Gujarat High Court
Somaji Khetaji Mali vs State Of Gujarat on 10 March, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/2982/2014 JUDGMENT DATED: 10/03/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2982 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
================================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
================================================================
SOMAJI KHETAJI MALI
Versus
STATE OF GUJARAT & 2 other(s)
================================================================
Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1,2,3
RULE SERVED for the Respondent(s) No. 3
================================================================
CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 10/03/2022
ORAL JUDGMENT
1. By filing this petition, the petitioner has challenged order dated 23.1.2014 passed by Collector, Banaskantha, and prayed to regularize land bearing Survey No.78+170/3 paiki of village-Ranpur (Aathamano Vas), Taluka-Deesa, District- Banaskantha and also to convert said land from new tenure to old tenure.
Page 1 of 11 Downloaded on : Thu Mar 10 23:52:28 IST 2022C/SCA/2982/2014 JUDGMENT DATED: 10/03/2022
2. The short facts of the case are that the petitioner is in occupation of land bearing Survey No.78+170/3(Paiki) admeasuring 3 acres and 5 gunthas of village Ranpura (Aathamano Vas), Taluka Deesa, District Banaskantha. The said land has been purchased by the petitioner's father deceased Khetaji Achalaji Mali on 30.10.1974. Originally Survey No.78+170 was Pasayata Chakariyat Inami land admeasuring 10 acres and 27 gunthas. Out of the same, land admeasuring 7 acres and 22 gunthas was purchased by Nagaji Ukaji and Chamanji Damarji. The said land has been regularized in the name of Nagaji Ukaji and Chamanaji Damarji by order dated 18.2.1980 by imposing penalty and directing the occupier to pay premium at the specified rate in accordance with Government Resolution dated 11.6.1968 and the Collector converted the said land from new tenure to old tenure. The remaining 3 acres and 5 gunthas of Survey No.78+170/3 (Paiki) was purchased by petitioner's father deceased Khetaji Achalaji Mali by registered sale deed on 30.10.1974. Deceased Khetaji Achalaji Mali was uneducated and did not know to sign and therefore application could not be made by him. However, thereafter application has been made by the present petitioner which was rejected.
2.1 The petitioner had made application to the Collector pointing out that out of total area of Survey No.78+170 of 10 acres and 27 gunthas, land admeasuring 7 acres and 20 gunthas has already been regularized in favour of Nagaji Ukaji and Chamanaji Damarji but the petitioner's land has not been regularized. The petitioner requested the Collector to kindly give him the benefit which was given to Nagaji Ukaji and Chamanaji Damarji. It is stated that name of the petitioner's Page 2 of 11 Downloaded on : Thu Mar 10 23:52:28 IST 2022 C/SCA/2982/2014 JUDGMENT DATED: 10/03/2022 father has been entered in the revenue record by Entry No.374 dated 20.3.1975 and the said entry has been certified by the Mamlatdar, Deesa. It is stated that Entry No.551 was made in favour of Nagaji Ukaji and Chamanaji Damarji by Deputy Collector, Palanpur, wherein Deputy Collector relying on the Government Circular dated 11.6.1968 has regularized the land by recovering 26 Pat of the Akar for converting the land from new tenure to old tenure and Rs.50/- penalty has been imposed by order dated 28.3.1980. It is stated that on 12.12.1994 by Entry No.169 name of the present petitioner has been entered in the revenue record. The said entry has been certified by the Deputy Mamlatdar on 2.3.1995. It is stated that in the year 2004, the petitioner made application to the Deputy Collector for converting the land from new tenure to old tenure relying on the government circular dated 11.6.1968 and also requested that from the very survey number land belonging to Nagaji Ukaji and Chamanaji Damarji has been converted from new tenure to old tenure. The Deputy Collector on 23.7.2004 rejected the application of the petitioner and held that transfer of land is against the provisions of law and declared that the land should be vested in the Government. Against the order of the Deputy Collector, the petitioner preferred Appeal before the Collector, Banaskantha. The Collector, Banaskantha vide order No.B/JMN/ 4/APPEAL/26/2004 dated 13.6.2005 confirmed the order dated 23.7.2004 passed by the Deputy Collector. Against the order dated 13.6.2005 of the Collector, the petitioner preferred Appeal before the Secretary (Appeals). The Secretary (Appeals) vide order dated 9.6.2006 bearing no.MVV/JMN/BNS/26/2005 set aside the order passed by the Deputy Collector dated 23.7.2004 and order dated 13.6.2005 of the Collector and Page 3 of 11 Downloaded on : Thu Mar 10 23:52:28 IST 2022 C/SCA/2982/2014 JUDGMENT DATED: 10/03/2022 directed the Collector to regularize the land keeping in view the government resolution dated 16.3.1982 Clause 4 (2) thereof. It is stated that pursuant to the said order passed by the Secretary (Appeals), the Collector, Banaskantha on 9.11.2010 passed order No.JMN/3/Vashi/42145 and confirmed the order dated 23.7.2004 passed by the Deputy Collector.
