Gujarat High Court
Ramesh Nagjibhai Desai vs State Of Gujarat & 4 on 1 March, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/13896/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13896 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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RAMESH NAGJIBHAI DESAI....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR KETAN D SHAH, ADVOCATE for the Petitioner(s) No. 1
MR MANAN MEHTA, AGP for the Respondent(s) No. 1 - 4
MR ASHISH H SHAH, ADVOCATE for the Respondent(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 01/03/2017
ORAL JUDGMENT
1. Heard Mr.K.D. Shah, learned advocate for Page 1 of 32 HC-NIC Page 1 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT the petitioner, Mr.Jinesh Kapadia, learned advocate for Mr.Shah, learned advocate for respondent No.5 and Mr.Mehta, learned AGP for respondents No.1 to 4.
2. In present petition, the petitioner has placed under challenge order dated 27/29.9.2004 passed by respondent No.1 in Revision Application No.68 of 2003 as well as order dated 30.7.2004 passed by respondent No.2.
3. So far as the factual background is concerned, it has emerged from the record that the petitioner, after serving Indian Army from 1986 of 2001, sought retirement. Thereafter in light of the policy decision of the State Government (vide circular dated 15.2.1989) he submitted an application to the competent authority for allotment of land. The said circular dated 15.2.1989 declares the government policy to allot land to exarmy man for purpose of agriculture. The policy, vide clause No.2(18), also provides for priority in matter of allotment Page 2 of 32 HC-NIC Page 2 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT of land to exarmy man.
3.1 After receiving the application from present petitioner, the competent authority called for report from Mamlatdar.
3.2 The Mamlatdar visited the place and collected relevant details related to the land in respect of which the application was made. 3.3 The Mamlatdar submitted report that the parcel of land is government waste land and any demand from the panchayat in respect of the said land for any purpose is not received and sufficient land is available for expansion of 'gamtal' and that, therefore, there is nothing objectionable in allotment of identified the land to the petitioner.
3.4 The competent authority considered the said report by the Mamlatdar and after taking into account the relevant facts and circumstances as well as the Mamlatdar's report and the application by present petitioner and the policy Page 3 of 32 HC-NIC Page 3 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT declared vide circular dated 15.2.1989, passed order dated 26.2.2002 and allotted the land admeasuring 7 acres at Mouje: Vaghrol, Taluka:
Dantiwada, out of Survey No.100/4 and 1 acre, out of Survey No.100/3, i.e. 8 acres of land at Mouje: Vaghrol.
3.5 By virtue of the said order dated 26.2.2002, the petitioner was obliged to pay price fixed by the Government. It is not in dispute that the petitioner paid the price.
3.6 According to the petitioner, after taking possession of the land in question, he incurred expenditure for development of the land in question to make it cultivable and then he started usage of the land for the agriculture purpose. In this context, the petitioner has averred and stated that:
"3.1 The petitioner states and submits that the petitioner has served in Indian Army from 29.1.1986 to 31.10.2001. the petitioner has also taken keen part in Kargil Battle also.
3.2 The petitioner states and submits that as per the Circular dated 15.2.1989 issued by the State of Page 4 of 32 HC-NIC Page 4 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT Gujarat, the petitioner being an Exarmy Man is entitled to get the land for the purpose of agriculture. Perusing the said circular, it is mentioned in clause 2(18) that the priority should be given in allotting the lands to the Exarmy Man, even if a land is Padtar land or Gauchar land in Kutch and Banaskantha Districts. The petitioner belongs to Banaskantha District and therefore, he is entitled to get land in the said District on priority basis.
3.3 The petitioner states and submits that the petitioner retired from service on 31.10.2001. Thereafter, the petitioner had applied for allotment of agricultural land being land bearing part of survey No.100 at Vaghrol village.
