Gujarat High Court
Sajni Rajanbhai Shah vs State Of Gujarat - Through Revenue ... on 6 September, 2019
Equivalent citations: AIRONLINE 2019 GUJ 331
Author: Anant S. Dave
Bench: Anant S. Dave, Biren Vaishnav
C/LPA/66/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 66 of 2017
In
R/SPECIAL CIVIL APPLICATION NO. 2200 of 2012
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
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R/LETTERS PATENT APPEAL NO. 72 of 2017
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SPECIAL CIVIL APPLICATION NO. 1646 of 2012
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R/LETTERS PATENT APPEAL NO. 73 of 2017
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SPECIAL CIVIL APPLICATION NO. 1633 of 2012
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R/LETTERS PATENT APPEAL NO. 75 of 2017
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SPECIAL CIVIL APPLICATION NO. 1644 of 2012
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R/LETTERS PATENT APPEAL NO. 76 of 2017
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SPECIAL CIVIL APPLICATION NO. 6335 of 2012
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R/LETTERS PATENT APPEAL NO. 77 of 2017
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SPECIAL CIVIL APPLICATION NO. 6152 of 2012
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R/LETTERS PATENT APPEAL NO. 78 of 2017
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SPECIAL CIVIL APPLICATION NO. 6146 of 2012
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SPECIAL CIVIL APPLICATION NO. 7050 of 2012
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SPECIAL CIVIL APPLICATION NO. 6159 of 2011
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R/LETTERS PATENT APPEAL NO. 125 of 2017
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MISC. CIVIL APPLICATION (FOR REVIEW) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 42 of 2018
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SPECIAL CIVIL APPLICATION NO. 17238 of 2017
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In R/LETTERS PATENT APPEAL NO. 72 of 2017
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SPECIAL CIVIL APPLICATION NO. 1646 of 2012
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In R/LETTERS PATENT APPEAL NO. 73 of 2017
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In R/LETTERS PATENT APPEAL NO. 75 of 2017
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SPECIAL CIVIL APPLICATION NO. 1644 of 2012
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In R/LETTERS PATENT APPEAL NO. 76 of 2017
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In R/LETTERS PATENT APPEAL NO. 77 of 2017
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
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CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2017
In R/LETTERS PATENT APPEAL NO. 124 of 2017
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SPECIAL CIVIL APPLICATION NO. 6158 of 2011
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CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2017
In R/LETTERS PATENT APPEAL NO. 125 of 2017
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SPECIAL CIVIL APPLICATION NO. 6157 of 2011
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CIVIL APPLICATION (FOR JOINING PARTY) NO. 2 of 2017
In R/LETTERS PATENT APPEAL NO. 125 of 2017
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SPECIAL CIVIL APPLICATION NO. 6157 of 2011
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CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
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SPECIAL CIVIL APPLICATION NO. 17975 of 2011
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In R/LETTERS PATENT APPEAL NO. 2433 of 2017
In
SPECIAL CIVIL APPLICATION NO. 15607 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE sd/-
and
HONOURABLE MR.JUSTICE BIREN VAISHNAV sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed to No see the judgment ?
2 To be referred to the Reporter or not ? Yes 3 Whether their Lordships wish to see the fair copy of the No judgment ?
4 Whether this case involves a substantial question of law No as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== SAJNI RAJANBHAI SHAH Versus STATE OF GUJARAT - THROUGH REVENUE SECRETARY & other(s) ========================================================== Appearance:
Letters Patent Appeals No.74/2017, 73/2017, 76/2017, 82/2017, 77/2017, 121/2017, 78/2017, 81/2017, 80/2017, 116/2017, 75/2017, 72/2017, 79/2017, 66/2017 and 120/2017 with connected IAs:
Mr.S.N.Shelat, learned Senior Advocate with Mrs.V.D.Nanavati for the appellants Letters Patent Appeals No.125/2017, 124/2017 and 123/2017 with connected IAs: Mr.Mihir Thakore, learned Senior Advocate with Mr. Salil M. Thakore, learned advocate for the appellants Letters Patent Appeals No.2431/2017, 2432/2017 and 2433/2017 with connected IAs:
Mr. D.A. Sankhesara, learned advocate for the appellants Page 6/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT Misc. Civil Application No.1/2019 in LPA No.42/2018:
Mr.Siddharth H. Dave, learned advocate for the applicant.
In All Letters Patent Appeals and IAs:
Mr.Prakash Jani, learned Additional Advocate General and Mrs.Manisha Lavkumar Shah, learned Government Pleader with Ms.Nisha M.Thakore and Ms.Nidhi Vyas, learned Assistant Government Pleaders for the respondents - State & its authorities. ========================================================== CORAM:HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE and HONOURABLE MR.JUSTICE BIREN VAISHNAV Date : 06/09/2019 COMMON C.A.V. JUDGMENT (PER : HONOURABLE THE ACTING CHIEF JUSTICE ANANT S. DAVE)
1. All these appeals filed under Clause 15 of the Letters Patent arise against common judgments and order rendered by learned Single Judge in the writ petitions, the issue involved is also common, hence, with the consent of learned counsel for the respective parties, they have been heard together and are being disposed of by this common judgment.
