Gujarat High Court
Ratadia Khodabhai Vajabhai - President ... vs State Of Gujarat & 5....Opponent(S) on 2 December, 2014
Author: R.P.Dholaria
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/WPPIL/238/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
WRIT PETITION (PIL) NO. 238 of 2014
With
CIVIL APPLICATION NO. 13290 of 2014
In
WRIT PETITION (PIL) NO. 238 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE MR. VIJAY MANOHAR
SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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RATADIA KHODABHAI VAJABHAI - PRESIDENT & 7....Applicant(s)
Versus
STATE OF GUJARAT & 5....Opponent(s)
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Appearance:
Page 1 of 10
C/WPPIL/238/2014 JUDGMENT
MS. SANGEETA PAHWA FOR M/S THAKKAR ASSOC., ADVOCATE for the
Applicant(s) No. 1 - 8
MR. H.L. JANI, In-Charge G.P. assisted by MR. VANDAN BAXI, AGP, for the
Opponent(s) No. 1-4
NOTICE SERVED BY DS for the Opponent(s) No. 5
UNSERVED-REFUSED (N) for the Opponent(s) No. 6
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CORAM: HONOURABLE THE ACTING CHIEF JUSTICE MR.
VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 02/12/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA) This writ petition in the nature of public interest litigation has been filed by the petitioners claiming the following reliefs:
"(B) - Your Lordships may be pleased to issue appropriate writ, order or direction, declaring that the order dated 10.2.2005 made by respondent No. 3 in respect of land bearing Survey Nos. 56 paiki 2, 56 paiki 3, 56 paiki 8, 56 paiki 9, 56 paiki 10, 56 paiki 13, 56 paiki 12, 56 paiki 4, 56 paiki 11 and 56 paiki of village Ishwariya, Taluka Babra, District Amreli for converting the same into old tenure is bad in law and hence be set aside, in the interest of justice;
(C) - Your Lordships may be pleased to issue appropriate writ, order or direction, declaring that all the transaction of sale/transfer by any mode Page 2 of 10 C/WPPIL/238/2014 JUDGMENT whatsoever in respect of land bearing Survey Nos.
56 paiki 2, 56 paiki 3, 56 paiki 8, 56 paiki 9, 56 paiki 10, 56 paiki 13, 56 paiki 12, 56 paiki 4, 56 paiki 11 and 56 paiki of village Ishwariya, Taluka Babra, District Amreli, is null and void and hence, such transactions be set aside, in the interest of justice; (D) - Your Lordships may be pleased to direct the respondents, their agents and servants not to obstruct the cattle to graze in the land bearing Survey Nos. 56 paiki 2, 56 paiki 3, 56 paiki 8, 56 paiki 9, 56 paiki 10, 56 paiki 13, 56 paiki 12, 56 paiki 4, 56 paiki 11 and 56 paiki of village Babra, admeasuring 487 Acres 14 Gunthas situated at village Babra, District Amreli, pending admission, hearing and final disposal of this petition."
2. We have heard learned advocate Ms. Sangeeta Pahwa appearing for M/s. Thakkar Associates for the petitioners and Mr. H.L. Jani, learned Government Pleader assisted by Mr. Vandan Baxi, learned Assistant Government Pleader.
3. Having heard learned counsel for the respective parties and on going through the material available on record, it appears that in pursuance of the notice issued by this Court, Collector, Amreli, has carried out detailed enquiry regarding the allegations made in the present petition and a detailed report has been submitted by the Collector, Amreli, on 14.8.2014, relevant portion of which is reproduced hereinbelow:
"In this matter, considering the report received from Prant Officer, Lathi, Mamlatdar, Babra and D.I.L.R., Amreli, the facts are as under:Page 3 of 10
C/WPPIL/238/2014 JUDGMENT In village form No. 1 and 7 & 12 of village Ishvariya, Taluka Babra, District Amreli, land total admeasuring Acres 1017-32 Gunthas is in the name of Salemal Ni Vidi i.e. the land on which no cultivation is possible. In respect of this land, proceedings under Land Ceiling Act have been disposed off before the Deputy Collector, Amreli, and accordingly, land of some of the Girasdars have been declared excess by Prant Officer and possession of the same was taken by Prant Officer whereas the remaining land total admeasuring Acres 530-18 Gunthas is in the names of original owners.
