Gujarat High Court
Legal Heirs Of Deceased Rambhiben ... vs State Of Gujarat & 2 on 4 October, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/18078/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18078 of 2017
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LEGAL HEIRS OF DECEASED RAMBHIBEN SHAMJIBHAI
DHARODIYA....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR PERCY KAVINA, SENIOR ADVOCATE WITH MR Y J PATEL, ADVOCATE
for the Petitioner(s) No. 1 - 1.2
MR UTKARSH SHARMA, AGP ADVANCE COPY SERVED TO GP/PP for the
Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 04/10/2017
ORAL ORDER
1. By this application under Article 227 of the Constitution of India, the applicants call in question the legality and validity of the order dated 24/05/2017 passed by the SSRD at Ahmedabad, by which, the SSRD rejected the revision application filed by the applicants herein, thereby, affirming the order of the Collector dated 03/01/2011.
2. The dispute pertains to a land bearing survey No.203 paiki admeasuring 02 Acre and 11 Gunthas situated at mouje Wankaner, TalukaWankaner, DistrictMorbi. This parcel of land was allotted in favour of the mother of the applicants Smt. Rambhiben Shamjibhai Prajapati by order of the Assistant Collector, Morbi, dated 24/07/1978 subject to certain terms and conditions. The main object of the allotment of this land was to sow the fruit bearing trees so that the allottee can earn her livelihood out of the same over a period of time.
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3. It appears that all that was done in the year 1978 was to sow about 70 trees of berries (bor). The authority concerned took notice of the fact that the land was not developed and remained barren as such for all these period of years. The record further reveals that the original allottee Smt. Rambhiben Shamjibhai Prajapati has passed away. It is the son who is now pursuing this litigation. Unfortunately, the son also could not protect the land allotted by the Government for an avowed object and it appears that the land has been encroached upon by different individuals. The record further reveals that unauthorized construction has been made of houses in the land in question. Some third parties are occupying the land. It is evident from the record that the land is not being cultivated. The trees which were sown wayback in the year 1978 might have grown big, but they are only berries. The whole object of allotment was that if good fruit bearing trees are grown, then that would yield some income for the lady.
4. The Deputy Collector, in his impugned order dated 08/07/2010 observed as under: Therefore, as discussed above, considering the panch rojkam dated 25/09/2008 of City Talati, Wankaner and the statement produced by the opponent's son, etc., Wankaner survey no. 203 paiki, land admeasuring acre 211 guntha was given to the opponent vide this office's order dated 24/07/1978 for the purpose of fruit trees, and undertaking of Rambhiben Shamjibhai Dharodiya was obtained in form (1) for compliance of order and conditions mentioned in the sanad. It clearly appears that land in question was given for the fruit plantation. The opponent has not produced any evidence to prove that land in question was used for the same purpose for which it was given. As per panch rojkam of City Talati, land is uncultivated waste land for the last 25 years. It is proved that opponent has breached conditions specified in the sanad of the order. Though the opponent has given undertaking that I would use land for fruit trees, no compliance has been made as per the undertaking. As opponent has failed in utilising the land, for the purpose and conditions, it was given, it is believed to Page 2 of 7 HC-NIC Page 2 of 7 Created On Fri Nov 17 23:57:46 IST 2017 C/SCA/18078/2017 ORDER have been proved that conditions of the order/conditions of the sanad have been breached. I declare my decision as below in this case.
:: O R D E R :: The land admeasuring acre 211 guntha bearing survey no. 203 paiki situated in Vankaner village of Vankaner Taluka, was given vide this offfice's order no. JMN/vashi/2139 dated 24/07/1978 for the purpose of fruit trees. As discussed above, as per show cause notice no. ADM/vashi/3822 dated 10/06/09 issued to the opponent for the breach of conditions, as fruit trees have not been planted in the land in question and it is believed to have been proved that it had been kept unused for the last 25 years. It is ordered to confirm the notice issued to the opponent and confiscate the land to the government for the breach of the conditions of the sanad.
5. The Collector in his impugned order dated 03/01/2011 observed as under: (4) It is mainly submitted in written/ oral submission that the talati has not made entry of the order in the village record, Town Planning Act - 1982 has been implemented and the property falls within the residential zone. Draft Development Plan has been approved. Use can be made as per zone. We have not made use against the law. As we are in possession of land, the possession cannot be forfeited considering violation of condition. It cannot be confiscated. Possession cannot be lost if entry is not made. Land has been given permanently to cultivate fruit orchard after recovering possession value. We do not have to bear the fine as the entry of the order is not made in village record. Therefore, it is submitted to pass appropriate order.