2. In the first set of petitions, i.e. Special Civil Application Nos.6157 of 2011, 6158 of 2011 and 6159 of 2011 against which Letters Patent Appeals No.125/2017, 124/2017 and 123/2017 are filed by the appellants -
original petitioners, directions were sought against the Collector, Gandhinagar, to take steps under Section 79A of the Gujarat Land Revenue Code, 1879 ("the Code") to summarily evict whoever was in Page 7/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT occupation or possession of the lands in question, and to hand over possession thereof to the petitioner. The petitioner had also sought directions against the respondent No.1 to exercise its powers under Section 88D of the Gujarat Tenancy and Agricultural Lands Act, 1948 ("the Tenancy Act") and to withdraw the exemption granted to the lands in question under Section 88A of the Tenancy Act. The petitioner had also sought declaration that the sales/transfers of the lands in question are contrary to law, void, having no effect and that the petitioner had the complete and lawful right, title and interest over the lands in question.
3. In the second set of petitions, i.e. Special Civil Application Nos.17975/2011, 1633/2012, 6335/2012, 6336/2012, 6152/2012, 7050/2012, 6146/2012, 1639/2012, 1640/2012, 1643/2012, 1644/2012, 1646/2012, 2199/2012, 2200/2012 and 6452/2012, against which Letters Patent Appeals No.74/2017, 73/2017, 76/2017, 82/2017, 77/2017, 121/2017, 78/2017, 81/2017, 80/2017, 116/2017, 75/2017, 72/2017, 79/2017, 66/2017 and 120/2017, the original petitioners - appellants had challenged the show-cause notices issued by the respondent authorities under Section 79A of the Code calling upon them to show cause as to why action should not be taken in respect of the subject lands, which were allotted under the Bhoodan Yagna, to the respective donees for their personal cultivation, and the said lands having been sold out by such donees in violation of the conditions of the Bhoodan Lekh. Page 8/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT
4. In the third set of petitions, i.e. Special Civil Application No.2193 of 2012, No.10319 of 2013 and No.10322 of 2013, decided vide above stated common judgment Letters Patent Appeals have not been filed.
5. Letters Patent Appeals No.2431/2017, 2432/2017 and 2433/2017, have been preferred in Special Civil Applications No.15605/2017 to 15607/2017 which came to be rejected by a separate order dated 8.09.2017 by learned Single Judge (Coram: Hon'ble Mr.Justice J.B.Pardiwala). The respondent authorities initiated action under the provisions of the Code against the petitioners therein, the alleged subsequent purchasers of the subject lands from the persons who were allotted the lands by way of Sathani from the lands received by the Bhoodan Samiti in Bhoodan Yagna, hence they challenged the orders passed by the respondent authorities refusing to regularize the possession and occupation of the petitioners over Bhoodan lands.
6. Insofar as the first set of petitions is concerned, the learned Single Judge did not entertain the petitions as the respondent Bhoodan Samiti had already instituted the Civil Suit being No.294/2009 in respect of the subject Bhoodan lands which is pending before the competent Court for adjudication, apart from the fact that the petitions involved many disputed questions of facts. The said petitions, therefore, were dismissed without expressing any opinion on the merits.
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7. As regards second set of petitions, learned Single Judge came to a conclusion that the respective petitioners who appear to be the subsequent purchasers of lands originally donated in Bhoodan Yagna, had challenged the show-cause notices issued by the respondent authorities under Section 79A of the Code, therefore, such petitions being premature, could not be entertained at the stage of show cause notice, and accordingly, such petitions were dismissed.
8. Qua the last set of petitions, wherein the petitioners who were the subsequent purchasers of the lands originally donated in the Bhoodan Yagna having challenged the orders passed by the respondent authorities in respect of the actions taken under the provisions contained in the Code, such challenge same came to be negatived by learned Single Judge.
9. While dismissing all the three set of writ petitions, the learned Single Judge (Coram: Hon'ble Ms.Justice Bela M.Trivedi) has issued certain directions to the State Government, which have been quoted hereinafter.
10. Mr.Mihir Thakore, learned Senior Advocate with Mr. Salil M. Thakore, learned advocate has appeared on behalf of the petitioners in the first set of appeals, and has made the following submissions:
(i) In the first instance, it is submitted that the appellant is the owner of the land in question. The appellant's father Shri Babubhai Surti gave the lands under Bhoodan to Takhuji Vajalji for use for personal cultivation only. The lands were given under the Bhoodan Lekh which is an unregistered Page 10/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT document. Under Section 9 of the Transfer of Property Act, transfer of "a property may be made without writing in every case in which is a writing is not expressly required by law". However, under Section 123 of the Transfer of Property Act which applies to gifts of immoveable property, "for the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor and attested by at least two witnesses...". It is submitted that as there is no registered document, there is no gift in the eye of law and consequently there is no transfer of title from the appellant's father to Takhuji Vajalji. As a necessary corollary thereof, the appellant's father in his lifetime continued to be the owner of the land and on his death, his heirs including the appellant became the owners of the land.
(ii) It is next submitted that by way of oral releases, the appellant's brothers and sisters who are all heirs of Babubhai Surti released their rights in the land in question. The result of an extinguishment/release is that the person making release walks out/ceases to be owner of the property and his share falls on the remaining persons. As all the children/heirs of Babubhai Surti released their rights, the share of the appellant who is one of the children of Babubhai Surti and a co-owner of the land even otherwise (in his capacity as heir of Shri Babubhai Surti) enlarged and the appellant became the owner of the entire land that Page 11/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT belonged to Shri Babubhai Surti. It is submitted that there is no provision in law which says that a release cannot be done orally. It is submitted that the documents on record are not release deeds but are merely memorandums recording oral releases and hence do not require registration. In support of the above submission, reliance is placed on Ramdas Chinna v. Pralhad Deorao - AIR 1965 Bom 74 and Gauri Bai and Others v. Gaya Bai - AIR 1927 Nag 44: MANU/NA/0026/1926.