3.4 The petitioner states and submits that after the application of the petitioner, the respondent No.4 Mamlatdar, Dantiwada has conducted necessary inquiry and submitted his report to the Deputy Collector, Palanpur. After the said report, the Deputy Collector, Palanpur has passed an order dated 26.2.2002, whereby, the petitioner is granted a land admeasuring 7 Acres in survey No.100/4 and 1 acre in Survey No.100/3 of Vaghrol village. The petitioner states and submits that perusing the said order, it is clear that the respondent No.4 has mentioned that the said land which is allotted to the petitioner, is not required by the Gram Panchayat for Gamtal and therefore, the Mamlatdar has opined to grant 8 Acres land of survey No.100 of Vaghrol village to the petitioner. The petitioner states and submits that after the said order was passed, the respondent No.4 Mamlatdar, Dantiwada has issued a permission to use the said land under Section 60 of the Act. The petitioner states and submits that thereafter, on the same day, Circle Officer, Dantiwada has given a possession to the petitioner vide possession receipt dated 15.3.2002. The petitioner states and submits that in pursuance of the permission of the Mamlatdar, Dantiwada as well as possession receipt issued by Circle Officer, Dantiwada dated 15.3.2002, the petitioner had taken the possession of the land. The petitioner states and submits that after taking over the possession of the land, the petitioner had invested approximately Rs.3.5 lacs in levelling and developing the land and for making it cultivable and for purchasing a tractor on loan. The petitioner states and submits that after getting the possession, the petitioner was regularly cultivating the land and was taking water from the Tubewell of Gujarat Water Resources and Development Corporation. The petitioner states and submits that revenue entry of handing over possession to the petitioner was mutated in the Revenue Record on 5.3.2002 being Entry No.955.
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3.5 The petitioner states and submits that land bearing Survey No.100/3 and 100/4 was belonging to the State Government and before granting the land, the proper care has been taken by the respondent No.3 for making necessary inquiry and of calling reports through Mamlatdar, TalaticumMantri of Panchayat and other field officer. The petitioner states and submits that after taking into consideration all the reports / inquiries, it was found that, the said land is not required for any other public purposes and the sufficient land is available for the future requirement of Gamtal. The petitioner says that even village people have also objected to expansion of gamtal in the land in question.
3.6 The petitioner states and submits that as stated earlier, the possession was handed over to the petitioner on 15.3.2002 and the petitioner has started to develop the land immediately. Thereafter, the respondent No.5 i.e. Sarpanch of the village on 15.5.2003 preferred an appeal before the respondent No.2 challenging the order dated 26.2.2002 passed by the respondent No.3, wherein, the land is granted to the petitioner.
3.7 The petitioner states and submits that hearing of the appeal being Appeal No.7 of 2002 preferred by the Sarpanch, Vaghrol Gram Panchayat respondent No.5 was took place on 30th July, 2003 by the respondent No.2 and the said appeal was partly allowed and the order passed by the respondent No.3 dated 26.2.2002 was quashed and set aside and the matter was remanded to the respondent No.3.
3.8 The petitioner states and submits that being aggrieved and dissatisfied with the above referred order dated 30.7.2003, the petitioner preferred Revision Application No.68 of 2003 before the respondent No.1. The petitioner states and submits that along with said revision application, the petitioner has preferred an application for injunction. The petitioner states and submits that when the Revision Application was preferred, the petitioner was in possession of the land. The petitioner states and submits that the respondent No.1 was pleased to hear the injunction application and passed an order dated 14/18.8.2003, whereby, the statusquo with regard to land was granted."
3.7 It appears that the panchayat felt aggrieved by the said allotment and therefore, Page 6 of 32 HC-NIC Page 6 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT the representation signed by some of the residents of the Village: Vaghrol was submitted to the Talati and thereafter the Sarpanch of Gram Panchayat, Vaghrol filed appeal before the Collector which was registered as Appeal No.7 of 2002.
3.8 The Collector, vide its order dated 8.8.2003, partly allowed the appeal whereby the Collector set aside the order dated 26.2.2002 passed by the Deputy Collector allotting the land to the petitioner and remanded the proceedings for initiating fresh process of allotting other / alternate land to the petitioner.
3.9 Feeling aggrieved by the said order dated 8.8.2003, present petitioner filed Revision Application No.68 of 2003 before the State Government.
3.10 The Secretary, vide order dated 8.8.2003, rejected the revision application. The petitioner is aggrieved by the said orders. Hence Page 7 of 32 HC-NIC Page 7 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT this petition.
