14 IST 2016 C/LPA/1295/2016 CAV JUDGMENT growing fruit bearing trees, but at no point of time neither the original grantee nor the appellants herein have fulfilled such conditions governing allotment of land. Repeated representations will not confer any right on the appellants- petitioners to continue in possession without growing fruit bearing trees. In fact, one of such applications has also been rejected by the authorities. During the inquiry on the application submitted by the appellants- petitioners in the year 2004, to sell the land in question in favour of third party, namely, Hardash Devshibhai Chandera, it was found that the land was not used for growing fruit bearing trees, but a portion of the land was given to third party, who cultivated it for groundnut crop and the remaining land was kept fallow, as such the respondents have initiated proceedings in the year 2006.
10. The Primary Authority, after initiating proceedings under section 79A of the Gujarat Land Revenue Code, 1879, has fixed date of hearing by issuing advance notice. Receipt of such notice is not disputed by the appellants, but at the same time on the date of hearing, third party, namely, Hardash Devshibhai Chandera had appeared on behalf of the appellants claiming that he is Power of Attorney Holder and he was representing the appellants. That itself substantiates the stance of the Government that third party is in actual and physical possession of the land and the same is in breach of the conditions. In view of such finding recorded by the Primary Authority and the learned Single Judge, it is difficult to Page 8 of 12 HC-NIC Page 8 of 12 Created On Sat Dec 10 00:00:14 IST 2016 C/LPA/1295/2016 CAV JUDGMENT accept the contention of the learned counsel for the appellants that the appellants continued in possession. Though the land is granted at the first instance in the year 1965, at no point of time fruit bearing trees were grown in spite of the fact that such conditions were continued, even after grant of land on permanent basis. Thus, it is clear that the appellants have breached the conditions imposed in the original grant and the subsequent grant on permanent basis. Other submission made by the learned counsel that there was no proper opportunity of hearing given in the inquiry proceedings also cannot be accepted. It is to be noticed that it is evident from the Affidavit-in-Reply that notice was issued by the Primary Authority on 15.10.2006, fixing the date of hearing on 25.10.2006. When the matter was called out for hearing on 25.10.2006, third party, namely, Hardash Devshibhai Chandera was present claiming to be Power of Attorney Holder of the appellants. However, no Power of Attorney has been produced by him and the whole proceedings were started when the appellants have moved an application seeking permission to sell the land in question vide application dated 15.08.2004 and the contents of the application itself suggest that the appellants have shown their willingness to sell the land in favour of Hardash Devshibhai Chandera. In view of such contents of the application coupled with the fact that said Hardash Devshibhai Chandera represented before the Collector, that itself is sufficient to hold that proper opportunity was given and the appellants were aware of the hearing of the matter and in spite of Page 9 of 12 HC-NIC Page 9 of 12 Created On Sat Dec 10 00:00:14 IST 2016 C/LPA/1295/2016 CAV JUDGMENT the same they have not chosen to appear before the Primary Authority. It appears that the appellants have already inducted a third party in possession and that the they have lost interest in the land in question and that they have failed to appear before the Primary Authority.
11. In view of such material placed on record coupled with the averments made in the Affidavit-in-Reply, it cannot be said that no opportunity of hearing was given to the appellants before vesting the land with the Government. Other and the last submission made by the learned counsel for the appellants is that orders can be passed even in exercise of powers under section 79A of the Gujarat Land Revenue Code, 1879 within reasonable time, but not at this length of time, also cannot be accepted. It is not in dispute that the original grant of lease, and subsequent grant of the very same land on permanent basis is attached with condition, namely, growing fruit bearing trees only. Whenever it comes to the notice of the authorities that conditions are breached it is always open for the authorities to initiate proceedings in accordance with law and take steps for vesting the land with the Government. When the Government land is allotted with some objective by imposing certain conditions, and it comes to the notice of the authorities that conditions are breached, it is always open for the authorities to pass order for vesting the land with the Government again. Page 10 of 12 HC-NIC Page 10 of 12 Created On Sat Dec 10 00:00:14 IST 2016 C/LPA/1295/2016 CAV JUDGMENT
12. Though the learned counsel for the appellants placed reliance on a Division Bench judgment of this Court in the case of Bhanji Devshibhai Luhar Vs. State of Gujarat and others reported in 2011 (2) GLR 1676, we are of the view that having regard to the fact situation in the present case, the said judgment relied on by the learned counsel would not render any assistance in support of the argument that the order is not passed within reasonable time. The aforesaid judgment in the case of Bhanji Devshibhai Luhar (supra) deals with the provisions of sections 54 and 75 Saurashtra Gharkhed, Tenancy, Settlement and Agricultural Lands Ordinance, 1949, when there was transaction in favour of non-agriculturist and action was taken after 17 years of transaction such order of the authority was set aside, but in the case on hand the land is attached with certain conditions and when such conditions are not modified by the competent authority it is always open for the authorities to pass appropriate orders when it comes to the notice of the authorities that conditions are breached by the allottee. In that view of the matter, we are of the considered view that the judgment relied on by the learned counsel for the appellants does not support the case of the appellants.
13. For the aforesaid reasons and having regard to the finding recorded by the learned Single Judge, we do not find any merit in this appeal so as to interfere with such finding recorded by the authorities as confirmed by the learned Single Judge. The Letters Page 11 of 12 HC-NIC Page 11 of 12 Created On Sat Dec 10 00:00:14 IST 2016 C/LPA/1295/2016 CAV JUDGMENT Patent Appeal is devoid of merits. Accordingly it is dismissed. No order as to cost.
14. Consequently, the Civil Application does not survive. The same is disposed of accordingly.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) karim Page 12 of 12 HC-NIC Page 12 of 12 Created On Sat Dec 10 00:00:14 IST 2016