(iii) It is next submitted that the private respondent purchasers have no title over the land and are, in any event, individuals/entities who have purchased the land with full knowledge that the land is Bhoodan land and that they are not entitled to retain the same. That each of the subsequent purchasers purchased the land with full knowledge that it was a land given in Bhoodan which is evident from the recitals of the different sale deeds which specifically refer to the land being Bhoodan land.
(iv) The next submission made by learned Senior Advocate is that the State has no title in the land as there is no provision of law whereunder the State would become owner of the land and in the absence of any provision of law, an owner cannot be divested of his proprietary rights. The land has always been of the ownership of Babubhai Surti or heirs and the title has always been with him. It is submitted that the State can exercise powers Page 12/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT under Section 88D of the Gujarat Tenancy and Agricultural Lands Act, 1949 as well as under Section 79A read with Section 68 of the Land Revenue Code in this regard and it ought to be directed to do so.
(v) It is submitted that as the object of both the Bhoodan movement and the Tenancy Act were almost identical namely that the landless labourer or landless person should have land and he/ they should personally till the land, all the provisions of the Tenancy Act occurring previous to Section 88A were not made applicable to lands transferred to or by the Bhoodan Samiti. That in case of Bhoodan lands, the condition of personal cultivation and non-alienability were annexed to the tenure. This being the condition annexed to the tenure, there was no objective purpose of applying the provisions of the Tenancy Act to such lands. Hence, Section 88A was introduced in the Tenancy Act. In fact, Section 88D(1)(ii) of the Tenancy which empowers the State Government to withdraw the exemption (under Section 88A) if the lands transferred by the Bhoodan Samiti "are not cultivated personally by the transferee or are alienated by them" statutorily recognizes the conditions of non-alienability and personal cultivation annexed to Bhoodan land. No exemption would have been granted to Bhoodan lands if such conditions had not been annexed to Bhoodan lands as otherwise, the lands could have been alienated or used other than for personal cultivation which would defeat the purpose of the Tenancy Act. It Page 13/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT is submitted that the conditions of non-alienability and personal cultivation were annexed to the tenure when the lands were given to or by the Bhoodan Samiti, and any breach by the person getting the land of such condition would be a breach of the condition of tenure entitling the State to take action of summary eviction under Section 79A of the Gujarat Land Revenue Code, 1879. It is submitted that that if the occupant does not use the land as per the terms and conditions lawfully annexed to the tenure i.e. if he ceases to personally cultivate the land or transfers the inalienable land, he or any subsequent transferee ceases to be entitled to the use or occupation of such land as there is a breach of Section 68 and 73 of the Land Revenue Code and the Collector is entitle to summarily evict the person under Section 79A of the Land Revenue Code. The conditions of non-alienation and personal cultivation are terms and conditions lawfully annexed to the tenure or holding of Bhoodan land under the grant and recognized under the Tenancy Act as well as under the Gujarat Land Ceiling Act. That any violation of the terms or conditions lawfully annexed to the tenure is a violation of Section 68 and 73 of the Land Revenue Code. In view of this, the occupation or possession of the land in question by the respondents or whichever of them who are in possession or in occupation or possession is unauthorized and wrongful and the said respondents are not entitled to the use or occupation of such land by reason of the provisions of the Land Revenue Code. The State authority Page 14/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT has sufficient powers to summarily evict such a person under Section 79A of the Land Revenue Code and ought to have done so. On such summary eviction of the land as the land does not belong to the State, the Collector would be required to hand over the possession of the land to the owners thereof.
(vi) It is further submitted by learned Senior Advocate that under Section 88D(1)(ii), the State has the power to withdraw the exemption if the State Government is satisfied that the lands are not cultivated personally by the transferred or are alienated and as such, the State ought to be directed to exercise the said power.
(vii) It is submitted that in the aforesaid background of the case, a writ petition under Article 226 would be maintainable and suit is not an alternative and equally efficacious remedy. The appellant inter alia prayed for a writ of mandamus commanding the State to take action under Section 79A and Section 88D and a writ petition was the remedy for the reliefs prayed for. In the pending suit, the appellant is neither a party nor can the appellant seek the reliefs sought in this petition. Further, various issues pertaining to violation of conditions annexed to Bhoodan lands are being adjudicated by this Hon'ble Court in a batch of various petitions pending before this Hon'ble Court. Even otherwise, there are various common Page 15/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT issues arising in the appellant's matters and the other matters. As such, when these issues are already being adjudicated upon by this Hon'ble Court, the appellant ought not to be relegated to a suit. In support of this submission, reliance has been placed upon various decisions of the Hon'ble Supreme Court and this Court.
(viii) Without prejudice to the submission that the appellant ought not to be relegated to a civil suit, it is submitted that if at all the petitions were to be rejected on the ground of alternative remedy, the Hon'ble Court ought not to have made any observations on the merits of the case. In the impugned judgment, the learned Single Judge has made observations on merits in paragraph 25 to 27 of the judgment. It is submitted that when a petition is being rejected on the ground of alternative remedy, the Hon'ble Court cannot make observations on the merits of the matter. In support of this contention, reliance is placed on the judgment of the Hon'ble Supreme Court in Tin Plate Co. of India Ltd vs. State of Bihar And Ors., reported in 1998 Supp(2) SCR 547.
(ix) Lastly, it is submitted that the petitions were filed well within limitation of the alienations and most certainly well within limitation of knowledge of the breaches and therefore, the there is no delay or latches involved in filing the writ petitions. Even otherwise, the heirs of Takhuji Page 16/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT Vajalji and the subsequent purchasers have committed a fraud as the transactions have taken place with full knowledge that these are Bhoodan lands and therefore, the principle of delay and latches would not apply.