4. After hearing the petition, the Court admitted the petition and also granted adinterim relief vide order dated 19.10.2004. 4.1 In view of rival contentions raised by learned advocates for the petitioner and the respondents, it has emerged that the observations by the Court while admitting the petition and granting adinterim relief as well as the observations by the Court, while confirming the interim relief vide order dated 18.3.2005, are relevant. Therefore, the said orders dated 19.10.2004 and 18.3.2005 are quoted below:
Order dated 19.10.2004:
"Rule. 2. Heard Mr.Mehta, learned Counsel for the petitioners and Mr.Jhaveri, learned Counsel appearing by caveat for adinterim relief. I would have recorded reasons, however, Mr.Jhaveri, learned Counsel appearing for the caveator has requested not to record the reasons since the same may prejudice the case of the Gram Panchayat caveator at the time of confirmation of the interim relief. Under the circumstances, by ad interim order, the order passed by the Collector dated 3072003 and its confirmation thereof by the State Government as per order dated 2729/9/2004 (Annexures "B" and "A" respectively) shall remain stayed and suspended. As a consequence of this order, the grant of land to the petitioner shall continue, however, if the land is already granted to the Gram Panchayat or is Page 8 of 32 HC-NIC Page 8 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT reserved for Gram Panchayat of Village Vaghrol by the competent authority under the Bombay Land Revenue Code, the statusquo shall be maintained. 3. Notice as to interim relief returnable on 25.10.2004. Mr.Jhaveri, learned Counsel waives service of notice for respondent No.5 Caveator. Direct service for rest of the respondents.
Order dated 18.3.2005:
Heard Mr. Mehta for the petitioner, Mr. Mengdey, learned AGP for the respondents nos 1 to 4 and Mr. S.K. Jhaveri, learned Senior Advocate appearing with Ms. Jirga D. Jhaveri for the respondent no.5, on the question of interim relief. #. This Court on 19.10.2004, while passing adinterim order had observed that; "... grant of the land to the petitioner shall continue. However, if the land is already granted to the Gram Panchayat or is reserved for Gram Panchayat of village Vaghrol by the Competent Authority under the Bombay Land Revenue Code, statusquo shall be maintained." #. Mr. Jhaveri, learned Senior Advocate for the respondent no.5 Gram Panchayat, attempted to submit that no formal order is required for reserving area for village site or for including the area in village site and the observations of the Collector in the order can be said as sufficient, more particularly, when the Gram Panchayat has already resolved for including the area in the village site. Prima facie, the said contention of Mr. Jhaveri cannot be accepted on the face of the provisions of Section 7A of the Bombay Land Revenue Code, which provides for the power to alter and add limits in village which would include village site. In absence of any specific order, for including the area in the village site or reserving the area for village site, merely because the Gram Panchayat has passed resolution subsequently after the grant, it cannot be said that the grant, which is already made and the petitioner who altered his position, can be cancelled. #. Mr. Jhaveri, the learned Senior Advocate for the respondent no.5 also attempted to submit that the petitioner was allotted land as Ex army man and the requirement of grant is that he should not have other income. He submitted that the petitioner is working as security guard and is having income of approximately Rs.2500/ per month and as he is having income to earn his livelihood, the land should not have been granted or in any case, could not have been continued and in his submission, in any case, this Court may not continue the adinterim order. Prima facie, the said contention cannot be said as valid for modification of the adinterim order and/or for vacating of the order, because, the impugned orders are not passed by the authority on the ground that that any Page 9 of 32 HC-NIC Page 9 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT facts were suppressed by the petitioner at the time of allotment and only aspect for cancellation is the reservation of the land for village site, for which there is no order. #. Even otherwise also, the land is allotted to the petitioner and the petitioner who is Exarmy man has cultivated the land. After the grant and subsequently, since the Gram Panchayat has resolved for including the area in the village site, if the authority has cancelled it, it cannot be said that such action on the part of the authority was by way of policy decision and this Court should not interfere in such policy decision as sought to be canvassed by Mr. Jhaveri. As such, exercise of the power by the authority for cancellation of the grant is an administrative action of the State Government, which may call for judicial scrutiny if a case is made out by now. It is settled that even if the policy decisions are there, such policy must meet with the test of reasonableness as per Article 14 of the Constitution and, therefore, prima facie, such contention raised on behalf of the respondent no.5 for vacating of the interim relief, cannot be said to be proper at this stage, more particularly, when the petitioner is cultivating the land and is earning livelihood therefrom. #. In view of the above, adinterim relief granted earlier is continued with the clarification that the impugned orders Annexure:B and A shall remain stayed and suspended till final disposal of the petition and consequently, grant of the land to the petitioner shall continue until final disposal of the petition. #. Mr. Jhaveri, learned Senior Advocate for the respondent no.5 prays for suspending the operation of the order for two weeks so as to enable his client to approach before the higher forum. Considering the facts and circumstances as the adinterim relief was already granted and as even today, the Gram Panchayat has not been able to show any order reserving the land as village site, and as by virtue of the earlier ad interim order, operation of the impugned orders was suspended and grant was continued and as the same is reiterated as the position is made clear while confirming the adinterim order with the clarification, the said request is rejected."
