Gujarat High Court
Faizmohammed Khamisabhai Sindhi vs State Of Gujarat - Through Special ... on 4 December, 2023
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/18049/2015 ORDER DATED: 04/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 18049 of 2015
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FAIZMOHAMMED KHAMISABHAI SINDHI & 3 other(s)
Versus
STATE OF GUJARAT - THROUGH SPECIAL SECRETARY
(APPEALS) & 1 other(s)
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Appearance:
MS ARCHANA R ACHARYA(2475) for the Petitioner(s) No.
1,2,3,4
MR ADITYASINH JADEJA ASSISTANT GOVERNMENT PLEADER for
the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 04/12/2023
ORAL ORDER
1. By way of this petition, the petitioners have prayed for quashing and setting aside the order dated 29/30.9.2015 passed by the respondent No.1 Special Secretary (Appeals), Revenue Department, Ahmedabad in Revision Application No.MVV/JAMAN/BANAS/11/2015 to the extent of remanding the matter back to respondent No.2 Collector and has further prayed for directions to the respondent No.2 to issue Certificate of Page 1 of 16 Downloaded on : Thu Dec 07 20:37:49 IST 2023 NEUTRAL CITATION C/SCA/18049/2015 ORDER DATED: 04/12/2023 undefined Agriculturists to the petitioners, in view of Government Resolution dated 1.7.2009 and recommendation of Deputy Collector dated 31.7.2013.
2. I have heard learned advocate Ms. Archana Acharya appearing for the petitioners and learned Assistant Government Pleader Mr. Adityasinh Jadeja appearing for the respondent - State.
3. The short dispute here is that the petitioner purchased a piece of land admeasuring 31 acres 23 gunthas situated at the sim of Village Iqbalgadh, Taluka Amirgadh, District Banaskantha, on 1.2.1961 by way of a registered sale deed from the original owner. The land was sold in favour of as many as ten persons out of which Sindhi Khamisa Saya happens to the father of the petitioners. In respect of the aforesaid sale, a mutation entry No.133 was certified on 30.4.1961 in the revenue record.
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4. According to the petitioners, pursuant to the aforesaid registered sale deed, the petitioner started cultivating the land and petitioner was also issued a Khedut Khata Vahi and name of father of the petitioner was reflected as an agriculturist in the aforesaid Khedut Khata Vahi. From time to time, the land was mortgaged by the petitioners for various purpose and there was redemption of mortgaged and the same was reflected in the revenue record. The petitioner has also received the compensation, in view of acquisition of land, for the purpose of laying the Mundra Delhi Pipeline Project, which is passing through the land of the petitioner as stated in the petition. In the year 2008, some of the persons interested in the land, whose names are stated in the petition relinquished their rights over the subject land in favour of the petitioner No.2 by filing an application as well as affidavit and a mutation entry No.2128 was mutated in the revenue record. Ultimately, the petitioner sold the remaining portion of Page 3 of 16 Downloaded on : Thu Dec 07 20:37:49 IST 2023 NEUTRAL CITATION C/SCA/18049/2015 ORDER DATED: 04/12/2023 undefined land i.e. 46,843 sq. mtrs of land to one Agrawal Anishaben Rajubhai and Agrawal Sangeetaben Manojbhai by way of a registered sale deed bearing sale deed No.39, in pursuant to sale deed dated 14.3.2012 for which mutation entry No.2516 was mutated and certified also.
5. On 1.9.2012, the petitioners filed an application before the Collector, Banaskantha for issuance of certificate of agriculturist. According to the petitioner, even the Mamlatdar and Deputy Collector, both opined in favour of the Collector. However, the Collector vide order dated 21.9.2013 rejected the application of the petitioner for issuance of the certificate as an agriculturist on the ground that prior to purchase of the land, the father of the petitioner was holding agricultural land at Village Madavav, Taluka Chohtan, District Badmer (Rajsthan) and therefore, the petitioner cannot be considered as an original agriculturist of Gujarat State. The petitioner challenged the Page 4 of 16 Downloaded on : Thu Dec 07 20:37:49 IST 2023 NEUTRAL CITATION C/SCA/18049/2015 ORDER DATED: 04/12/2023 undefined aforesaid passed by the Collector, Banaskantha by filing Revision Application No.120 of 2013 before the Special Secretary (Appeals). However, vide 17.9.2014, the aforesaid revision application was allowed and order dated 21.9.2013 passed by the Collector, Banaskantha was quashed by the Special Secretary and matter was remanded back to the Collector, Banaskantha for taking a fresh decision.
6. Pursuant to the aforesaid order dated 17.9.2014 passed by the SSRD, the Collector, Banaskantha once again heard the matter as the case was registered as Remand Case No.1 of 2014 and passed an order on 9.2.2015 by rejecting the application of the petitioners and by holding that the petitioners are agriculturist of State outside Gujarat and hence, the certificate of the agriculturist as prayed for by the petitioners cannot be granted.