2.2 It is stated that against the order of the Collector, Banaskantha dated 9.11.2010, the petitioner preferred Revision Application before the Secretary (Appeals). The Secretary (Appeals) vide order dated 27.9.2012 once again set aside the order passed by the Collector, Banaskantha and directed that the land should be regularized in view of the government resolution dated 13.6.1982 as well as government resolution no.NSJ/1088 CMR/104/6 dated 27.2.2009 and Government Resolution No.NSJ/1088/CMR/104/6 dated 18.1.2010. It is stated that once again the matter has been sent back to the Collector, Banaskantha. The Collector, Banaskantha vide order dated 23.1.2014 rejected the appeal of the petitioner and confirmed the order dated 23.7.2004 passed by the Deputy Collector.
2.3 Being aggrieved by and dis-satisfied with the Order dated 23.1.2014 passed by the Collector, the petitioner has filed present petition.
3. Heard Mr.Bharat Rao, learned advocate for the petitioner and learned AGP, Mr.Nikunj Kanara for the respondent-State and perused the material placed on record.
Page 4 of 11 Downloaded on : Thu Mar 10 23:52:28 IST 2022C/SCA/2982/2014 JUDGMENT DATED: 10/03/2022
4. Mr.Bharat Rao, learned advocate for the petitioner submitted that the Collector did not obey and carry out the instructions given by the higher authority, which gives direction in its appellate jurisdiction. He also submitted that the Deputy Collector and Collector failed to understand the first and foremost thing that originally Survey no.78+170 is of 10 acres and 27 gunthas and from the very survey no. 7 acres and 22 gunthas of the land is converted from new tenure to old tenure by the Deputy Collector in the year 1982. However, the petitioner's father who was illiterate and not aware of this provision, could not make application and therefore application was made in 2004 and Deputy Collector rejected the said application without considering all these facts and passed the order vesting the land in Government.
4.1 He further submitted that the Deputy Collector and Collector failed to consider that out of one survey number part of the land has been converted into old tenure and part of the land has not been converted and inconsistent reasons have been given by the Deputy Collector and Collector. He also submitted that Collector, Banaskantha is subordinate to Secretary (Appeals). He also submitted that the Secretary (Appeals) is an officer of the State level of the rank of Additional Chief Secretary with appellate power and he has power to set aside order and power to grant relief. When the Secretary (Appeals) has in terms directed the Collector to regularize the land in view of the government resolutions, the Collector cannot go behind this order and the Collector cannot reject the same otherwise it amounts to setting aside the order of the higher appellate authority by lower authority which is erroneous illegal.
Page 5 of 11 Downloaded on : Thu Mar 10 23:52:28 IST 2022C/SCA/2982/2014 JUDGMENT DATED: 10/03/2022 4.2 He further submitted that the petitioner has relied on the judgment of the Hon'ble Court in SCA No.3894 of 1986 wherein the Hon'ble Court has examined the matter at length and thereafter set aside the order passed by the revenue authority which had objected to the possession of the land of the petitioner of the said case and directed to determine the amount of premium payable by the petitioner and regularize the land in question. The petitioner also relied on the judgment of the Hon'ble High Court in Special Civil Application No.6977 of 1987.
