Gujarat High Court
Patel Ramilaben Nareshbhai vs State Of Gujarat & 5 on 6 July, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/10483/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10483 of 2017
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PATEL RAMILABEN NARESHBHAI....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
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Appearance:
MR MANISH S SHAH, ADVOCATE for the Petitioner(s) No. 1
MS. NISHA THAKORE, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 06/07/2017
ORAL ORDER
1. By this application under Article 227 of the Constitution of India, the applicant has prayed for the following reliefs :-
"A) Your Lordship may be pleased to admit and allow the present petition;
B) Your Lordships may be pleased to issue a writ of certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 21.03.2017 (Annexure-A) passed by the Secretary, Revenue Department (Respondent No.1) in Revision Application No.MVV/JMN/SBR/25/2016 and the order dated 29.12.2015 (Annexure-M) passed by the Additional Collector, the respondent No.2;
C) Pending, admission, hearing, and final disposal of this petition, be pleased to stay the implementation, operation and Page 1 of 18 HC-NIC Page 1 of 18 Created On Sun Aug 20 13:04:39 IST 2017 C/SCA/10483/2017 ORDER execution of the impugned order dated 21.03.2017 (Annexure-A) passed by the Secretary, Revenue Department (Respondent No.1) in Revision Application No.:MVV/JMN/SBR/25/2016 and the order dated 29.12.2015 (Annexure-M) passed by the Additional Collector, the respondent No.2;
D) Pending, admission, hearing and final disposal of this petition, be pleased to restrain the respondents, their agents, servants from interfering with the petitioner's title and possession over the subject matter land in any manner whatsoever;
E) The Hon'ble Court may be pleased to grant ex-parte interim relief as prayed for herein above in paragraph Nos.[C] & [D];
F) Be pleased to grant such other and further reliefs as the nature and circumstances, as the case may require in the interest of justice."
2. The dispute pertains to a plot of land bearing No.377 situated at mouje Kankrole, Tal.:Himmatnagar. It appears that in the year 1986, the State Government acquired huge parcels of land at villages Surpur, Sabli, Chhapra, Likhi, etc. for the purpose of the Guhai Jalagar Yojana (Guhai Irrigation Scheme). The villagers, who were displaced, were allotted small plots admeasuring about 100 to 150 sq.mtrs for their residential purpose as part of the rehabilitation scheme. Such allotment took place between 1986 and 1987. The plot in question, i.e. the subject plot in the present case, is one of Page 2 of 18 HC-NIC Page 2 of 18 Created On Sun Aug 20 13:04:39 IST 2017 C/SCA/10483/2017 ORDER such plots which was allotted to the original displaced person. It appears that instead of making use of the plot allotted by the State Government as part of the rehabilitation scheme, the original allottee transferred it to one 'X', and 'X', in turn, transferred it to 'Y', and 'Y', in turn transferred it to the present petitioner.
3. It appears that the original order of allotment is of the year 1986, but ultimately one modification order came to be passed dated 10.11.2003. The original allottee was one Bharwad Hamirbhai Lakhabhai. His house No.907 at mouje Sabali had to be demolished for the purpose of the project. After the modification order came to be passed in the year 2003, the said Bharwad Hamirbhai Lakhabhai sold it to 'X' immediately within one year. Thereafter, 'X' sold to 'Y', and in the year 2005, 'Y' sold it to the present petitioner by a registered sale-deed.
4. In such circumstances, proceedings came to be initiated by the Collector for canceling the allotment and forfeiting the plot with the Government. The Collector, by his order dated 29.12.2015, observed as under :
"Considering the written submissions as well as submissions made during the course of hearing by the parties associated with the case, following facts emerges.Page 3 of 18
HC-NIC Page 3 of 18 Created On Sun Aug 20 13:04:39 IST 2017 C/SCA/10483/2017 ORDER That the Additional Collector ( Irrigation ) North and Central Gujarat, Gandhinagar vide communication dated 16/09/2008 being letter no. ADC/R.H.L/ Jafa/ Vashi/ 340/08 had sought for clear opinion along with report from the Deputy Collector, Land acquisition and rehabilitation , Dharoi Vatrak and other schemes, Himmatnagar by examining the record, Gram panchayat office and office record and in respect of same, the Deputy Collector, Land acquisition and rehabilitation, Dharoi Vatrak and other schemes, Himmatnagar had vide communication R.H.L. / V/ 161/154/08, dt. 09.01.2008 had submitted inquiry report. In which it was submitted that in respect of plot no. 377, affected person namely Bharwad Hamirbhai Lakhabhai had shown his age 21 and status unmarried in the register but verification of the record, there appears to be correction in the record. Hence, it is found that wrong allotment is done.
