Gujarat High Court
Umatiya Hasambhai Nurjibhai vs State Of Gujarat on 20 February, 2024
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15641 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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UMATIYA HASAMBHAI NURJIBHAI
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
ULLASH N GOHIL(8357) for the Petitioner(s) No. 1
MR. NIKUNJ KANARA, ON ADVANCE COPY SERVED TO GOVERNMENT
PLEADER/PP for the Respondent(s) No. 1,2,3
NOTICE SERVED for the Respondent(s) No. 1,2,3
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 20/02/2024
ORAL JUDGMENT
1. RULE. Learned AGP Mr. Nikunj Kanara waives service of notice of rule for and on behalf of the respondent - State. Page 1 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024
NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined
2. By way of this petition, the petitioner has prayed for quashing and setting aside the order dated 06.02.2014 passed by the Collector, Banaskantha in N.K./JAMAN/3/Vashi.no.7748 to 7753 as well as the order dated 18.06.2016 passed by the Special Secretary, Revenue Department (Appeals) in Revision Appliation No. MVV/ JAMAN/BANAS/25 of 2014 confirming the order passed by the Collector, Banaskantha and rejecting the revision application of the petitioner for regularization of encroachment of the land in question.
3. Heard learned advocate Mr. S. P. Majmudar with learned advocate Mr. Shagun Choksi for the petitioner and learned AGP Mr. Nikunj Kanara for the respondent - State.
4. It is the case of the petitioners that the petitioner is in possession in respect of land bearing Survey No. 267 paiki, Taluka: Danta, District : Banaskantha admeasuring 1 acre 20 gunthas and the said land is located on the boundary between village : Panjarpur, Village: Ganchherani and Village: Hedo. The said land is encroached upon by the petitioner and the petitioner is the original Page 2 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024 NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined owner of the land at Survey Nos. 41 and 42 of Village: Hedo which are adjoining to the land in question.
4.1. It is the case of the petitioner that the land in question originally belonged to Maharaj Madhusudansinhji and thereafter, the same was vested into Gram Panchayat, Panjarpur and when the petitioner was asked to pay the penalty for a period of 1968 - 1969 to 1993-1994 by the Gram Panchayat, the same was paid by the present petitioner.
4.2. According to the petitioner, the Government has vide Government Resolution dated 08.01.1980 by the Revenue Department has framed a policy for regularization of encroachment on the government land and therefore, pursuant to the aforesaid policy introduced vide Government Resolution dated 08.01.1980, the petitioner applied for regularization of his encroachment over the subject land but the said application was rejected vide order dated 30.06.2000. The petitioner challenged the said order dated 30.06.2000 passed by the Collector, Banaskantha by way of Revision Application No. MVV/JAMAN/ Page 3 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024 NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined 61/2000 before the Special Secretary, Revenue Department and Special Secretary, Revenue Department vide order dated 12.07.2001 partly allowed the revision application and remanded back the matter to the learned Collector. Upon remand, learned Collector vide order dated 17.05.2007 once again rejected the application of the petitioner for regularization which was again challenged by the petitioner before the Special Secretary, Revenue Department. Being aggrieved by the aforesaid order dated 17.05.2007 , the petitioner preferred revision application before the Special Secretary, Revenue Department being Revision Application No. MVV/JAMAN/BANAS/43/2007. The said revision application was partly allowed vide order dated 23.11.2013 and again the same was remanded back to the Collector, Banaskantha. While remanding the matter back, the Special Secretary, Revenue Department observed that the Government Resolution dated 08.01.1980 be considered by learned Collector while disposing of the application of the petitioner.