4.3 He also submitted that in the present case the petitioner is in possession of the land in question since years together i.e. since 1974. It is submitted that the Mamlatdar has certified the entry in 1974. Thereafter no authority has objected to the same. Petitioner's father purchased the land by registered sale-deed. It was agricultural land and petitioner requested for conversion of the land from new tenure to old tenure relying on the government resolution and case of Nagaji Ukaji and Chamanaji Damarji. The said application was rejected by the Deputy Collector on extraneous considerations and the Collector also did not look into the matter and mechanically passed the order which is nothing but harassment to the petitioner. He further submitted that the petitioner could have filed Appeal/Revision before the Secretary (Appeals) against the order dated 23.1.2014 of the Collector, however, it will be unnecessary harassment to the petitioner because petitioner has already completed two rounds of litigations whereby the Secretary (Appeals) has allowed the appeals twice and Collector did not obey the order of the Secretary (Appeals) and Page 6 of 11 Downloaded on : Thu Mar 10 23:52:28 IST 2022 C/SCA/2982/2014 JUDGMENT DATED: 10/03/2022 the petitioner is litigating from 2004 till 2013 and therefore petitioner has approached this Ho'ble Court directly since in spite of the directions of the Secretary (Appeals) twice for regularizing the land and converting it from new tenure to old tenure. The Collector is not complying with the order and therefore this is fit case where direct petition is filed and alternative remedy is not bar because subordinate authority is not complying with the order and it amounts to contempt.
4.4 He also submitted that the petitioner belongs to socially and economically backward class of the society. The petitioner's only source of livelihood is agricultural activities. Petitioner's father purchased the land in 1975 and entry has been certified in 1975 and no authority has initiated any proceedings for any breach of conditions and on the application made by the petitioner for regularisation of the land and conversion from new tenure to old tenure, the Deputy Collector has in 2004 issued order to confiscate the land which is erroneous, illegal and against the provisions of law. Deputy Collector has no power to confiscate the land which petitioner's father purchased by registered sale-deed and entry has been certified in 1975 in the revenue record and that too without initiating any proceedings by the Deputy Collector for breach of conditions of the Tenancy Act. Therefore both the Deputy Collector and Collector are acting arbitrarily and against the provisions of law. In view of all these, he has prayed to allow present petition.
5. Per contra, learned AGP Mr.Nikunj Kanara for the respondent-State has supported the impugned order of the revenue authority. He has submitted that, at the relevant time, Page 7 of 11 Downloaded on : Thu Mar 10 23:52:28 IST 2022 C/SCA/2982/2014 JUDGMENT DATED: 10/03/2022 present petitioner or his deceased father has not made an application for regularization of the land and, therefore, it could not be regularized as per Government Resolution dated 11.6.1968. He has submitted that learned SSRD has remanded the matter to Collector to decide the same in light of Government Resolution dated 27.2.2009 and 18.1.2010 and, accordingly, considering both these Government Resolutions, the Collector has decided the application and rejected the same. He has submitted that the petitioner has not approached learned SSRD against the impugned order of the Collector and, therefore, there being an alternative remedy available to the petitioner, this petition may be dismissed. He has supported the order of the Collector and prayed to dismiss the petition.
6. Having considered the submissions made on behalf of both sides and the material placed on record, it reveals that there is no dispute that the petitioner is in occupation of land bearing Survey No.78 + 107/3 admeasuring 3 Acres and 5 gunthas of Village-Ranpura (Aathmano Vas), Taluka-Deesa, District-Banaskantha. The said land was purchased by the petitioner's deceased father Khetaji Achalji Mali on 30.10.1974. It is also undisputed fact that original Survey No.78 + 170 was Pasayata Chakariyat Inami land admeasuring 10 Acres and 27 gunthas. Out of that, land admeasuring 7 Acres and 22 gunthas was purchased by Nagaji Ukaji and Chamanji Damarji. It is also undisputed fact that in view of Government Resolution dated 11.6.1968, prayer of Nagjibhai Ukaji and Chamanji Damarji for converting said land from New Tenure to Old Tenure for agricultural purpose was granted in 1980. Thus, major portion of same land, which was possessed by two other Page 8 of 11 Downloaded on : Thu Mar 10 23:52:28 IST 2022 C/SCA/2982/2014 JUDGMENT DATED: 10/03/2022 persons, has already been converted from New Tenure to Old Tenure for agricultural purpose. It is also an admitted fact that, at the relevant time, neither petitioner's father nor the petitioner made any application for conversion of portion of land from New Tenure to Old Tenure land, which they have purchased from original owner. However, thereafter, the petitioner has prayed to convert the land from New Tenure to Old Tenure, which came to be initially rejected in the year 2004. Against which the petitioner has moved learned SSRD, who by his order directed the Collector to regularize the land in consonance with the then prevailing Government Resolutions. However, learned Collector instead of regularizing the land has rejected the same, against which the petitioner has also preferred revision before learned SSRD, who remanded the matter to Collector to consider and regularize the same in accordance with Government Resolution. However, instead of passing appropriate order for conversion of land from New Tenure to Old Tenure for agricultural purpose in line of order passed in favour of two other persons viz. Nagjibhai Ukaji and Chamanji Damarji, by misinterpreting Government Resolution learned Collector has rejected the application.