That in regard to the Kaknol colony , meeting of leaders of affected persons about working of rehabilitation was held 21.08.1985. That following details are required to be taken into consideration.
That the land of this colony so transferred is situated in one track very near to the Himmatnagar Town.
Himmatnagar Town is the main centre of Sabarkantha District. It is developing very fast. That as per last 1981 census report, the population of Himmatnagar town is 39959 and considering the same in near future Himmatnagar Panchayat will be included within the limits of category of Nagarpalika. Therefore, the value of the allotted land of rehabilitation is comparative high than compare to lands of other villages. Moreover, the said land Page 4 of 18 HC-NIC Page 4 of 18 Created On Sun Aug 20 13:04:39 IST 2017 C/SCA/10483/2017 ORDER being adjoining to the boundary of developing Town even if said land is allotted to the affected agriculturist then there are all chances that for some or other reasons the said agriculturists in near future may in any manner convert the said lands into non agricultural land. Therefore , with intention to see that benefits of residential plots reaches maximum to the affected persons of all villages, in allotted land at Kaknol village , one Champaksinh Dhulsinh eight others of Village Likhi, Taluka Himmatnagar whose lands have gone in acquisition in Guhai scheme had filed Civil suit being Regular Civil Suit no. 116/84 before the Hon'ble Civil Judge, ( S.D. ), Himmatnagar , on 29.03.84 and had prayed for allotment for rehabilitation of all allotted land at Kanknol and had got temporary injunction on 31.03.1984. Therefore, considering the same in rehabilitation meeting held on 21.08.85 it was resolve to keep open allotment of whole allotted land at Kaknol for all affected persons of all schemes. Further, with intention to see to it that maximum affected persons gets benefits of having residential plot, it was decided to allot plots in the land in question as 1and half guntha ie. (15 x 10) =150 sq.mrts to agriculturists and 1 guntha ie. (10 x 10) = 100 sq. mrts to the non agriculturist respectively, for which proposal was also submitted to the State Government vide communication of this office being R.H.L. / guhai/ vashi/ 85/ dt. 28.08.85. That based on same, the Irrigation department of State has send yadi being RHB/Guhai/ 5885/4143(127)no.5 dt. 29/03/86 giving approval of allotting plot of one and half guntha to agriculturist and one guntha to Non agriculturist. And it was instructed as condition no.1 of yadi that in case of reduced plot area only those affected persons who voluntary gives consent in writing, were to be allotted plots. That in Page 5 of 18 HC-NIC Page 5 of 18 Created On Sun Aug 20 13:04:39 IST 2017 C/SCA/10483/2017 ORDER meeting of Guhai rehabilitation advisory meeting held on 8/4/86, when the said yadi was read, all members have happily accepted the said approval of the State Government.
That as per the State Government resolution dated 11.06.1979, before one year of the notification published under section 4, if the persons are residing in the submerged area, cultivating land, doing business trade or are earning in any other manner are included as affected persons. In present case, no such documentary evidence has been furnished by the affected person, to satisfy the afore said provision. Also no evidence has been produced regarding age and marital status. Therefore, Shri Bharwad Hamirbhai Lakhabhai is not entitled to plot.
In the present case, as per decision taken by the leaders relating to rehabilitation work meeting held on 21.08.85, affected person was entitled to 100 sq. mrts. Then also instead of 100 sq. mrts Deputy Collector, has wrongly allotted 150 sq. mrts by his order dt. 10.10.2003. Hence right from beginning and inception wrong and illegal order has been passed. As per condition no. 1 within one year construction was to be made. Instead of rehabilitation, the affected person has immediately sold the plot to third person. Hence, by doing so he has got big and precious plot instead of small plot and by selling same has done profiteering and the object of the rehabilitation has been frustrated.
Upon considering the afore said aspect, following order is passed.
ORDER :
The order of the Deputy Collector, Page 6 of 18 HC-NIC Page 6 of 18 Created On Sun Aug 20 13:04:39 IST 2017 C/SCA/10483/2017 ORDER Land acquisition and rehabilitation, Dharoi Vatrak and other schemes, HImmatnagar being order no. RHL/Guhai/ vashi/ 10/2003, dt. 10.10.2003 allotting plot to Shri Bharwad Hamirbhai Lakhabhai is cancelled.
Afore said plot in re vested back under State head and is allotted to Deputy Collector, Land acquisition and rehabilitation, Dharoi Vatrak and other schemes, HImmatnagar.
Pronounced today in the office seal and signature."
