Gujarat High Court
Bhikhabhai Ukabhai Solanki vs State Of Gujarat on 9 February, 2023
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/11655/2022 JUDGMENT DATED: 09/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11655 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
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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 ?
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BHIKHABHAI UKABHAI SOLANKI
Versus
STATE OF GUJARAT
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Appearance:
MR AMAR D MITHANI(484) for the Petitioner(s) No. 1
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
DS AFF.NOT FILED (N) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 09/02/2023
ORAL JUDGMENT
1. Rule. Learned AGP waives service of notice of rule on behalf of respondent-State.
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2. A short issue is involved in the matter and, therefore, the same is finally decided today.
3. In the present writ petition, the petitioner has assailed the order dated at 08.11.2021 passed by the respondent no.1 in Revision Application No. MVV/JMN/JNDH/19/2019, confirming the order of the respondent no.2 dated 24.07.2019. A further direction is prayed to extend the lease of the subject matter land of the petitioner.
4. The brief facts leading to the present petition are as under:
4.1. The subject matter of the present proceedings relate to the land bearing Survey No. 64/P/9, admeasuring 1-00-00 Hec.-
Are-sq. mtrs. of Village Chuldi, Taluka Maliya Hatina, District Junagadh (hereinafter referred to as the "land in question/subject matter land").
4.2. The petitioner was allotted the land on lease for 15 years period for cultivating the trees by the order passed by the Collector, Junagadh dated 07.06.1988.
5. It is submitted that with respect to the aforesaid allotment order Entry No. 641 was certified in the revenue record on 25.04.1989.
5.1. Learned advocate Mr.Mithani has contended that the petitioner's family, by putting hard labour and incurring Page 2 of 8 Downloaded on : Wed Feb 15 20:34:47 IST 2023 C/SCA/11655/2022 JUDGMENT DATED: 09/02/2023 expenditure, has cultivated the fruit growing trees on the said land, and has constructed a well for better irrigation and cultivation at the cost of Rs.2,00,000/- approximately, has installed the diesel engine costing about Rs.50,000/-, and to protect the trees, crop from the animals, the petitioner has constructed the compound wall by incurring expense of Rs.1,00,000/- approximately. It is submitted that fully grown aged fruit bearing trees standing over the land in question, even today, which includes the trees of mangoes, chikoo, guavas etc. 5.2. Learned advocate Mr. Mithani has further placed reliance on the judgment dated 05.09.2014 passed in Special Civil Application No.14445 of 2008 and has submitted that the lease cannot be terminated only for the reason that the petitioner has failed to grow 1000 trees. It is submitted that after the show cause notice dated 19.06.2019 was issued to the petitioner for termination of the lease deed, the petitioner, vide his reply and affidavit, had pointed out to the authorities that there were 318 standing trees over the land and further trees were planted and total number would be 444 trees. It is submitted that the respondent authorities including the Special Secretary Revenue Department has failed to appreciate the fact that growing of the trees would always depend upon the nature of soil and irrigation facilities and lease can not be terminated only for the reason that the petitioner is unable to grow 1000 trees as mentioned as per the provisions of Government Resolution dated 10th June 2003. Thus, it is submitted that the impugned orders may be set aside.
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6. Per contra, learned AGP Mr. Jayneel Parikh has submitted that the lease, which was granted to the petitioner was already expired on 06.06.2003 and hence, the respondent authorities have thought it fit not to extend the aforesaid period, more particularly, since the petitioner was unable to grow 1000 trees as per the policy (i.e. Government Resolution) dated 10 th June, 2003.
6.1. Finally, it was submitted by the learned AGP that in case, any order was passed, directing the respondent to consider the case of the petitioner then this court may observe with regard to the intervening period after the lease has been expired in the year 2003.
7. I have heard the learned advocates appearing for the respective parties.
8. The impugned order dated 08.11.2021, passed by the Special Secretary Revenue Department reflects that the lease of the petitioner has not been extended, in view of the provisions of the Government Resolution dated 10 th June 2003, wherein, it is referred that after the land is allotted by lease, the concerned person shall grow 1000 trees on such land, which is leased. The condition of the Government Resolution dated 10th June 2003 with regard to the growing of 1000 trees is incorporated in condition No. 4.3.
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9. Petitioner is using the aforesaid land since 1988 and has been continuously earning his livelihood by cultivating the said land, which appears to be different fruits, more particularly, mango, chikoo, guava etc. The aforesaid land is ordered to be confiscated on the ground that there are 444 trees on the land instead of 1,000 trees.