Out of this Survey No. 56, land which has been declared excess under various cases under Ceiling Act, land total admeasuring Acres 117-11 Gunthas has been allotted on permanent basis to Babra Taluka Anusuchit Jati Samudayak Kheti Sahakari Mandli vide Deputy Collector, Amreli, Order No. CEILING/VASHI/490/86 dated 27.02.1986 and entry No. 193 to this effect made in Record of Right in village record.
Thereafter, as per entry No. 208, vide Deputy Collector, Amreli, Order No. CEILING/VASHI/1434/83 dated 16.07.1983, various pieces of land of Survey No. 56 total admeasuring 370.03 Gunthas has been allotted to Babra Taluka Anusuchit Jati Samudayak Kheti Sahakari Mandli thus, total land admeasuring Acres 487-14 Gunthas has been allotted to this Society.
Thereafter, vide Deputy Collector, Amreli, Order No. JMN/VASHI/487/05 dated 10.2.2005, various new Page 4 of 10 C/WPPIL/238/2014 JUDGMENT tenure lands of Survey No. 56 have been converted to old tenure land. This land has been converted from new tenure land to old tenure land as per the provision of Government of Gujarat, Revenue Department, Resolution dated 11.03.1996, 10.05.2001 and 20.08.2002.
Sr. Survey No. Measurement
No. Acres - Gunthas
1 56 Paiky 2 33-17
2 56 Paiky 3 67-34
3 56 Paiky 8 16-00
4 56 Paiky 9 46-11
5 56 Paiky 10 10-19
6 56 Paiky 13 130-00
7 56 Paiky 12 59-04
8 56 Paiky 4 64-34
9 56 Paiky 11 42-05
10 56 Paiky 17-10
Total 487-14
After conversion of the land from new tenure to old tenure, Babra Taluka Anusuchit Jati Samudayak Kheti Sahakari Mandli has sold land to some persons. Entry to this effect has been made in village form No. 6 and its statement is enclosed herewith. At present, it is in the names of various 30 (thirty) persons.
Thus, out of the excess land of Survey No. 56, land total admeasuring Acres 487-14Gunthas has been allotted to Babra Taluka Anusuchit Jati Samudayak Kheti Sahakari Mandli. Subsequently, the said Mandli got converted the said land to old tenure land and sold Page 5 of 10 C/WPPIL/238/2014 JUDGMENT it to various persons. As the said sale transactions have not been done after obtaining permission under Section 30 of the Ceiling Act, the Deputy Collector, Amreli, has initiated proceedings of breach of Condition (Sharat Bhang) and vide order dated 28.5.2009, land of Survey No. 56 sold by the Mandli has been confiscated to the Government. Against the said order, appeal has been preferred before the Hon'ble Gujarat Revenue Tribunal wherein by order dated 7.7.2009 both the parties are directed to maintain status quo till further order be passed. The Hon'ble Revenue Tribunal, Ahmedabad, has not conveyed its order to this office. Further, all the land of Survey No. 56 is hilly land. The Mamlatdar has personally visited the place, photographs have been taken.
As per the record of D.I.L.R., Amreli, the land Survey No. 56 total admeasures Acres 1017-32 Gunthas. After disposal of cases under Ceiling Act, land total admeasuring Acres 487-30 Gunthas has been confiscated and land total admeasuring Acres 530-14 Gunthas is in the name of original owners, but, the D.I.L.R., Amreli, has not updated its record and hence, in the record of D.I.L.R., Amreli, land total admeasuring Acres 1017-32 Gunthas has been registered as Vidi Land. As per the above details, land Survey No. 56 of village Ishvariya is not Gaucher land but, it is vidi land which belongs to private individuals.
In the above petition, in point No. 4.17, it has been submitted by the applicant that in total 07 (seven) villages, Gaucher land is not as per the number of animals. In the above matter, out of the seven villages, Page 6 of 10 C/WPPIL/238/2014 JUDGMENT the total number of animals of village (1) Itariya, (2) Ishvariya, (3) Shirvaniya and (4) Khambhala is shown 29423 but as per the information provided by Mamlatdar, the number of animals is as under:
S.No Name of village Population Number of animals .1 Shirvaniya 977 695
2 Kidi 1164 1085
3. Kariyana 5343 3496
4. Nani Kundal 2686 1240
5. Ishvariya 1329 850.
6. Khambhala 4990 5929 Total 13195 Thus, the total number of animals of above 06 (six) villages is 13195. Statement issued by Talati cum Mantri are enclosed. Further, the village Itariya comes within Gadhada Taluka of District Bhavnagar and hence, its number of animals has not been taken into consideration.