On the above grounds, it is submitted by learned Senior Advocate that the first set of appeals be allowed by quashing and setting aside the judgment rendered by learned Single Judge impugned qua these appeals.
11. In the second set of appeals wherein show cause notices were been impugned before the learned Single Judge, Mr.S.N.Shelat, learned Senior Advocate has appeared with Mrs.V.D.Nanavati and Dhara M.Shah, learned advocates on behalf of the appellants, and has made the following submissions:
(a) In the first instance, it is submitted by learned Senior Advocate that the appellant challenges the notice dated 29.11.2010 and 11.7.2011 issued by the Prant Officer, Sector-11, Gandhinagar, under the provisions of Section 79A of the Gujarat Land Revenue Code. It is submitted that Prant Officer is not competent to invoke the provisions of Section 79A of the Gujarat Land Revenue Code. Section 79A is not applicable in view of the fact that, (a) the Government is not the owner of the land, (b) There is no grant of land by the Government to Thakore Maganji, (c) Thakore Maganji has received it by way of donation/gift and he is owner/occupant of the land from 26.06.1957, (d) Government acted only as a facilitator to Page 17/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT put in possession Shri Thakore Maganji on 26.6.1957, (e) The Bhoodan Samiti is not a corporate sole or legal entity but merely was a facilitator with the donor, donee (Thakore Maganji) and the Government in handing over possession and occupation to Thakore Maganji, (f) The lands are not vested in Bhoodan Samiti, (g) There is no privity of contract, nor privity of estate, nor any legal relationship between the Government Samiti and Thakore Maganji, and (h) The provisions of Tenancy Act are not invoked.
(b) It is next submitted that occupation of the appellant is not unauthorized and therefore, Provisions of Section 79A (1) and (2) of the Code will not be attracted. It is submitted that the powers under Sections 62, 67 and 68 of the Gujarat Land Revenue Code deal with grant of land by the Government to an individual occupant on conditions to be laid down. The grant of land in favour of Thakore Maganji is by way of donation by the owner through Bhoodan Samiti and the Samiti acted as facilitator for handing over the possession and occupation to Thakore Maganji. The Samiti is not the owner of the land nor Government is the owner of the land. That likewise, Section 68 would applicable where the grant is made by the Government. In view of above, the notice is required to be quashed and set aside. In support of this submission, reliance is placed upon decision in the case of The Secretary of State for India vs. Chimanlal Jamnadas reported in AIR 1942 (Bombay) 161 (Para 19, 20 and 21). Page 18/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT
(c) It is further submitted by Mr.S.N.Shelat, learned Senior Advocate that as such, the challenge to the show cause notice is on the ground of non-applicability of Section 79A of the Gujarat Land Revenue Code and assuming the jurisdiction vested in the Prant Officer, reliance is placed upon decision in the case of State of Himachal Pradesh vs. Gujarat Ambuja reported in AIR 2005 SC 3936 (Paras 19 to 24).
(d) It is further submitted that at the instance of the State Government the learned Single Judge permitted the State Government to file further documents which may be relevant for the purpose of deciding the controversy. The State Government has produced several documents.
Both the sides have addressed the matter on merit. The learned Single Judge was therefore not right after recording prima facie findings to direct the appellant to approach the Prant Officer.
(e) It is contended that the order permitting new tenure to old tenure is invalid and nullity, since, on 27.02.2002 the order is passed for new tenure to old tenure on payment of sixty times the assessment; on 20.04.2002 Thakore Maganji sold the land to Patel Narsinhbhai, on 23.05.2002 the Entry was certified; on 21.04.2006 Narendrasinh sold the land to the petitioner; on 06.06.2006 such Entry came to be recorded which came to be certified on 12.09.2006; and on 25.01.2010 Show cause notice under Section 79A of the Code came to be issued. It is submitted that the show-cause notice is issued after the period of eight years which Page 19/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT cannot in any terms be said to be a reasonable period within which the show cause notice could have been issued, more particularly, after third party rights have been created.
(f) It is submitted that therefore, the orders which are null and void are also required to be set aside. Reliance is placed upon decision in the case of Pune Municipal Corporation v. State of Maharashtra reported in AIR 2007 SC 2414, to submit that the notice issued by the Prant Officer is required to be quashed, more particularly, in view of above, delay of 8 years as the petitioners are bona fide purchasers and have purchased the land from not original owner, but subsequent purchaser and the original donor/owner has not objected to any of the transactions. It is submitted that the State Government cannot therefore be permitted to contend that the transactions are unlawful and unauthorized.
(g) It is submitted by learned Senior Advocate that the Government has relied upon Bhoodan Yagna Act, 1953, which is not applicable to the present transaction as the said Act is not made applicable to the territories within the State of Gujarat. The Government has also relied upon Circular/instruction dated 22.07.1955 which is only for removal of difficulties and does not provide for facilitating the transaction from donor to donee. That Circular dated 06.09.1969 provides for facilitating mutation Page 20/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT entries. Further Views/instructions dated 08.09.1980 from the Section Officer of the Revenue Department to the Collector, Valsad, are also not relevant. That an internal communication between the Revenue Department and the Collector and not an instrument under Article 166 nor enforceable against the appellants. It is submitted that communication dated 03.11.1988 is addressed to Collector, Himmatnagar by the Section Officer and cannot create any right in favour of the Government, apart from the fact that it is not communicated to the original predecessor-in-title. It is submitted that the appellants are the owners of the property or their predecessors and they cannot be deprived of the property in absence of any law on the subject. It is also submitted that such Circular is not enforceable against the present transaction as the transaction is facilitated in the year 2002. In view of above, it is submitted that the show-cause notice are required to be quashed and set aside.