10. At this stage, it would be apposite to notice the observations made by the Co-ordinate Bench of this Court in the judgment dated 05.09.2014 passed in Special Civil Application No.14445 of 2008, wherein and whereby the Co-ordinate Bench of this Court, while examining analogous issue and the provisions of the Resolution dated 10 th June, 2003, has held thus :
"6. In view of these rival submissions and having regard to the background of the facts, it is evident that the land was allotted in the year 1973 for growing fruit bearing trees. It is not in dispute that the fruits bearing trees are grown by the petitioner. It is not in dispute that there is no other purpose, for which, it is used. Only the ground is that the fruits bearing trees have not been grown as per the policy of the GR dated 10.06.2003. As per this GR, 1000 fruits bearing trees are required to be grown per hector and as there are no sufficient number of trees, the order came to be passed. However some crops could be grown depending upon the season of the fruit bearing trees, which is not prohibited. Therefore, the issue is not with regard to other use of the land or breach of the land. Only point is that sufficient number of trees are not grown as per GR dated 10.06.2003. The collector while passing the order at Annexure-L has also based on the report of the Mamlatdar, Visavadar that fruit bearing trees have been grown and, therefore, it cannot be said that the petitioner has not developed or grown fruit bearing trees. In fact, he has also Page 5 of 8 Downloaded on : Wed Feb 15 20:34:47 IST 2023 C/SCA/11655/2022 JUDGMENT DATED: 09/02/2023 made the development and has also grown fruit bearing trees, however along with that, the reason is that he has cultivated other crops also, which has been basis for the order passed by the Collector, Junagadh dated 04.07.2008 at Annexure-L. This order is assailed by the petitioner before the Special Secretary (Appeals) and the Secretary (Appeals) relying upon the GR dated 10.06.2003 has confirmed the order on the ground that sufficient number of fruit bearing trees are not grown. The resolution and the background which clearly point out that it is not the total lack of any effort to grow trees but it is only number of trees, which are not found to be sufficient. However considering the fact that the petitioner has been growing fruit bearing trees throughout and even as per the report of Mamlatdar, Visavadar also, he has been growing fruit bearing trees. Merely because 1000 trees per hector has not been grown as per GR dated 10.06.2003, it cannot be a ground to confiscate the land. At the most, it could be considered as a lapse and could have been directed to comply with the same in future. Therefore, considering this background of the facts, the present petition deserves to be allowed.
7. In the circumstances, the present petition stands allowed. The impugned order at Annexure-A dated 07.11.2008 and the order of the Collector dated 09.07.2008 at Annexure-L are hereby quashed and set aside. It is also directed that the petitioner shall make an endeavour to grow the fruits bearing tress as per the GR dated 10.06.2003 and shall comply with such requirement for future. Rule is made absolute."
11. Thus, this Court, after examining the provisions of Government Resolution dated 10th June, 2003 has held that growing of the fruits or trees would depend upon the season of the concerned fruits bearing trees and the land cannot be confiscated only for the reason that there is a breach of not Page 6 of 8 Downloaded on : Wed Feb 15 20:34:47 IST 2023 C/SCA/11655/2022 JUDGMENT DATED: 09/02/2023 growing 1000 fruits bearing trees.
12. It is specifically held that the Resolution dated 10 th June, 2003 does not point out that there is a lack of place in growing the trees, but it is only number of trees, which are found to be insufficient and land cannot be confiscated merely on the said reason since throughout all these years, the lease holder has been growing the fruit bearing trees.
13. It is specifically held that at the most of not growing 1,000 trees can be said to be a lapse and for this lapse, the land cannot be confiscated. Finally, the Coordinate Bench has set aside such orders and the concerned petitioner was directed to grow 1,000 trees as per the G.R. dated 10 th June, 2003.
14. Under the circumstances, in the present writ petition, the petitioner has already grown 444 trees and he shall make further endeavour to see that the trees are planted or grown as per the provisions of G.R. dated 10 th June, 2003 and he shall also comply with such requirements of the G.R. dated 10 th June, 2003.
15. The respondent authorities are hence directed to consider the case of the petitioner in light of the observations made by this court for extending the lease or re-newing of the lease.
16. It is further clarified that liberty is reserved in favor of the Page 7 of 8 Downloaded on : Wed Feb 15 20:34:47 IST 2023 C/SCA/11655/2022 JUDGMENT DATED: 09/02/2023 respondent-authorities to pass appropriate orders with regard to the intervening period from 6 th June, 2003 till the order of re- granting or extension of lease of the concerned land is passed.
17. It will also be open for the respondent-authorities to claim any rental income or any deposit for the intervening period, if they so desire, in case they desire to renew the lease and re- grant the land of the petitioner.
18. It will also be open for the petitioner to file appropriate application seeking reduction of the number of trees to be grown. If such application is filed, the same shall also be considered, while examining the case of the petitioner for renewal or extension of the lease.
19. The impugned orders are set aside. The present petition is allowed. Rule is made absolute.
20. Necessary decision shall be taken by the authority within a period of three months from the date of receipt of writ of this order.
Direct service is permitted.
(A. S. SUPEHIA, J) KUMAR ALOK Page 8 of 8 Downloaded on : Wed Feb 15 20:34:47 IST 2023