5. At this stage, it is appropriate to mention that the order dated 18.3.2005 was taken in appeal before Hon'ble Division Bench. The said appeal, i.e. Letters Patent Appeal No.468 of 2005 Page 10 of 32 HC-NIC Page 10 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT came to be dismissed by Hon'ble Division Bench vide order dated 1.4.2005. The said order dated 1.4.2005 reads thus:
"This appeal is directed against order dated 18.3.2005 by which the learned Single Judge confirmed adinterim order dated 19.10.2004 passed in relation to the grant of land made in favour of respondent No.1 (original petitioner). A perusal of the record shows that in the writ application filed by him, respondent No.1 has prayed for quashing order dated 30.7.2004 passed by Collector, Banaskantha and order dated 27/29.9.2004 passed by the State Government in the matter of cancellation of land allotted to him as an Ex serviceman. He averred that being an Exserviceman, Deputy Collector, Palanpur had allotted him land in village Vaghrol, Taluka Dantiwada, District Banaskantha but in a revision filed by Sarpanch, Gram Panchayat, Vaghrol, the allotment was indirectly annuled by Collector, Banaskantha vide his order dated 30.7.2004 and the case was remanded to Deputy Collector, Palanpur for allotment of alternate land. He further averred that the State Government arbitrarily dismissed the revision petition filed against order of the Collector. While issuing notice of motion the learned Single Judge directed that grant made in favour of the writ petitioner (respondent No.1 herein) shall continue with the rider that if the land has already been granted to the Gram Panchayat or is reserved for the Gram Panchayat of Village Vaghrol by the competent authority under the Bombay Land Revenue Code, then the statusquo shall be maintained. After hearing Counsel for the parties, the learned Single Judge confirmed the ad interim order in the following terms: "In view of the above, adinterim relief granted earlier is continued with the clarification that the impugned orders Annexures: B and A shall remain stayed and suspended till final disposal of the petition and consequently, grant of the land to the petitioner shall continue until final disposal of the petition." We have heard Shri Harin P Raval at considerable length and perused the record. Learned Counsel emphasised that the impugned order should be declared as vitiated by an error because while granting interim relief to respondent No.1, the learned Single Judge ignored the fact that the suit filed by him had been dismissed by the Civil Court. Learned Counsel pointed out that the land is in the possession of the Gram Panchayat, but by taking advantage of the interim order respondent No.1 is likely to forcibly occupy the same. In our opinion Page 11 of 32 HC-NIC Page 11 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT there is no merit in the argument of the learned Counsel and we do not find any justification whatsoever to interfere with the interlocutory order passed by the learned Single Judge. A careful reading of the judgement of the Civil Court shows that the rights of the parties have not been adjudicated by the Court concerned in view of the directions given by this Court in the Special Civil Application filed by the Gram Panchayat. Therefore the same cannot be relied for the purpose of holding that respondent No.1 does not have any right over the land in question. We are further of the view that the conditional order passed by the learned Single Judge does not, in any manner adversely affect the interest of the appellant. As a matter of fact if the interim order is vacated, respondent No.1 who is an Exserviceman and claims to be in cultivating possession of the land in dispute is bound to suffer irreparable injury because he will be deprived of the only source of livelihood. For the reasons mentioned above the appeal is dismissed. In view of the dismissal of the Letters Patent Appeal, Civil Application No. 2717 of 2005 filed by the appellant for staying the operation of the order of the learned Single Judge is also dismissed."