(h) Learned Senior Advocate has further submitted that the State Government has placed reliance upon the Resolution dated 4.7.2008. The said resolution cannot be made applicable as the permission is granted prior thereto and it cannot be treated to be retrospective. In support of this submission, reliance is placed upon decision in the case of State of Bihar v. Project Unchcha Vidya Sikshak Sangh & Anr. reported in (2006) 2 SCC 545 (Para 65 to 73). It is held that the Apex Court has held that the State Page 21/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT Government in exercise of its executive authority cannot infringe the right of citizen. Reliance is also placed upon State of UP and Anr. v. Johri Mal reported in (2004)4 SCC 714 (para 42) to submit that executive instructions are not enforceable.
Summing up, it is submitted by learned Senior Advocate that the impugned judgment qua second set of petitions deserves to be quashed and set aside, same being bad in law.
12. Mr.D.A.Sankhesara, learned advocate for the appellants in Letters Patent Appeals No.2431/2017, 2432/2017 and 2433/2017, as well as Mr.Siddharth H. Dave, learned advocate for the applicant in Misc. Civil Application No.1/2019 (For Review) in Letters Patent Appeal No.42/2018, have made similar submissions to consider the case of the petitioners therein for regularizing the land on the lines as canvassed by learned Senior Advocates for the appellants in other appeals.
13. On behalf of the State Government, Mr.Prakash Jani, learned Additional Advocate General and Mrs.Manisha Lavkumar Shah, learned Government Pleader have appeared with Ms.Nisha M.Thakore, learned Assistant Government Pleader.
As regards the first set of appeals, the following submissions have been advanced on behalf of the State:
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(i) That the lands donated by the land-owners to the Bhoodan Samiti recognized by the State Government were granted exemption from the applicability of the provisions of the Tenancy Act and could not have been sold or transferred by the allottees in favour of the third party. It was for the Bhoodan Committee to further distribute such lands to the landless persons.
(ii) That the donee was in occupation of the land akin to a grantee or lessee in whose favour the land was granted subject to certain conditions under the Code. The rights of the donee were that of an occupant and were heritable, but not partiable, and therefore, the donee had no right to sell such lands. Reliance is placed on the Saurashtra Bhoodan Yagna Act, 1953, and on the decision of this Court in case of Mavjibhai Haribhai Patel bs. State of Gujarat, reported in 2005 (4) GLR 3696, in support of this submission.
(iii) That no privity of contract existed between the donor and the donee and the gift was neither conditional, nor contingent upon the occurrence of any event.
(iv) That the land given in Bhoodan Yagna had very restricted use i.e. agricultural and therefore there was no question of changing the tenure by the donee or allottee.
(v) That the overall control and supervision of the Bhoodan Movement and disbursement of the lands through the Bhoodan Samiti was with the Page 23/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT State Government and therefore certain exemptions were granted to the Bhoodan lands from the applicability of various statues.
(vi) That certain petitions preferred by the petitioner through power-of-
attorney holder were not maintainable, much less at the instance of the petitioner as the petitioner had only limited 1/3rd share in the land in question.
(vii) That Bhoodan Lekh witnessed offering of the lands in presence of two witnesses of Bhoodan Samiti as recognized by the State Government and the revenue entries in terms of Bhoodan Lekh were made reciting the conditions for the grant of the land. When the lands were offered in Bhoodan Yagna, the owners or donors were divested of all interests in the said lands and such lands were to be managed and appropriately disbursed to the landless persons as determined by the Bhoodan Committees recognized by the Government. The Government while facilitating the said laudable cause had lifted the rigors of various land laws.
(viii) That the "Daan Patra" or "Bhoodan Lekh" was a document recording the relinquishment of all rights, title or interest of the donor in the land and offering the same to Bhoodan Yagna and thus, as such there was no document conveyancing the gift of immovable properties, which would require registration under Section 17 of the Registration Act. Page 24/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT
(ix) That the then Bombay State had issued circular, whereby several executive instructions in connection with the Bhoodan Yagna movement were issued. Thereafter also communications dated 8.9.1980 and 3.11.1988 were issued to the Collectors of the State to the effect that the donors would not have any right over the lands and such lands were required to be vested in the State Government. The necessary instructions were also issued by the Government as per the circular dated 6.1.2004, which should be construed as the executive instructions in view of the settled legal position propounded by the Supreme Court in case of Gulf Goans Hotels Co. Ltd. and Anr. Vs. Union of India and Ors., reported in (2014) 10 SCC 673.
In respect of the second set of appeals, in which show cause notices were impugned, the following submissions have been advanced on behalf of the State:
It is submitted that the petitions challenging the impugned notices were not maintainable as the petitioners have been called upon to give reply to the notices only, which do not affect or take away any rights of the petitioners and all the issues including the issue of jurisdiction could be raised before the concerned authority. It is submitted that the lands in question have been granted under the Bhoodan Yagna spearheaded by Acharya Vinoba Bhave, and hence, the recipients of the said lands could not have sold or transferred their interest in the said lands. It is submitted Page 25/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT that for encouraging the Bhoodan Movement, the State had made appropriate amendments granting exemption to such lands from the provisions of Tenancy Act, Registration Act, and Stamp Duty Act, and therefore, the State Government was competent to issue necessary instructions with regard to the lands given in Bhoodan Movement. The State Government had issued necessary instructions to the Collector in respect of the Bhoodan land, which were binding to the recipients of such lands also. It is submitted that by virtue of the power vested in the State Government under Article 162 read with List-II (State List), the State Government had issued various notifications and communications stipulating inter alia that the lands which had vested in Bhoodan Committee could not be sold. The further communications were also issued to the District Collector on 8.9.1980 and 3.11.1988, as also on 6.1.2004.