7. The petitioners challenged the aforesaid order by preferring Special Civil Application No.13995 Page 5 of 16 Downloaded on : Thu Dec 07 20:37:49 IST 2023 NEUTRAL CITATION C/SCA/18049/2015 ORDER DATED: 04/12/2023 undefined of 2015.(Annexure-A5, page 87).
8. The petitioner pursuant to the aforesaid order preferred a revision application before the SSRD wherein the relief was not granted. There was no interim relief granted in favour of the petitioner and therefore, the petitioners preferred Special Civil Application No.13995 of 2015 (Annexure-A5, page 87), which was disposed of vide order dated 1.9.2015 by directing the Secretary Revenue Department Appeals to hear and final decide the revision application preferred by the petitioners.
9. Pursuant to the said order, the Secretary Revenue Department heard the petitioners and passed the impugned order dated 30.9.2015 whereby the matter was once again remanded back to the Collector, Banaskantha by quashing and setting aside the order dated 9.2.2015 passed by the Collector, Banaskantha. The aforesaid order is under challenged by way of this petition. Page 6 of 16 Downloaded on : Thu Dec 07 20:37:49 IST 2023
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10. During the pendency of petition, which is pending for admission hearing since 2015, that is for almost eight years, the Co-ordinate Bench of this Court on 23.6.2023 passed an interim order which reproduced as under :-
"Learned Assistant Government Pleader Mr.Nikunj Kanara submitted that now as per the new policy of the government, the present petitioners may approach the concerned authority and submit application afresh on- line.
Learned advocate Ms.Acharya for the petitioners, in turn, submitted that petitioners shall file application within a period of one week from today.
If any such application is filed, the concerned authority is hereby directed to take appropriate decision within a period of four weeks thereafter and place his decision on record before this Court on the next date of hearing.
Stand over to 07th August,
2023."
11. It is reported today by learned Assistant Government Pleader Mr. Adityasinh Jadeja by way of affidavit in reply on behalf of respondent No.2, which is taken on record and on the basis Page 7 of 16 Downloaded on : Thu Dec 07 20:37:49 IST 2023 NEUTRAL CITATION C/SCA/18049/2015 ORDER DATED: 04/12/2023 undefined of the aforesaid affidavit in reply, learned Assistant Government Pleader Mr. Adityasinh Jadeja submitted that pursuant to the interim order dated 23.6.2023, the petitioner had made an application for issuance of certificate as an agriculturist before the Deputy Collector, Danta. However, vide order dated 4.8.2023, the aforesaid application preferred by the petitioner has been rejected as the petitioner was found to be agriculturist of Rajasthan prior to 1961 and could not produce anything to indicate that he was an agriculturist of State of Gujarat.
12. In the aforesaid factual background, the matter was heard today.
13. Learned advocate Ms. Archana Acharya appearing for the petitioners from the documents available on record and more particularly the Khedutpothi issued at the relevant point of time tried to point out that the name of the father of the petitioner was their in the Khedutpothi. Page 8 of 16 Downloaded on : Thu Dec 07 20:37:49 IST 2023
NEUTRAL CITATION C/SCA/18049/2015 ORDER DATED: 04/12/2023 undefined After the land was sold by the petitioners in the year 2012 as per the Government Resolution dated 1.7.2009 whereby the time to purchase the agricultural land was extended for a period of two years from earlier period of 180 days. The petitioners are entitled to get the certificate as an agriculturist. However, the aforesaid circular was not taken into consideration by the authorities and therefore, when the matter has been remanded back in the year 2015 by the Special Secretary (Appeals) considering the fact that this was the second remand when the documents indicating that the petitioner was an agriculturist are on record , the Special Secretary was not justified in remanding the matter back and therefore, she submitted that this Court may consider the documents indicating that the petitioner is an agriculturist and direct the State Government to issue certificate as an agriculturist in favour of the petitioner. She further submitted that in the past there opinions by the Mamlatdar and Deputy Collector Page 9 of 16 Downloaded on : Thu Dec 07 20:37:49 IST 2023 NEUTRAL CITATION C/SCA/18049/2015 ORDER DATED: 04/12/2023 undefined recommending for issuance of certificate as an agriculturist, however, even those opinions are also ignored by the Collector as well as by the Special Secretary and that is how certificate is not issued to the petitioners and once again the petitioner is being relegated to the Collector by remanding the matter back by way of impugned order and therefore, the impugned order is required to be quashed and set aside and the State authority namely Collector, Banaskantha is required to be directed to issue certificate as an agriculturist in favour of the petitioners.
14. The petition was opposed by learned Assistant Government Pleader Mr. Adityasinh Jadeja who submitted that though the matter has been remanded back, the petitioner could not produce any document as can be seen from the record whereby the petitioner could established that in the year 1961 when the land was purchased by father of the petitioner by way of registered sale deed he was an agriculturist in Page 10 of 16 Downloaded on : Thu Dec 07 20:37:49 IST 2023 NEUTRAL CITATION C/SCA/18049/2015 ORDER DATED: 04/12/2023 undefined the State of Gujarat. He submitted that unless the petitioner can produce some documents establishing the fact that the father of the petitioner was an agriculturist of State of Gujarat as per the policy of the Government, no certificate as an agriculturist can be issued in favour of the petitioner. Learned Assistant Government Pleader Mr. Adityasinh Jadeja further pointed out that pursuant to the interim order dated 23.6.2023, when the petitioner made an application to the Deputy Collector, Danta, even that application also was examined in light of Government Resolution dated of 1.7.2009. However, the petitioner did not produce any document whereby the petitioner could establish that the father of the petitioner was an agriculturist prior to 1961 in the State of Gujarat.