6. In this background, Mr.Shah, learned advocate for the petitioner would contend that the petitioner - exarmy man, is entitled for allotment of land in light of the State Government's policy declared vide circular dated 15.2.1989. He submitted that it was on strength of the said policy that the petitioner submitted application dated 11.1.2002 for allotment of land. According to learned advocate for the petitioner, after due verification of relevant facts and after considering the report of the Mamlatdar the Deputy Collector accepted the Page 12 of 32 HC-NIC Page 12 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT petitioner's application and allotted 8 acres of land out of Survey Nos.100/4 and 100/3 at Mouje:
Vaghrol. He submitted that the petitioner paid the price determined by the competent authority and thereafter the petitioner has incurred substantial expenses towards development of the land and for making it cultivable. He also claimed that since 2002, the petitioner is in possession and occupation of the land and has been cultivating the land and using it for agricultural purpose. He further submitted that the impugned orders suffer from vice of violation of principles of natural justice inasmuch as the revision application was listed for first hearing on 15.9.2004 and according to intimation to the parties, the proceedings were adjourned to 30.9.2004, however, the concerned authority accepted the written arguments from other side without intimation to the petitioner and without supplying copy thereof to the petitioner and the authority proceeded to pass order on 27.9.2004, i.e. three days before the scheduled date of Page 13 of 32 HC-NIC Page 13 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT hearing. He also emphasized the fact that while the petitioner was not aware about these facts, the respondents not only had knowledge about the order, but the respondents even filed caveat in this Court on the very same day when the order was passed, i.e. on 30.9.2004. With such details, learned advocate for the petitioner assailed the order also on ground of breach of principles of natural justice.
7. Mr.Kapadia, learned advocate for the respondents opposed the submissions by the petitioner. He submitted that the respondent panchayat has never opposed allotment of land to the petitioner, however, the objection of the panchayat is restricted to the particular parcel of land which is allotted to the petitioner, i.e. Survey Nos.100/3 and 100/4 inasmuch as the said parcel of land is attached to or part of the 'gamtal' and the disputed allotment would restrict expansion of gamtal. He further submitted that not only in case of the petitioner Page 14 of 32 HC-NIC Page 14 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT but in 1990 when adjoining was also opposed by the panchayat lands were allotted to other persons (exarmymen) and at that time also the panchayat had raised objection on the very same ground and considering the ground of objection, the said allotments were cancelled and alternate lands were allotted to those applicants in Survey No.46. Mr.Kapadia, learned advocate for the respondents opposed the allotment of land to present respondent with the suggestion and offer that the alternate land may be allotted to the petitioner in City Survey No.46 or at any other location so that the land of 'gamtal' may not be affected. He further submitted that the claim of the petitioner that he has invested substantial amount for the purpose of development of land is unjustified inasmuch as the major part of the amount said to have been spent by the petitioner is consumed in purchasing tractor which is an asset acquired by the petitioner and therefore, the same should not be taken into consideration.
He also submitted that the petitioner had filed a Page 15 of 32 HC-NIC Page 15 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT suit, i.e. Regular Civil Suit No.268 of 2003 with prayer for permanent injunction. According to Mr.Kapadia, learned advocate for the respondent, the learned trial Court rejected the application for interim relief that the learned trial Court did not accept the petitioner's claim that he holds possession of the land. He submitted that the petitioner failed before the learned trial Court to establish his claim about possession of land in question and that, therefore also there is no justification to interfere with the order which is impugned in present petition. He submitted that even as of now, the case for alternate allotment of land can be considered. Mr.Kapadia, learned advocate for the respondent submitted that the order passed by the Deputy Collector is bad in law because the said order is passed without granting opportunity of hearing to the panchayat.
8. According to learned AGP, there is no error in the orders and the petition may not be Page 16 of 32 HC-NIC Page 16 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT entertained.