(5) Considering the oral/written submission on appeal petition and case record of lower court, it is found that as per the order no. JMN Vashi2139, dated 24/7/78 of the Assistant Collector of Morbi, government waste land located at Vankaner bearing survey no. 203 paiki land admeasuring Acre 2 - 11 Guntha has been allocated to the applicant subject to specific conditions to cultivate fruit trees. As per condition no.6 of the order, fruit trees had to be sown and it was mentioned in condition no.12 that if trees are not sown or grown, the sanad would be cancelled and the land can be taken back and confiscated by the government. Clear condition was laid down that no compensation for land or improvement made thereon shall be admissible. On 16/8/78, the applicant accepted the conditions mentioned in attached proforma - F(1) with the sanad given as per the conditions of the order. It is mainly submitted in the appeal Page 3 of 7 HC-NIC Page 3 of 7 Created On Fri Nov 17 23:57:46 IST 2017 C/SCA/18078/2017 ORDER petition that entry as per the order was not made in village record and though it was the duty of the talati, he did not do this work. As per law and rules, entry as per the order should be made in the record, but no details have been submitted by the applicant that he sent any letter or made representation from 1978 to 2008 that he did not receive revenue record regarding the land allocated to him. The land owner should also make sure that he pays land revenue assessment to be paid every year to obtain record of his land. If the land owner had tried to pay land revenue/ assessment, then the order might have been implemented in the village record during the respective year itself.
(6) The applicant has submitted that he has to only implement Sections - 13, 17, 40 and 41 of the Gujarat Town Planning and Urban Development Act and Town Planning Rules, 1979 and that occupancy of land cannot be taken back after occupancy of 30 years; for which Limitation Act should be referred. As the entire soil got eroded during floods in the year 1979, the cultivation could not be preserved and the land became rocky. A well was constructed in the land. It is declared that cultivation was done in the land but due to animal pests, fruits trees could not be grown. This submission cannot be admissible because as per the conditions of the order/ sanad, fruit trees were to be sown and grown that means conditions had to be complied with. If the conditions are violated, as per the condition, the sanad can be cancelled at any time and the land can be confiscated by the government and the applicant is not entitled to seek compensation for the land or any improvement done on the land. Such clear conditions are laid down in the order and the applicant had also accepted the conditions. Thus, the conditions with which the land has been allocated, should be complied with. As it is declared by the applicant that the conditions are not followed that means fruit trees could not be grown due to animal pests and as per the rojkam prepared on 25/9/08, it is found that the land is waste land, the land can be confiscated by the government at any time due to the violation of conditions of the order/ sanad. Such clear condition is laid down. Therefore, as discussed above, it is not just to interfere in the order of the Deputy Collector, Morbi, dated 8/7/10. Therefore, the following order is passed.
:: ORDER ::
(7) The appeal of the applicant is rejected and the order of the Deputy Collector, Morbi, dated 8/7/10 passed in Breach of Condition case no. 1/0910, is upheld.
To inform the parties. Sd/
H.S. Patel
Collector, Rajkot District
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C/SCA/18078/2017 ORDER
6. The SSRD in its impugned order observed as under: 2.1) The land admeasuring acre 2 11 guntha bearing survey no.
203 paiki situated at moje Vankaner, Taluka Vankaner was given to Mrs. Rambhiben Shamjibhai Prajapati vide Assistant Collector, Morbi's order no. landvashi2139 dated 27/04/78 for the purpose of fruit trees subject to conditions specified in the order. On making application in respect of implementing the same in the village record, it does not appear that land belongs to anyone as per details of the rojkam dated 25/09/08 of Mamlatdar, Vankaner, and it does not appear that the same was used or being used at local level. The report dated /11/08 was sent to the Deputy Collector, Morbi stating that land should be confiscated to the government considering breach of conditions of the order, and the same, being waste land, was demanded by Apang Utakarsh Jankalyan Trust for homeless blind applicants. The Deputy Collector, Morbi issued show cause notice and gave an opportunity to make defence and passed an order dated 08/07/10 to confiscate the disputed land to the government for breach of conditions specified in the order/sanad believing having been proved that fruit trees were not planted on the suit land and it was kept unused for the last 25 years. Aggrieved by the said order, applicant filed revision application before the Collector, Rajkot. The Collector, Rajkot rejected revision application of the applicant by his order no. landappeal203 case no. 101/0910 dated 03/01/11. Aggrieved by the same, applicant filed review application before this office on 16/06/2014 and dispute has arisen.