Out of the above six villages, there exist Gaucher land in five villages. Moreover, in six villages, there exist Government waste land and extracts of village For Nos. 8A are enclosed. The details are as under:
S. Name of village Measurement of Measurement of No. Gaucher land Govt. Waste land HQ.ARE.SQ.MTRS HQ.ARE.SQ.MRTRS .
1 Shivaniya 0 114-19-28
2 Kidi 113-79-83 190-72-45
Page 7 of 10
C/WPPIL/238/2014 JUDGMENT
3 Kariyana 208-37-39 396-52-35
4. Nani Kundal 4-60-33 387-00-90
5. Ishvariya 51-47-67 235-60-19
6. Khambhala 265-26-86 826-70-70
Total 643-52-80 2155-36-20
Taking into consideration the above details, the facts are as under:
1. There is no Gaucher land admeasuring Acres 1017.32 Gunthas at village Ishvariya, taluka Babra, but, it is Vidi land of private individual. Out of the same, by way of disposal of Ceiling Limit Cases, land total admeasuring Acres 487.14 Gunthas has been declared surplus and has been confiscated to Government and subsequently, land total admeasuring Acres 487-14 Gunthas has been allotted to Babra Taluka Anusuchit Jati Samudayak Kheti Sahakari Mandli by way of tenancy.
2. Taking into consideration the provisions of Revenue Department, Resolutions dated 10-05-2001 and 20-08-2002, the Deputy Collector, Amreli, has given permission for conversion of land admeasuring 487.14 Gunthas allotted to Babra Taluka Anusuchit Jati Samudayak Kheti Sahakari Mandli to old tenure land.
Thereafter, this Mandli has sold out this land to various persons.
3. Land total admeasuring Acres 487-14 Gunthas of Survey No. 56 paiky converted to old tenure land has been sold out by Babra Taluka Anusuchit Jati Samudayak Kheti Sahakari Mandli without permission and hence, by order dated 28.5.2009 of Deputy Collector, Amreli, the said land has been confiscated to Government.
4. Against the order dated 28.5.2009, appeal has been Page 8 of 10 C/WPPIL/238/2014 JUDGMENT preferred by various applicants before the Hon'ble Gujarat Revenue Tribunal, Ahmedabad, wherein injunction has been granted by order dated 7.7.2009 and it has been ordered to maintain status quo position.
5. At village Ishvariya and its surrounding villages viz., Kidi, Kariyana, Nani Kundal and Khambhal there exist Gaucher and Government waste land.
6. Land Survey No. 56 paiky of Ishvariya is waste land and hilly land and on perusal of the record, it does not transpire that it is Gaucher land and hence, the submission of the applicant are not true."
4. If we see the relief claimed by the petitioners, it revolved the order dated 10.2.2005 passed by respondent No. 3 and the subsequent orders and the transaction took place amongst the persons who are concerned with the aforesaid land.
5. Indisputably, on going through the material available on record, it appears that against the aforesaid order passed by the Deputy Collector, proceedings are initiated before the competent authority and presently it is pending before learned Gujarat Revenue Tribunal. In view of the special provisions under the Land laws, the competent authorities are considering the grievances raised by interested parties and that grievance has not yet been resolved and pending for consideration before the competent authority. The petitioners have joined only the persons in whose favour the impugned order is passed in the year 2005. Subsequent thereto, several other persons who have also got their interest in the aforesaid land are not parties herein in whose favour, after conversion, the land was transferred.
6. In view of the aforesaid factual scenario, when the matter Page 9 of 10 C/WPPIL/238/2014 JUDGMENT is already under consideration before the Gujarat Revenue Tribunal, this writ petition challenging same issues, being parallel proceedings, cannot be considered by this Court. As the matter is pending before the competent authority, the present proceedings in the nature of public interest litigation cannot be maintainable. In that view of the matter, we are of the opinion that the present petition in the nature of public interest litigation is not maintainable and the same is dismissed accordingly. We make it clear that we have not entered into the merits of the case and the grievance raised by the present petitioners in the present writ petition. The present petitioners shall be at liberty to implead themselves in the proceedings before the Gujarat Revenue Tribunal, if it is permissible under the provisions of law.
7. Since we have dismissed the main writ petition, the Civil Application also does not survive. It also stands dismissed accordingly.
(V.M.SAHAI, ACJ.) (R.P.DHOLARIA,J.) ((pkn) Page 10 of 10