8.1 However, the learned AGP fairly clarified one aspect, i.e. the land in question is government waste land and it does not vest in the panchayat and therefore, the panchayat's contention that the order of allotment of land was passed without hearing the panchayat and therefore, the same deserves to be set aside, is illfounded.
8.2 According to learned AGP, since the land in question is government waste land, there was no question of hearing the panchayat before the order allotting land to the petitioner.
9. I have considered rival submissions and material on record as well as impugned orders.
10. From rival submissions and from material on record, it has emerged that there is no dispute with regard to the fact that the petitioner is exarmy man and that he retired from Army after service of about 15 years.
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10.1 It is also not in dispute that at the
relevant time a policy for priority in allotment of land to exarmy man was declared by the State Government vide circular dated 15.2.1989 and the said policy was in force at the relevant point of time.
10.2 It is not in dispute that on or around 11.1.2002, the petitioner herein submitted application to the Mamlatdar for allotment of land in light of the policy declared by the State Government.
10.3 It is not in dispute that the land which came to be allotted to the petitioner is government land, i.e. land in question, before the allotment.
10.4 Differently put, the said land is not panchayat land.
10.5 It is not in dispute that after considering the petitioner's application and Page 18 of 32 HC-NIC Page 18 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT before taking any decision and before passing the order the Deputy Collector, being competent authority, had called for site report from the Mamlatdar.
10.6 The Mamlatdar submitted his report stating relevant details and with the remark that anything objectionable against the petitioner's request for allotment of land is not found either from the record or from the position at the site and that there is no impediment in considering the petitioner's application.
10.7 It is also not in dispute that the Deputy Collector passed the order dated 26.2.2002 after considering the provisions under the policy as well as the report by the Mamlatdar and other relevant facts and allotted the land admeasuring 7 acres at Mouje: Vaghrol, Taluka: Dantiwada, out of Survey No.100/4 and 1 acre, out of Survey No.100/3, i.e. 8 acres of land at Mouje: Vaghrol, Taluka: Dantiwada.
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10.8 It is not in dispute that after the said
order, the petitioner paid the price determined by the competent authority.
11. After the competent authority allotted the land to the petitioner vide order dated 26.2.2002 and after the petitioner paid the price and after formalities were completed, the panchayat raised objection and filed revision application before the Collector. The application was regitered as Application No.7 of 2002. After considering rival submissions, the appellate authority (i.e. the Collector) passed the order dated 8.8.2003 and cancelled the allotment with the clarification and further direction that appropriate procedure for allotment of alternate land (instead of the land which was originally allotted to the petitioner) may be undertaken and the petitioner may be allotted alternate land.
12. For the said purpose, the Collector remanded the proceedings with the Deputy Collector. Feeling aggrieved by the said order Page 20 of 32 HC-NIC Page 20 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT dated 30.7.2003 / 8.8.2003, the petitioner approached the learned Tribunal by filing Revision Application No.68 of 2003.
13. The learned Tribunal considered the application and vide order dated 27.9.2004 rejected the revision application.
14. One of the contentions which was raised before the learned Tribunal was to the effect that the panchayat had passed resolution against the allotment of land to the petitioner. 14.1 However, in this context, two aspects are relevant and deserve to be taken into consideration.
14.2 First being the fact that at any stage, i.e. either before the Deputy Collector or before the Collector or even before the learned Tribunal, the panchayat did not place on record, rather the panchayat failed to place on record, the socalled resolution allegedly passed by the panchayat.
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14.3 Copy of any resolution is not placed on
record of this petition as well.
14.4 Learned advocate for the respondent
panchayat could not substantiate and support the submission that the panchayat has passed any resolution opposing the allotment. 14.5 Further, even if it is assumed that such resolution was passed, it would not have any relevance in view of the fact that the land in question is not panchayat land, but the land was government land and that, therefore, there was no question of opportunity of hearing to the panchayat and/or of any objection by the panchayat against the allotment. Therefore, the learned Tribunal committed error in being influenced by the said submission of the panchayat.