5. Being dissatisfied with the order passed by the Collector, the applicant herein preferred a Revision Application before the SSRD, and the SSRD, vide its order dated 03.04.2017, rejected the Revision Application, thereby affirming the order passed by the Collector. While rejecting the Revision Application, the SSRD observed as under :
"That upon considering the applicant's revision application, injunction application, documentary evidence so produced as well as perusal of impugned order of Additional Collector( Irrigation ), North and Central Gujarat, Gandhinagar, it appears that original allottee Bharwad Hamirbhai Lakhabhai was not entitled to get plot as per provisions of the Government Resolution dated 11.06.79 issued by the Irrigation Department. As per condition, within 1 year construction was to be done. Instead of doing construction within 1 year period, allotted plot was sold to other person and had thereby done profiteering . That object of the State of rehabilitation is frustrated. The impugned order of Page 7 of 18 HC-NIC Page 7 of 18 Created On Sun Aug 20 13:04:39 IST 2017 C/SCA/10483/2017 ORDER Additional Collector ( Irrigation ), North and Central Gujarat, Gandhinagar seems to be valid and not proper to interfere in it. Therefore, following order is passed :
Order:
Revision application of the applicant is rejected on merits. The impugned order being ADC/ RAHL/Hon'ble High Court/ SCA no. 4246/2014/ remand case/ 2015 vashi 178, dated 29.12.2015 passed by the Additional Collector ( Irrigation ), North and Central Gujarat, Gandhinagar is confirmed."
6. Mr. Shah, the learned counsel appearing for the applicant has raised manifold contentions. According to Mr. Shah, his client is a bonafide purchaser of the plot in question. His client had no idea that the plot allotted by the State Government as part of the rehabilitation scheme was subject to certain terms and conditions. His client purchased the plot considering the Sanad issued and also considering the fact that the allotment was made as if it was an old tenure land. It is submitted that almost all the original allottees disposed of the plots in this manner to various other persons and such persons are in occupation and possession of the plots as on date. It is submitted that no action has been taken by the authorities in this regard. It is submitted that, as on date, if the possession is taken over, the petitioner will lend up in difficulty, she being hails from a poor strata of the society. In Page 8 of 18 HC-NIC Page 8 of 18 Created On Sun Aug 20 13:04:39 IST 2017 C/SCA/10483/2017 ORDER such circumstances, it is prayed that the petition be admitted and the possession be protected.
7. On the other hand, this application has been vehemently opposed by Ms. Thakore, the learned Assistant Government Pleader appearing for the State. Ms. Thakore would submit that no error, not to speak of any error of law, could be said to have been committed by the authorities in passing the impugned orders. According to Ms. Thakore, no interference is warranted in exercise of the powers under Article 227 of the Constitution of India. Ms. Thakore submitted that the land was allotted to the displaced persons with a definite object. The object was to rehabilitate such displaced persons and those persons could not make profit out of it. According to the learned Assistant Government Pleader, it could be said that the State largesse has been misused or wasted.
8. Ms. Thakore, the learned AGP invited my attention to page 45, Annexure-F, which is a Sanad issued in favour of the original allottee, viz., Bharwad Hamirbhai Lakhabhai. The Sanad reads as under :
"Sanand required to be issued pursuant to the resolution being Jamin/3493/4/A dated 11.2.97 as well as dated 23.5.97 issued by the Revenue Department.
Sanand issued pursuant to the approval order being no. RHL/Guhai/plot/ Kanknol/ Page 9 of 18 HC-NIC Page 9 of 18 Created On Sun Aug 20 13:04:39 IST 2017 C/SCA/10483/2017 ORDER vashi------- dt. of this office format of kabuliyat to be given by person who intends to be khatedar :-
-:KABULIYAT:-
( Land Revenue rules 37, 43 and 52.) In terms of authority of Deputy Collector, Land Acquisition and Rehabilitation, Dharoi, Vatrak and other schemes, Himmatnagar.
I, Bharwad Hamirbhai Lakhabhai residing at Mouje Sambli, Taluka Idar, District Sabarkantha from this kabuliyat agrees to enter in account the plot admeasuring 150 sq. mrts of plot no. 377 of mouje Kaknol, Taluka Himmatnagar District Sabarkantha ( or the house describe as under or in other form available may be entered).
That said land has been granted to me from 1st date of month of ______ of Year ______ for purpose as per provisions of Bombay Land revenue code, 1879 and other law applicable following same. That I agree with the condition that the said land shall not be subject to other use as well as permit it to other use, without prior permission of the Collector and agree to pay the revenue which is legally charged from time to time in respect of said account. ( or if the payment of revenue is exempted and subsequently Government when deems necessary charges any revenue then as per order of State Government or in any other manner) legally if revenue fixed , I am agreeable to deposit.