It is submitted on behalf of the State that as per the Bhoodan Yagna Scheme, the grantee/allottee would get only limited right for cultivation. Such allottee had no right to sell such land without the prior permission of the competent authority. The purchaser being aware about such tenure of the land, being Bhoodan land, did not get better title than the allottee. The sale transaction by an unregistered sale deed in respect of the land in question being illegal and contrary to the terms and conditions of grant, the violation thereof had resulted into the vesting of the said land with the Page 26/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT Bhoodan Committee. Landless persons to whom the Bhoodan lands were given had restricted rights and liabilities as the occupants and therefore they could not have sold such lands to anybody. The petitioners had no locus standi to challenge the impugned orders as he was not the party to the proceedings before the competent authorities. The petitioners having purchased the land in question by an unregistered document, did not have any legal or valid right or title or interest in the said land. The orders passed by the competent authorities are legal and valid and do not warrant any interference by this Court.
14. Following judgments have been referred to and relied upon on behalf of the State Government in support of the above submissions:
(i) State of Bombay v. Fakir Umar Dhanse - AIR 1971 SC 722
(ii) Dhinkeshkumar Manilal Parmar v. State of Gujarat - 2000(2) GLH 362
(iii) Ayeshabegam Shaikh v. State of Gujarat - 2016 JX (Guj) 1803
(iv) Jamnagar Properties Pvt. Ltd. V. State of Gujarat - 2017(3) GLR 2067
(v) State of Uttar Pradesh v. Bhrahm Datt Sharma - (1987)2 SCC 179
(vi) Union of India v. Kunisetty Satyanarayana - (2006)12 SCC 28
(vii) State of Bobay v. Patel Harmanbhai Nathabhai - 1961 GLR 471
(viii) State of Punjab v. Surjit Kaur - (2012)12 SCC 155
(ix) Union of India v. Robert Zoawia Street - (2014)6 SCC 707
(x) Sh. Dwarka Prasad Agrawal (D) by LRs v. B.D.Agrawal -
(2003)6 SCC 230, and
(xi) A.V. Papaya Shastry v. State of Andhra Pradesh - (2007)4 SCC 221
15. We have heard learned counsel for the respective parties at length and have carefully gone through the material on record. Various decisions Page 27/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT of Hon'ble Supreme Court have been relied upon on behalf of learned counsel for the respective parties. We have gone through these decisions also. However, for reasons stated hereinbelow, we do not deem it proper to make the judgment bulky by referring to each and every judgment cited at the Bar.
16. Before adverting to decide upon the controversy, at this stage, it would be fruitful to quote from the book, "Vinoba and His Mission", by Shri Suresh Ram, published with an introduction by Shri Jayprakash Narayan and a foreword by Dr. Radhakrishnan, what was thought of about the Scheme of Bhoodan Movement of Shri Vinoba Bhave, as under:-
"The fundamental principle of the Bhoodan Yagna movement is that all children of the soil have an equal right over the Mother Earth, in the same way as those born of a mother have over her. It is, therefore, essential that the entire land of the country should be equitably redistributed anew, providing roughly at least five ares of dry land or one are of wet land to every family. The Sarvodaya Samaj, by appealing to the good sense of the people, should prepare their minds for this equitable distribution and acquire within the next two years at least 25 lakhs of acres of land from about five lakhs of our villages on the rough basis of five acres per village. This land will be distributed to those landless labourers who are versed in agriculture, want to take to it, and have no other means of substance."
17. The background and facts in which the writ petitions came to be preferred before the learned Single Judge have been stated in detail in the Page 28/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT judgment by learned Single Judge and therefore, we do not intend to burden the judgment by reiterating the facts. However, briefly stated, the undisputed facts that emerge from the record are that in all the petitions, the subject lands were donated by the original owners to the respective Bhoodan Committees under the Bhoodan Movement Scheme and the said Committees, in turn, had allotted such lands to landless persons or the agriculturists subject to certain conditions by executing the Bhoodan Lekh (or rather an agreement), with the intervention of the machineries of the State Government. Revenue entries were made in respect of such lands in favour of the donees or allottees as occupants to the effect that such lands were subject to the restrictions, namely, that the lands were allotted for personal cultivation and were new tenure lands and that the lands were heritable but inalienable. However, by afflux of time, said donees/allottees transferred and /or sold such lands to the third parties. In certain cases the State Government has taken action and passed orders against such allottees and subsequent purchasers which were under challenge in the writ petitions. In some cases, action was sought to be initiated by the State authorities by issuing show-cause notices under Section 79A of the Code. Such notices were also challenged in the other set of petitions. In one set of these petitions, the original owners i.e. donors have came forward seeking direction requiring the State authorities to take action Page 29/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT against the donees and the subsequent purchasers seeking resumption of lands in their favour.