15. In view of above, learned Assistant Government Pleader Mr. Adityasinh Jadeja submitted that as the original order which is Page 11 of 16 Downloaded on : Thu Dec 07 20:37:49 IST 2023 NEUTRAL CITATION C/SCA/18049/2015 ORDER DATED: 04/12/2023 undefined impugned in the petition whereby the matter is remanded back to the Collector, the petitioner is required to comply with the aforesaid order and is required to approach the Collector whereby the Collector, Banaskantha would reexamine the matter as per the order of remand. Additionally, learned Assistant Government Pleader Mr. Adityasinh Jadeja submitted that even otherwise, now, when pursuant to the interim order dated 23.6.2023 passed by the Co- ordinate Bench of this Court when the petitioner applied before the State Government and before the Deputy Collector, Danta in particular, when the Deputy Collector, Danta also after examining the application of the petitioner rejected the petitioner's application on the same ground vide order dated 4.8.2023. Even otherwise, in view of fresh order dated 4.8.2023, the petitioner if aggrieved by the aforesaid order is required to challenged the aforesaid order before the Collector, Banaskantha which resultantly would mean that in any case be it as a remand case or Page 12 of 16 Downloaded on : Thu Dec 07 20:37:49 IST 2023 NEUTRAL CITATION C/SCA/18049/2015 ORDER DATED: 04/12/2023 undefined an appeal against the order dated 4.8.2023, in any case, the grievance of the petitioner is required to be examined by the Collector, Banaskantha in any case.
16. He therefore submitted that when there is a finding of facts which is under challenged and unless contrary is produced on record to established that the father of the petitioner was an agriculturist of the State of Gujarat prior to 1961, this Court in a writ petition under Article 226 of the Constitution of India may not pass an order directing the State Government and more particularly, the Collector, Banaskatha to issue a certificate of agriculturist by over looking the findings of facts arrived at by the Revenue Authorities. By making the aforesaid submissions, learned Assistant Government Pleader Mr. Adityasinh Jadeja prayed for dismissal of the present petition.
17. I have heard learned advocates appearing Page 13 of 16 Downloaded on : Thu Dec 07 20:37:49 IST 2023 NEUTRAL CITATION C/SCA/18049/2015 ORDER DATED: 04/12/2023 undefined for the respective parties and perused the record. On perusal of the record, I found that it is true that twice the matter has been remanded back to the Collector, Banaskantha to look into the matter on the basis of documents that the petitioner may produce as well as vide an interim order dated 23.6.2023 also, the Deputy Collector, Danta was directed to examine the issue in case if the petitioner prefers any application for issuance of certificate as an agriculturist. Even the Deputy Collector, Danta also examined the case of the petitioner in light of Government Resolution dated 1.7.2009. However, it was observed by the Deputy Collector, Danta that the petitioner was an agriculturist of Rajasthan prior to 1961 and therefore, as the original sale deed was executed in favour of the father of the petitioner when he was not an agriculturist, the petitioner cannot be granted the certificate as an agriculturist.
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18. Aforesaid being findings of facts and as there is nothing contrary on record to establish that the petitioner's father prior to 1961 was an agriculturist of State of Gujarat, I don't see any reason to interfere with the order impugned in this petition.
19. I of the view that no illegality has been committed by the Special Secretary (Appeals) while passing the impugned order dated 29.9.2015, whereby the matter is remanded back to the Collector, Banaskantha.
20. In view of that as well as considering the fact that now there is an already order dated 4.8.2023 by the Deputy Collector, Danta which also the petitioner is required to challenge by way of preferring appropriate proceedings before the Collector, Banaskantha. According to me, it is the Collector, Banaskantha who would be proper authority and empowered with the issue of either considering the remand case or to consider the appeal that the petitioner may Page 15 of 16 Downloaded on : Thu Dec 07 20:37:49 IST 2023 NEUTRAL CITATION C/SCA/18049/2015 ORDER DATED: 04/12/2023 undefined prefer against order dated 4.8.2023 passed by the Deputy Collector, Danta. In view of that I don't see any reason to entertain this petition, the same is required to be dismissed and dismissed accordingly. Notice is discharged. No order as to costs.
21. However, it is clarified that this Court has not gone into merits of the matter and the Collector, Banaskantha is directed to decide the remand case/appeal that the petitioner may prefer in accordance with law on the basis of documents that the petitioner may produce and to pass a reasoned order without being influenced by dismissal of present petition.
(NIRZAR S. DESAI,J) Pallavi Page 16 of 16 Downloaded on : Thu Dec 07 20:37:49 IST 2023