If I breach any of the conditions of grant, then the Collector as per state Government resolutions or without any bar to the other penalty to which I may be punishable
(a) Authorize to continue my occupation Page 10 of 18 HC-NIC Page 10 of 18 Created On Sun Aug 20 13:04:39 IST 2017 C/SCA/10483/2017 ORDER on payment of penalty imposed and assessed revenue.
(b) Construction put in violation of condition of grant or allotted house or construction has to be removed within time stipulated or authorized to pass order to make changes. And upon removal within stipulated time or if changes to be made, in such situation shall be authorized to realized expenses in doing so as outstanding revenue.
Additional conditions.
(1) This personal plot is allotted as Old Tenure land.
(2) As per the category of the village whatever assessment is applicable the special charge is to be realized at the rate per sq. mrts. And other charges shall be applicable. Or whatever state government may imposed hereinafter at the rates is required to be paid by agriculturist or non agriculturist. Also are bound to act as per changes made in future.
(3) No inflammable material shall be used which may cause fire to the construction on said land.
If any of the foregoing conditions are breached then the competent authority shall be authorized to take legal recourse and moreover shall be entitled to take over of the plot as well as may also fixed the penalty as per prevailing law in force and if penalty is to be deposited then the responsible person shall be liable for same. On 26th Day of Month of February, Year 2004, at Himmatnagar.
SD/-
Bharwad Hamirbhai Lakhabhai.
SD/-
SD/-
Talati Page 11 of 18 HC-NIC Page 11 of 18 Created On Sun Aug 20 13:04:39 IST 2017 C/SCA/10483/2017 ORDER Deputy Collector, Dharoi/ Guhai Irrigation scheme, Land acq. And Rehab., Dharoi, Vatrak and other schemes, Himmatnagar."
9. Thereafter, the learned Assistant Government Pleader invited my attention to certain provisions of the Gujarat Land Revenue Rules, more particularly, Rule 43(C). Rule 43(C) reads as under :
"43-C. Conditions of grant of land to displaced persons.-
(1) Unoccupied lands suitable for building sites in the new town-ships and colonies established by Government for Displaced Persons or in other areas near existing towns specially earmarked for allotment to displaced persons may he sold or leased for 99 years to displaced persons or Co-
operative Housing Societies formed by such persons, in accordance with the following provisions:-
(i) The sale or lease of the land shall be subject to the provisions of the first paragraph of section 68 of the Code.
(ii) The land may be sold either by auction or by private arrangement. When a land is sold by private arrangement the purchase price shall be reserve price to be determined after taking into account the total price of the land acquired, the cost of the amenities to be provided on Government account and the areas to be left for purposes. When the land is leased, the lease shall be subject to the payment of occupancy price to be determined in the same manner as the purchase price.Page 12 of 18
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(iii) No displaced person, who has not registered himself under the Bombay Refugees Act, 1948, shall be entitled to purchase or take on lease a building site.
(iv) No displaced person who owns a house or a building site in the State of Bombay or anywhere else in India either in the name of his wife or dependent children shall be entitled to purchase or take on lease a building site.
(v) When land is sold on payment of the full price in one installment the occupant shall not, save with the permission of the Collector, be entitled to sell, assign or other wise transfer (except by way of lease on monthly basis) any right, title or interest in the site purchased within eleven years from the date of sale.
(vi) When the land is leased, the lessee shall not, save with the permission of the Collector be entitled to sell, assign or otherwise transfer his right under the lease within a period of thirty years from the date of the lease, but shall be at liberty to do so thereafter :
Provided that the transferee shall take the lease subject to the obligation of observing and fulfilling the conditions prescribed therein:
Provided further that the liability of the lessee under the lease shall continue until a written notice of such transfer signed by the lessee or his duly constituted agent is served upon the Collector or other officer authorised by the Collector to receive the same.
(vii) The Collector may permit the sale or other transfer under clause (v) or (vi) if he is satisfied that -Page 13 of 18
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(a) The occupant or the lessee has acquired agricultural land in a district other than that in which the site purchased or leased by him is situated;
(b) The occupant or the lessee has set us his business in and shifted his residence to a place outside the district in which the site purchased is situated;
(c) The occupant or the lessee has died and his heirs are unable, due to circumstances beyond their control, to use the land for the purpose for which it was taken:
Provided that the transferee shall undertake to abide by all the terms and conditions on which the site was purchased or taken on lease and provided further that the transfer or assignment is made to a displaced person eligible to hod land and a a price not exceeding the cost of the site (and of any building constructed thereon) plus any additional expenses incurred by the occupant.