15. Learned advocate for the respondent panchayat repeatedly and vehemently raised the objection that the land in question is situate Page 22 of 32 HC-NIC Page 22 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT abutting the gamtal and that, therefore, such allotment to the petitioner it would cause hindrance in expansion and development of the village and would cause difficulties for the residents of the village. So as to support the said submission, learned advocate for the respondent panchayat submitted that in past on previous occasions, the panchayat had raised similar objection on same ground when the lands from Survey No.100/3 and/or Survey No.100/4 were alloted to other persons.
15.1 In this context, it is pertinent to note that learned advocate for the respondent panchayat submitted that such objections were raised in or around 1990 and therefore, this Court inquired from the learned advocate for the respondent panchayat to show any material from the record which would demonstrate that during the interregnum i.e. from 1990 to 2002, any actual development or expansion around or beyond said land, actually took place or not.
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15.2 In response to the said query, learned
advocate for the respondent panchayat conceded the fact that during the interregnum i.e. from 1990 of 2002 any development or expansion of the gamtal has not taken place and with regard to the said survey number as well as with regard to 'gamtal' the same position i.e. status quo as in 1990 still continues and there is no alternation, development or expansion.
15.3 Thus, the very basis of the objection by the panchayat against the allotment of land to the petitioner i.e. allotment would obstruct expansion or development or would cause difficulty in use of gamtal is belied and such objection on the basis of the panchayat's objection is not made good / is not substantiated and the said objection is not only without merits but is sheer excuse without factual basis or support and does not deserve to be entertained.
16. While considering the objections by the Page 24 of 32 HC-NIC Page 24 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT respondent panchayat, the learned Tribunal, unfortunately, did not examine these aspects and thereby the learned Tribunal erred in its decision by ignoring above discussed aspect and by ignoring the fact that neither during the period from 1990 to 2002 nor during the period after allotment of land (to the petitioner) in 2002 i.e. from 2002 until the time when the learned Tribunal passed order in 2004, any development or expansion did not occur and had not taken place.
16.1 From the reply by learned advocate for the petitioner, it has also emerged that even after 2004 until now i.e. 2017 any expansion or any development of 'gamtal' or towards village has taken place and during entire period i.e. from 1990 to 2017 the same position and status with regard to gamtal has continued.
17. Therefore, the decision by the learned Tribunal, which proceeds on the premise that the panchayat's objection on account of gamtal is Page 25 of 32 HC-NIC Page 25 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT justified, does not survive and cannot be sustained.
18. When the respondent panchayat has failed to justify its contention or ground of objection on the premise that the allotment of land would obstruct expansion and development and the panchayat has also failed to demonstrate that during interregnum any expansion or development has actually taken place, there is no basis or justification to set aside the allotment in favour of the petitioner on the ground raised by the respondent panchayat.
19. The learned Tribunal has not recorded any other reason in support of its decision. The learned Tribunal has based its order on the said solitary ground i.e. the objection of the residents of the village and the panchayat and on ground of gamtal and requirement of expansion and development.
20. It is pertinent to mention that the Page 26 of 32 HC-NIC Page 26 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT petitioner placed various details on record before the learned Tribunal including the details about the expenditure incurred by him and the details about agricultural activity which he carries on at the land in question, however, the learned Tribunal failed to consider the said details and submissions by the petitioner and allowed itself to be influenced by the objection raised by the panchayat on ground of gamtal, though the panchayat, actually, failed to justify its objection on said ground.
21. Of course, during hearing of this petition, learned advocate for the respondent panchayat made an attempt to contend that the petitioner does not undertake any agricultural activity at the land in question. However, the documents and other material which are placed on record by the petitioner, give out that the petitioner carries on agricultural activity at the land in question. To support his case, the petitioner has placed on record several Page 27 of 32 HC-NIC Page 27 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT photographs as well as Form No.7/12 which gives out the details of crop / yield from the land in question. The petitioner has also placed on record electricity bill to support the claim that he uses electricity for drawing water for agricultural activity. Therefore, the panchayat's objection on the said ground is also not sustainable.