4.3. Pursuant to the aforesaid remand,when the proceedings were Page 4 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024 NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined decided by the Collector, Banaskantha, he once again vide order dated 06.02.2014 rejected the application of the petitioner and hence, being aggrieved by the rejection of the application for regularization even after second remand, vide order dated 06.02.2014 the petitioner challenged the same before Special Secretary, Revenue Department by preferring Revision Application No. MVV/JAMAN/BANAS/25/2014. However, initially after granting the stay in favour of the petitioner once again by order dated 18.06.2014, the Special Secretary, Revenue Department rejected the revision application of the petitioner and hence, being aggrieved by and feeling dissatisfied with the order dated 06.02.2014 passed by the Collector, Banaskantha and 18.06.2016 passed by the Special Secretary, Revenue Department confirming the order passed by the Collector, Banaskantha, the petitioner has preferred this petition.
5. Learned advocate Mr. S. P. Majmudar appearing for the petitioner submitted that despite positive observations made by Special Secretary, Revenue Department while remanding the matter back to the Collector and though the petitioner is fulfilling the condition Page 5 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024 NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined of Government Resolution dated 08.01.1980, the Collector, Banaskantha has committed an error by not confining himself to the observations made by Special Secretary, Revenue Department and has committed an error by considering the issue from altogether a different aspects and thereby, he has committed an error by rejecting the application for regularization preferred by the petitioner.
5.1. Learned advocate Mr. S. P. Majmudar submitted that the Government Resolution dated 08.01.1980 provides that the land can be regularized in case if the holding of the person who has encroached upon the land is less than 8 acres. In the instant case, though the holding of the petitioner was less than 8 acres, despite that the Collector observed that the petitioner is already holding a land which is less than 8 acres and therefore, he can easily meet with his daily requirements and earn his livelihood and therefore, by making such observation, he has not considered the matter by taking into consideration the directions issued by the Special Secretary, Revenue Department while remanding the matter. Page 6 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024
NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined 5.2. Learned advocate Mr. Majmudar submitted that the Special Secretary, Revenue Department being higher authority, once the higher authority has mandated the Collector to consider the matter in light of Government Resolution dated 08.01.1980, the consequential order by the Collector was only formality as the Special Secretary, Revenue Department has already considered the matter on merits and the language of the order itself suggest that all that was required to be done by Collector was to pass a consequential order after considering the observations made by the Special Secretary, Revenue Department. 5.3. Learned advocate Mr. Majmudar further submitted that the order passed by the Special Secretary, Revenue Department while making positive observations in favour of the petitioner which was passed on 19.11.2013 was never challenged by the State and therefore, the aforesaid observation having been made by the higher authority, it was the duty of the Collector to obey the same and to act in accordance with the aforesaid order. He, therefore, submitted that despite the specific observation made by the Special Secretary, Revenue Department in his order dated Page 7 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024 NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined 19.11.2013 whereby after considering the merits of the matter, the Special Secretary, Revenue Department has opined that the encroachment made by the petitioner is required to be regularized, it was not open for the Collector, Banaskantha to take a contrary view and reject the application made by the petitioner. He, therefore, prayed for quashing and setting aside both the impugned orders dated 06.02.2014 passed by the Collector, Banaskantha in N.K./JAMAN/3/Vashi.no.7748 to 7753 as well as the order dated 18.06.2016 passed by the Special Secretary, Revenue Department (Appeals) in Revision Appliation No. MVV/ JAMAN/BANAS/25 of 2014.
5.4. Further learned advocate Mr. S. P. Majmudar also has submitted that the contentions of the petitioner were not dealt with by the Special Secretary, Revenue Department while rejecting the revision application of the petitioner.
6. Learned AGP Mr. Nikunj Kanara appearing for the respondent - State vehemently opposed this petition and submitted that the petitioner cannot claim regularization as a matter of right. If the Page 8 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024 NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined matter of regularization is claimed as a matter of right and such requests are considered and the State is directed to consider, than that will encourage the people to encroach upon the government land. Learned AGP Mr. Nikunj Kanara pointed out that the government resolution itself also states that what is important is to remove the encroachment as far as possible and it is only after overall evolution of the facts and circumstances, it is a discretionary powers vested with the concerned Collector to decide whether to regularize the encroachment or not. 6.1. Learned AGP Mr. Kanara further pointed out that government resolution is mainly aimed at poor person, downtrodden persons, Schedule Tribe Community and Backward Class Community. He further drew attention from the averments made in the petition itself that the petitioner is already holding two portion of land i.e. Survey Nos. 41 and 42 at Village: Hedo and this is the additional land which is adjacent to the original land held by the petitioner which is encroached upon by the petitioner and therefore, as the petitioner is already having two survey numbers of land, the question of livelihood has rightly been considered by the Page 9 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024 NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined Collector.