7. It is pertinent to note that considering the hierarchy, learned Collector ought to have obeyed the order of learned SSRD for regularization or for passing appropriate order for conversion of land from New Tenure to Old Tenure on the basis of Government Resolution. At this juncture, it is pertinent to note that even the Government has accepted the position that due to illiteracy the farmers may not be in a position to get the benefit of conversion of their land from New Tenure to Old Tenure and, therefore, such ignorance may be taken into Page 9 of 11 Downloaded on : Thu Mar 10 23:52:28 IST 2022 C/SCA/2982/2014 JUDGMENT DATED: 10/03/2022 consideration for conversion of land from New Tenure land to Old Tenure land for agricultural purpose, after taking appropriate premium. At this juncture, it is worthwhile to refer to Government Resolution dated 27.2.2009, which is at page 90 of compilation, which is in relation to regularization of unauthorized occupation under the Bombay Miscellaneous Inaam Abolition Act, 1955. It deals with nature of lands viz. virgin as well as non-virgin land and for regularization of unauthorized occupation, wherein it has been specifically stated that due to ignorance and illiteracy of the farmers, they were unable to apply in time and, since many such cases were pending, time to file appropriate application has been extended. It is specifically prescribed in aforesaid resolution that whenever there is a need to convert New Tenure land to Old Tenure, in that case for considering such application period of limitation for conversion of land from New Tenure to Old Tenure is to be considered from very beginning of occupation as a special case. Thus, in the present case, when present petitioner is similarly situated person in whose favour in the year 1980 order for conversion of New Tenure to Old Tenure for agricultural purpose has been passed, the application of the petitioner ought to have been granted by the revenue authority.
8. It is pertinent to note that, in this case, though appellate authority has directed the Collector to regularize the land on the basis of earlier resolutions, learned Collector, for the reasons best known to him, instead of abiding by the direction of the higher authority rejected the application of the petitioner. Generally, this Court may have directed the petitioner to avail appropriate remedy of filing revision before Page 10 of 11 Downloaded on : Thu Mar 10 23:52:28 IST 2022 C/SCA/2982/2014 JUDGMENT DATED: 10/03/2022 learned SSRD against the impugned order but, considering the facts and circumstances of the present case, when Collector has disobeyed the order of learned SSRD twice, to direct the petitioner to approach learned SSRD would be futile exercise. This is a unique case wherein discretionary power under Articles 226 and 227 of the Constitution needs to be exercised against the order of learned Collector, though there is alternative remedy available to the petitioner. The Court may have directed the authority to re-consider the application of the petitioner for conversion of land from New Tenure to Old Tenure for agricultural purpose on payment of premium at the prevalent rate but, in the facts of the present case, the authority needs to be directed to pass appropriate order of conversion of land from New Tenure to Old Tenure land for agricultural purpose on the basis of Government Resolution of 1982, as directed by learned SSRD in order dated 9.6.2006.
9. In view of aforesaid discussion, present petition is allowed. The impugned order dated 23.1.2014 passed by Collector, Banaskantha, is quashed and set aside and the Collector is directed to convert land bearing Survey No.78+170/3 paiki of village-Ranpur (Aathamano Vas), Taluka- Deesa, District-Banaskantha from New Tenure to Old Tenure for agricultural purpose by accepting premium as per Government Resolution dated 16.3.1982, which is referred in order dated 9.6.2006 passed by learned SSRD in Revision Application No.MVV/JMN/BNS/26/2005. Rule is made absolute accordingly. No order as to costs. Direct service is permitted.
Sd/-
(DR. A. P. THAKER, J) R.S. MALEK Page 11 of 11 Downloaded on : Thu Mar 10 23:52:28 IST 2022