(viii) Building shall be erected on the site within such time and subject to such building regulations as may be directed by the State Government.
(ix) The purchase price or the occupancy price in the case of a lease shall be paid in such manner as the Collector with the sanction of the State Government shall decide. Where the purchase price or the occupancy price is to be paid by installments, installments shall be paid by the occupant or the lessee, as the case may be, on or before the tenth day of the calendar month in which it falls due by making a deposit in the Government Treasury and forwarding the challan to the Collector. If the occupant or the lessee fails to pay the amount within one month from Page 14 of 18 HC-NIC Page 14 of 18 Created On Sun Aug 20 13:04:39 IST 2017 C/SCA/10483/2017 ORDER the due date, interest at the rate of ten per cent per annum shall be charged on the amount in arrears from the date of expiry of the said one month till the amount in arrear is paid.
(x) If the amount together with such interest thereon as shall be due be not paid within two months from the due or such further period not exceeding six months as the Collector may decide, or if the annexed to the sale or lease, the Collector may -
(a) resume possession of the land, and
(b) forfeit the amount already paid towards the purchase price or occupancy price, the case may be, and
(c) recover the dues as arrears of land revenue.
(2) Where the land is sold under this Rule an agreement in Form HHH-1 shall be taken from the purchaser and when the land is leased, a lease in Form HHH-2 shall be granted to the occupant:
provided that the Collector may, with the sanction of the State Government, annex such additional conditions to, or omit or vary such of the condition, in the agreement or lease as he may think fit."
10. In such circumstances referred to above, Ms. Thakore, submits that there being no merits in the petition, the same be rejected.
11. Having heard the learned counsel appearing for the parties and having considered the materials on record, the Page 15 of 18 HC-NIC Page 15 of 18 Created On Sun Aug 20 13:04:39 IST 2017 C/SCA/10483/2017 ORDER only question that falls for my consideration is, whether the authority committed any error in passing the impugned orders.
12. Having regard to the materials on record, I am of the view that the case on hand is nothing but a sheer misuse of the Government lands. The lands allotted to the original displaced persons could not have been transferred to third parties in this particular manner. The lands were allotted as part of the rehabilitation scheme. They were meant for the construction of the houses so that the displaced persons can get a shelter. It appears that all those displaced persons made profit out of the same by selling their respective plots. I find it extremely difficult to accept the argument of the learned counsel that the petitioner is a bonafide purchaser of the plot for value without notice. The Sanad, more particularly, the conditions prescribed in the Sanad, makes the picture abundantly clear. In view of the above, I should not interfere with the two orders passed by the authorities in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India.
13. At this stage, Mr. Shah, the learned counsel, submits that his client is ready and wiling to pay the market price of Page 16 of 18 HC-NIC Page 16 of 18 Created On Sun Aug 20 13:04:39 IST 2017 C/SCA/10483/2017 ORDER the plot, and on such condition, the possession may be regularized.
14. The petitioner may file an appropriate application addressed to the authority concerned in this regard, and if any such application is filed, the authority may consider the same in accordance with law at the earliest.
15. In view of the above, this application fails and is hereby rejected.
16. Mr. Shah submits that the action has been initiated after an inordinate delay of almost 17 years, and once the Sanad is issued, then thereafter, the power under Section 211 cannot be exercised by the authority. In this regard, reliance is placed on a decision of this Court in the case of Govind Murji Patel and Others Versus State of Gujarat and Others, 2007 (1) G.L.R. 671.
17. This particular matter is an eyeopener for the State Government. Huge parcels of land must have been bought over by different persons over a period of time and they must have derived huge profit by selling the same. This is one such case which has come to the notice of the authority and action has been taken. I wonder, how many such plots must be there Page 17 of 18 HC-NIC Page 17 of 18 Created On Sun Aug 20 13:04:39 IST 2017 C/SCA/10483/2017 ORDER at different places which might have been transferred in such illegal manner. It is expected of the State authorities to initiate an appropriate inquiry in this regard and try to save the State largesse from being wasted.
18. A copy of this order be provided to Ms. Thakore, the learned Assistant Government Pleader for its onward communication. This copy of the order shall also be forwarded to the Secretary, Revenue Department of the State, for necessary action.
(J.B.PARDIWALA, J.) PALLAVI Page 18 of 18 HC-NIC Page 18 of 18 Created On Sun Aug 20 13:04:39 IST 2017