6.2. Learned AGP Mr. Kanara submitted that what is required to be considered in view of government resolution dated 18.01.1980 is an evaluation about the hardship that a person may face. Even if a person is holding less than 8 acres of land unless the Collector comes to a conclusion that non-regularization of encroachment would lead to hardship, such regularization is impermissible. 6.3. Learned AGP Mr. Kanara further submitted that 8 acres of land is kept for regularizing the encroached land but it does not mean that any land if regularized and added to the land already held by the concerned person is less than 8 acres of land, all such encroachments are regularized.
6.4. According to learned AGP Mr. Kanara, the aspect of 8 acres of land is one of the consideration for regularization of encroached land but that is not the sole consideration and even government resolution also provides that it is on overall evaluation of the facts and circumstances that concerned Collector is required to decide the application of regularization of encroached land. Page 10 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024
NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined 6.5. Learned AGP Mr. Kanara relied upon the order passed by the Division Bench of this Court in Letters Patent Appeal No. 1419 of 2015 dated 04.01.2016 reported in AIR 2016 Guj. 42 and by relying upon paragraph no. 4 of the aforesaid judgment submitted that allotment of land or regularization of land is no vested right of the applicant or the petitioner as the case may be even if such policy exists. Such policy is by way of enabling powers but on the basis of such policy, the citizens cannot compel the government for allotment or regularization of land for his own purpose. 6.6. Learned AGP Mr. Kanara submitted that the total holding of the petitioner as considered by the Collector is 6 acres and therefore, when the Collector has opined that the petitioner can earn his livelihood easily from the proceeds of the aforesaid land already held by the petitioner, the question of hardship which is the prime consideration for regularization of encroachment has rightly been considered by the Collector, Banaskantha and confirmed by the Special Secretary, Revenue Department and therefore, the Collector has rightly rejected the petitioner's application for regularization of encroachment as the total holding Page 11 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024 NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined of the petitioner in respect of overall land is more than 6 acres and therefore, earning livelihood is not a problem for the petitioner. 6.7. Learned AGP Mr. Kanara further pointed out from the government resolution that government resolution is meant for downtrodden class of people, back ward class, Scheduled caste and other economically weaker sections with a view to provide them livelihood by regularizing the encroachment. Once the Collector has already came to the conclusion that the petitioner is sufficiently earning his livelihood by regularizing the encroachment, the very purpose of government resolution would be frustrated. He submitted that such government resolutions can't be pressed into service just to see that a person who has already encroached upon the land for number of years is encouraged to do such activities. If such encroachment is regularized, it will encourage others also to encroach upon the government land and therefore, he prayed for dismissal of the petition.
7. I have heard learned advocates for the respective parties and perused the record. I have also considered the government Page 12 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024 NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined resolution dated 08.01.1980. On perusal of record, I found that government resolution dated 08.01.1980 provides for encroachment on government land. However, even as per the said government resolution, the first and foremost requirement is to remove the encroachment as far as possible. As far as the regularization of encroachment on agricultural land is concerned, Clause 6 (1) provides that if the land is required for public purpose irrespective of hardship caused to the encroacher, the said encroachment is required to be removed. Clause 6 (2) provides that if the Collector upon ground reality is of the view that by removing the encroachment, the encroacher face hardship and will be in a very pitiable condition then only the Collector can consider of regularizing the encroachment to the extent that holding of a person should not exceed 8 acres. Clause 6 (2) if can be read, what is important is that it gives discretionary powers to the Collector to consider the application for regularization. First the Collector is required to come to a conclusion that as to whether such removal of encroachment would lead to a great hardship to the encroacher and whether he shall be put into pitiable condition or not. It is only Page 13 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024 NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined after the Collector arrives at a conclusion that removal of encroachment would lead to pitiable condition of the encroacher and may cause hardship to the encroacher then only the question about whether the total holding of the land is less than 8 acres or more than 8 acres is required to be considered.