2.2) The disputed land admeasuring acre 211 guinthas was allotted to the applicant vide Assistant Collector, Morbi's order dated 24/07/78 for planting fruit trees subject to the fulfillment of particular conditions. As per condition no. 6 of the order, fruit trees were required to be planted and as per condition no. 12, if trees are not planted, land can be confiscated by revoking sanad. It was crystal clear condition in the order that no compensation can be demanded in respect of suit land or any reformation made thereon. In this case, applicant has not produced any record as evidence in respect of payment of land revenue as per land holder every year by the applicant.
2.3) It is the submission of the applicant that there had been possession for the last 30 years and therefore, possession can be taken away after the possession for 30 years. The limitation act should be referred. It has been submitted that the sowing could not be saved due to ravaged flood in Morbi in 1979. The land became rocky, which cannot be accepted because as per the conditions specified in the sanad of the order and undertaking, fruit trees were required to be planted and conditions were required to be complied with. The applicant has Page 5 of 7 HC-NIC Page 5 of 7 Created On Fri Nov 17 23:57:46 IST 2017 C/SCA/18078/2017 ORDER not complied with the conditions specified in the order of the land allotment. The applicant has not used the land for the purpose it was allotted. In this case, Mamlatdar, Vankaner has been asked to do panch rojkam in respect of conditions of the place. He has produced panch rojkam vide his letter no. JMN/vashi/410/17 dated 04/01/17. It has been mentioned in the panch rojkam that there are mostly babul trees in the land and land is stony. There are about 70 berry trees and 3 neem trees. Bhavnaben Manubhai has constructed a room. A Nepali person, namely Chauhan Dipak Gagansinh, has constructed upto plinth level on the land in question. The stones are seen spread at some places on the land in question. There is a well on the land in question. There is a thorny hedge. The Circle Officer, Vankaner has sent a report vide outward no. 1/17 dated 04/01/017. It is clearly mentioned therein that Deputy Collector, Morbi has ordered to confiscate the land to the Government vide his order dated 08/07/10. No evidences are found in respect of taking back possession. The partial encroachment appears on the land in question. As there is no necessary boundary found around the land in question, it is not proved that the said land was in the possession of the applicant.
2.4) Considering the aforesaid facts, land in question has been uncultivated for the last 25 years. The applicant has breached conditions specified in the sanad of the order. Hence, the applicant has failed in utilising the land for the purpose it was allotted. Therefore, Deputy Collector, Morbi has passed order to confiscate the land to the Government. The Collector has confirmed the impugned order. As it does not appear to interfere in the said order, the following order is passed.
:: O R D E R :: The review application no. MVV/JMN/RJT/21/14 of the applicant produced before this office is rejected. The Collector's order no. land/appeal203 case no. 101/0910 dated 03/01/11 is confirmed.
Signed and sealed on 24/05/2017 By order and in the name of the Governor of Gujarat.
7. In view of the concurred findings recorded by the three revenue authorities, I see no good reason to disturb these orders in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India.
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8. Mr. Kavina, the learned senior counsel appearing for the applicants invited my attention to one Government Resolution dated 06/03/1982. This is a resolution in the form of a Policy of the Government to regularize the allotment of land, if the purpose otherwise is not served and if there is any breach of the conditions. This resolution is in the form of guidelines issued by the State Government of the revenue authority to act.
If the resolution is otherwise applicable to the applicants, he may file an appropriate application in this regard to the authority concerned. I express no opinion in this regard. The case is very clear. The land has not been utilized past couple of years and on the contrary, the same has been encroached upon. It is nothing but wastage of Government largesse.
9. In such circumstances referred to above, this application fails and is hereby rejected. The authorities concerned are directed to take appropriate steps at the earliest for removal of each and every encroachment in the land in question and secure the possession of the entire land.
Let this exercise be undertaken and completed within a period of fortnight from today.
The Registry shall notify this matter after vacation to report compliance of the directions issued by this Court. The authorities concerned shall file an appropriate report as regards the removal of the encroachment from the land in question.
(J.B.PARDIWALA, J.) aruna Page 7 of 7 HC-NIC Page 7 of 7 Created On Fri Nov 17 23:57:46 IST 2017