22. The panchayat raised contention before the learned Tribunal viz. that the petitioner filed civil suit and the learned Civil Court did not grant interim relief which means that the petitioner failed to establish possession and occupation of the land in question. However, learned advocate for the petitioner informed this Court that the order passed by the learned trial Court rejecting the interim relief application (Exh.5) in Civil Suit No.268 of 2003 was carried in appeal i.e. Civil Misc. Appeal No.23 of 2003 and the said appeal came to be allowed vide order dated 2.4.2005. The relevant observations in the Page 28 of 32 HC-NIC Page 28 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT order in said Civil Misc. Appeal No.23 of 2003 read thus:
"Appellant has come out with case that 888 acres of land of S.Nos.100/3 and 100/4 was given to him in grant by the Dy. Collector and he is in legal possession of the suit properties and that defendants have no right to disturb his possession in any manner. The defendants have defended the allegation stating that the order of grant has been reversed by the ld. Collector in appeal an over that though plaintiff preferred appeal before Sp. Secretary, but when defendant approached high court, the order of status qua as on 18.8.2003 was passed, and the trial court has ordered that as the High court has passed order of status quo plaintiff has no case and no order below exh.5 is required to be passed. Before me also both the learned advocates for the respective parties have acceded that the matter is before Hon'ble H.C. In civil application No.13896 of 2004 Hon'ble H.C. Has passed order of status quo on 18.3.2005 till final disposal of the petition. In view of para 5 of the above referred order of Hon'ble H.C. The grant of land to the plaintiff and possession of the land is stated in that view of the it can be said that the possession of the land is with the plaintiff / appellant and hence, it is required to be protected at this stage, therefore it can be said that the plaintiff has prima facie case and in this view of the matter if the order of status quo is passed it will meet the ends of justice and hence deciding issue no.1 in affirmative. I pass following order:
ORDER The appeal is allowed and respondents are directed to maintain status quo of the suit property till final disposal of the suit. Costs in cause."
22.1 Thus, the said contention or objection also fails and said ground does not survive and does not help the panchayat.
22.2 Learned advocate for the petitioner also
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submitted and clarified that the suit is still pending before the learned trial Court. 22.3 In view of the said order dated 2.4.2005 passed by the appellate Court in Civil Misc. Appeal No.23 of 2003, the contention / objection raised by the panchayat before the learned Tribunal on the ground that the petitioner is not in possession / occupation of land in question also, does not survive.
23. Above discussed aspects have not been considered by the learned Tribunal and the learned Tribunal has, as mentioned above, proceeded on the solitary ground while rejecting the petitioner's revision application (i.e. on the ground that the panchayat raised objection in interest of the residents of village and on the ground that the allotment would cause difficulty and obstruct for development and expansion of gamtal). However, foregoing discussion has brought out that the said ground or objection is without merit.
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24. The fact that out of Survey No.100 land admeasuring 146.24 guthas is with the panchayat and the land admeasuring 40 acres is available for gamtal, is also not considered by learned Tribunal. Unfortunately, the said aspect and details are also ignored by the learned Tribunal.
25. In light of the foregoing reasons and above discussion, the order passed by the learned Tribunal deserves to be set aside and the order dated 26.2.2002 passed by the Deputy Collector allotting land admeasuring 7 acres at Mouje:
Vaghrol, Taluka: Dantiwada, out of Survey No.100/4 and 1 acre, out of Survey No.100/3, i.e. 8 acres of land at Mouje: Vaghrol, deserves to be restored.
26. Therefore, following order is passed:
(a) The petition is allowed.
(b) The order dated 27/29.9.2004 passed by respondent No.1 in Revision Application Page 31 of 32 HC-NIC Page 31 of 32 Created On Sat Aug 12 03:14:34 IST 2017 C/SCA/13896/2004 JUDGMENT No.68 of 2003 as well as order dated 30.7.2004 passed by respondent No.2 are set aside.
(c) The order dated 26.2.2002 passed by the Deputy Collector allotting land admeasuring 7 acres at Mouje: Vaghrol, Taluka:
Dantiwada, out of Survey No.100/4 and 1
acre, out of Survey No.100/3, i.e. 8 acres of land at Mouje: Vaghrol is restored.
Rule is made absolute to the aforesaid extent.
(K.M.THAKER, J.) Bharat Page 32 of 32 HC-NIC Page 32 of 32 Created On Sat Aug 12 03:14:34 IST 2017