8. In light of the aforesaid provision, if the observation made by the Special Secretary, Revenue Department in the order dated 19.11.2013 is seen, all that was considered by the Special Secretary, Revenue Department (Appeals) was that the encroachment was done prior to 1972 and the petitioner is holding less acre of land than required and therefore, he has opined positively and remanded the matter for regularization of encroachment.
9. On perusal of the order passed by the Special Secretary, Revenue Department (Appeals) dated 19.12.2013, it also states that earlier also the petitioner's application for regularization was rejected on four different grounds and he has considered that there was positive opinion for regularization of the land. However, the Page 14 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024 NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined Special Secretary, Revenue Department while remanding the matter back has passed an order that after fixing the market price of the land, the land may be regularized.
10. When the matter was remanded back, the Collector acted in accordance with the provision of Clause 6 (2) and therefore, he first considered the aspect about hardship and whether it will put the petitioner into pitiable condition or not. The Collector has rightly considered the aforesaid aspect because clause 6 (2) provides that only after a positive conclusion of the Collector that removal of land would put the encrocher into hardship or will lead to pitiable condition, if such conclusion is arrived at then only the question about his total holdings was required to be considered.
11. In the instant case, the Collector has categorically stated that the petitioner is already holding more than 6 acres of land and he is earning his livelihood out of it and therefore, there is no question of regularizing the encroachment made by the petitioner. As the petitioner could not clear the first hurdle about pitiable condition and hardship, the question of whether the petitioner is Page 15 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024 NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined holding less than 8 acres of land or not would not arise. Further the petitioner cannot claim regularization of encroachment as a matter of right. Such policies are framed by the Government just to ensure that a person even if has made encroachment on account of compelling circumstances just to earn his livelihood, such mean of livelihood may not be taken away and therefore, if any benovalent policy is introduced by way of government resolution dated 08.01.1980, if despite a positive finding that the petitioner is earning his livelihood out of his original holding would encourage others also to encroach upon the land. If the petitioner's application for regularization is considered positively and impugned orders are passed, in that case, it would amount to allowing a person to regularize the encroachment and thereby providing him luxurious life by offering government land encroached upon by him on a silver platter which was not the purpose behind the Government Resolution dated 08.01.1980. Further the Division Bench of this Court while passing the order dated 04.01.2016 in Letters Patent Appeal No. 1419 of 2015 in paragraph no. 4 observed as under:-
Page 16 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024
NEUTRAL CITATION C/SCA/15641/2016 JUDGMENT DATED: 20/02/2024 undefined "4. We may record at the outset that there is no vested right with the petitioner to get the land allotted by the Government even if such policy exists. The policy is by way of enabling power but thereby citizen cannot compel the allotment of the land for his own purpose."
12. In view of above observations, it can be said that an encroacher cannot claim regularization of his encroachment even if there is a government policy as a matter of right as such policy is only an enabling power that can be exercised in appropriate case by the authority to exercise such powers.
13. In view of above, I do not see any reason to interfere with the order dated 06.02.2014 passed by the Collector, Banaskantha in N.K./JAMAN/3/Vashi.no.7748 to 7753 and the order dated 18.06.2016 passed by the Special Secretary, Revenue Department (Appeals) in Revision Appliation No. MVV/JAMAN/BANAS/25 of 2014.
14. Resultantly this petition is required to be dismissed and the same is dismissed. Rule is discharged. No order as to costs. Interim relief, if any, granted earlier shall stands vacated.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 17 of 17 Downloaded on : Fri Mar 01 21:37:34 IST 2024