18. The Bhoodan Movement or the Land Gift Movement was a voluntary Land Reform Movement India started by Acharya Shri Vinoba Bhave as long back as in 1951, the mission of which was to persuade wealthy land owners to voluntarily give up their lands for the benefit of the landless people. Several States passed special enactments and also carried out amendments in their respective laws pertaining to the Land Reforms. The then Bombay Government carried out amendment in Section 88 of the Bombay Tenancy Act by the Bombay Act-XIII of 1956. The said amendment was applicable to the Bombay area of the State of Gujarat. Upon reorganization and bifurcation of the State of Gujarat, Section 88 was renumbered by the Gujarat Act - XVI of 1960. Section 88A of the Bombay Tenancy Act as applicable to the State of Gujarat, provided inter alia that "nothing in the foregoing provisions shall apply to the land transferred to or by a Bhoodan Samiti recognized by the State Government in this behalf." Section 88D of the said Tenancy Act conferred powers on the Government to withdraw exemption if the State Government was satisfied that the lands transferred by the Bhoodan Samitis were not cultivated personally by the transferees or were alienated by them. However, the Government of Gujarat had not enacted such law though the then Government of Saurashtra had enacted the Saurashtra Bhoodan Page 30/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT Yagna Act, 1953, to facilitate donation and settlement of lands in connection with the Bhoodan Yagna in the then State of Saurashtra. In view of the powers conferred under Section 88 of the Bombay Reorganization Act 1960, Government of Gujarat made the Gujarat Adaptation of Laws (State and Concurrent Subjects) Order, 1960, which came into force on 1.5.1960. By virtue of Section 3 of the said Act, the existing State Laws i.e. the Laws in force immediately before the appointed day in the territories of State of Gujarat, except the Law relating to the matter enumerated in the Union List, were made applicable to the State of Gujarat, subject to alteration or amendment made by the competent legislature. Accordingly, the Bombay Tenancy and Agricultural Lands Act was made applicable to the State of Gujarat. As per Section 88A of the Tenancy Act, the provisions of the said Act did not apply to the lands transferred to or by the Bhoodan Samiti recognized by the State Government in this behalf. However, Section 88D(1)(ii) conferred powers on the Government to withdraw such exemption, if the State Government was satisfied that the lands transferred by a Bhoodan Samiti were not cultivated personally by the transferee or were alienated by them. In such cases, the State Government, after following the procedure as prescribed therein, could withdraw the exemption and make applicable the provisions of the Tenancy Act as stated therein.
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19. Originally, documents called "Bhoodan Lekhs" came to be executed in favour of such landless labourers or agriculturists by the respective Bhoodan Samitis through the intervention of the State machineries, specifically prescribing conditions that such lands were to be cultivated by the allottees personally, not be alienated or transferred. Entries in the revenue records were also made in this regard specifically recording that such lands were donated in the Bhoodan Yagna and were subjected to the said conditions. However, it appears that with the passage of time, the transferees or allottees of such lands, without the permission of the concerned authorities and in utter disregard of the conditions mentioned in the said Bhoodan Lekh, sold out such lands in favour of the third party and in many cases, such third parties have also further transferred such lands to the other parties. It also appears that with the passage of time, the respondent Bhoodan Samitis, which were constituted and recognized by the State Government at the relevant point of time also did not bother to keep a track or monitor such lands to see as to whether the conditions imposed on the transferees or allottees were being complied with by them or not. The State authorities also did not think it fit to monitor the said lands nor did they initiate any action under the Tenancy Act or the Bombay Land Revenue Code though there were flagrant violations of the conditions of Bhoodan Lekh, and the provisions of the said Acts. As a result thereof, the very purpose and the object with which the Bhoodan Yagna Movement Page 32/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT was started and set into motion under the leadership of Acharya Vinoba Bhave and other leaders got completely frustrated. It has also been noticed that in certain cases, the landlords in order to circumvent the provisions of Bombay Tenancy Act, had donated the lands to their own tenants, misusing the offices of Bhoodan Samitis and of the State machineries. The donees/allottees taking undue advantage of the exemption granted to such lands from the applicability of the Tenancy Act, sought to make monetary gains by selling away such lands.
20. It is not in dispute that the land transferred to or by the Bhoodan Samiti recognized by the State Government was exempted from the applicability of the Tenancy Act under Section 88A thereof. Section 88D(1)
(ii) however empowered the State Government to withdraw such exemption, if it was satisfied that the lands transferred by a Bhoodan Samiti were not cultivated personally by the transferees or were alienated. It does not transpire from record that the respondent Gujarat Bhoodan Samiti or Gujarat Sarvoday Mandal was recognized by the then Bombay Government or by the Government of Gujarat for the purposes of Section 88A of the Tenancy Act, or whether State Government had taken any action for the withdrawal of exemption under Section 88D(1)(ii) in case of breach of conditions attached to such allotment of lands under the Bhoodan Movement. As such, if no such Samiti was ever recognized by the State Government for the purpose of Section 88A, the question of Page 33/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT granting exemption or withdrawal of exemption from the applicability of the Tenancy Act would not arise, and the provisions of the Tenancy Act would be applicable to all such agricultural lands. However, it cannot be ignored that the Bhoodan Lekhs were executed in favour of Samitis and the said Samitis had also further allotted such donated lands to the landless persons at the relevant time. The entries in the record of rights were also made at the relevant time. Not only that, it also appears that such documents were exempted from the payment of stamp duties and from the requirement of registration. Under the circumstances, it is required to be presumed that such Samitis must have been recognized by the Government and such lands must have been exempted from the provisions of the Tenancy Act as per Section 88A thereof. Thus, considering the documents on record, and the amendments made in the Tenancy Act in light of the benevolent object and mission of the Bhoodan Movement, it can safely be presumed that the respondent Samitis must have been recognized, may be informally by the State Government at the relevant time. At this juncture, it is also required to be noted that as a consequences of non-applicability of the Tenancy Act in view of Section 88A, the rights of the tenants and the land owners under the Tenancy Act also did not survive and stood determined in respect of the lands transferred to and by the respective Bhoodan Samitis. Page 34/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT
21. As regards applicability of the provisions of the Bombay Land Revenue Code is concerned, the agricultural lands donated by the original owners under the Bhoodan Yagna to the Bhoodan Samitis, recognized by the Government were allotted to the landless persons for their personal cultivation and were subject to the conditions that such lands would be of new tenure and though heritable were inalienable. In certain cases, the State authorities have initiated the action and in some cases, actions have already been taken under Section 79A of the code against the donees/allottees and/or subsequent purchasers for committing breach of the said conditions. Hence, it would be beneficial to reproduce Section 79A of the Code for ready reference:-
"79A. Summary eviction of person unauthorizedly occupying land:- Any person unauthorizedly occupying, or wrongfully in possession of, any land:-
(a) to the use or occupation of which by reason of any of the provisions of this Act he is not entitled or has ceased to be entitled, or
(b) which is not transferable without previous sanction under section 73A or section 73AA or section 73-AB by virtue of any condition lawfully annexed to the tenure] under the provisions of section 62, 67 or 68, Page 35/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT may be summarily evicted by the Collector.
Proviso- Provided that this section shall not apply in the can where the tribal transferor does not make an application under cause [a] of sub-section [3] of section 73AA within the time specified in that clause for restoration of possession."
22. Section 65 of the Code prescribes that any occupant of the land assessed or held for the purpose of agriculture is entitled by himself to erect farm buildings, construct wells etc., or make any other improvement on such land for better cultivation of the land, however, if such occupant wishes to use his holding or any part thereof for any other purpose, he is required to obtain permission from the Collector as contemplated therein. Section 68 of the Code stipulates that the occupant's rights are conditional and the occupant would be entitled to the use and occupation of his land subject to the fulfillment of the terms or conditions lawfully annexed to his tenure. A combined reading of both provisions contained in Sections 65 and 68 makes it clear that the occupant of the agricultural land could not have used the land held by him for the purpose other than the agriculture, except with the permission of the Collector, and that such occupant would be entitled to use and occupy the land subject to the terms and conditions lawfully annexed to his tenure. In case of breach of such terms and Page 36/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT conditions he would cease to use and occupy such land legally and his occupation would be deemed to be unauthorized.
23. Consideration of the above provisions of law in the backdrop of the facts of the present case would reveal that the agricultural lands in question which were otherwise subject to the provisions of the Tenancy Act were deemed to have been granted exemption from the applicability of the Tenancy Act, the same having been transferred to the Bhoodan Samiti recognized by the State Government and such allottees/grantees had acquired the rights and incurred liabilities as the occupants subject to the terms and conditions lawfully annexed to their tenure. Such allottees/occupants instead of cultivating the lands personally, transferred the same without the permission of the Competent Authority to the third parties and for being used for the purpose other than the agriculture. Such occupants therefore were in breach of the conditions annexed to their tenure in contravention of the provisions contained in Section 65 and Section 68 of the Code. Under the circumstances, such persons would be unauthorizedly occupying or wrongfully in possession of such land as contemplated under Section 79A read with Sections 65 and 68 of the Code, liable to be evicted under Section 79A of the Code. The Collector was therefore perfectly justified to take action under Section 79A of the Code against such persons. We are in complete agreement with the conclusion arrived at by learned Single Judge that whenever the occupant Page 37/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT of the agricultural land uses such land for the purposes other than the agricultural, without the permission of the Collector as contemplated in Section 65, and/or commits breach of terms and conditions lawfully annexed to his tenure, as contemplated in Section 68, he would not be entitled to the use and occupation of such land and shall be liable to be evicted summarily under Section 79A of the Code and as a necessary corollary thereof, any person using and occupying such land may be the subsequent purchasers, in violation of the said provisions, would be also unauthorized occupant or in wrongful possession, liable to be evicted summarily under Section 79A of the Code.
24. As stated above, the subsequent purchasers had filed the second set of petitions challenging the show-cause notices issued under Section 79A of the Code on the ground that the authority issuing the notices did not have the jurisdiction. In this regard, it may be stated that as held in a catena of cases, interference by the High Court at the stage of show-cause notice would be premature, unless the notice is shown to have been issued palpably without any authority of law, which does not appear to be so in the present cases. It is no more res integra that ordinarily a writ petition should not be entertained against a mere show-cause notice stage as such stage does not rise to cause of action and it is also possible that the proceedings might be dropped by the authority after considering the reply to such notices. We also agree with the finding of learned Single Page 38/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT Judge that it is true that if the impugned notices are shown to have been issued without jurisdiction, writ petitions challenging the same would be maintainable, as per the various decisions relied upon by learned Sr. Advocate Mr.S. N. Shelat, however, in the instant cases, the notices issued by the concerned authority under Section 79A of the Code against the persons allegedly in unauthorized occupation, as set out herein above, could not be said to be palpably without jurisdiction or authority. Hence, learned Single Judge has not erred in declaring such petitions against the show-cause notices to be premature, not required to be entertained at this stage.
25. Learned Single Judge, after discussing each and every aspect of the matter has recorded the following findings in the impugned judgment:
"29. .........So far as the first set of petitions are concerned, the petitioner Shri Arvind Surti has sought various directions and declarations in respect of the lands in question. He has prayed inter alia that the State be directed to initiate the action under Section 79A of the Code to summarily evict the respondent No.14 or whoever of the respondents is in possession or occupation of the lands in question, and to direct the State to withdraw the exemption granted to the lands in question exercising its powers under Section 88D of the Tenancy Act. The petitioner has also prayed to return the lands in question to him, declaring the sale deeds executed in favour of the respondents as null and void. The said three petitions have been filed by the petitioner alleging that he was Page 39/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT the son and legal representative of the original owner Shri Babubhai Ranchhodbhai. The other heirs and legal representatives of the said Babubhai had orally renounced, surrendered and relinquished their rights to obtain the subject lands. According to him, by virtue of the said oral releases, the petitioner alone possessed all right, title or interest that his father Shri Babubhai Ranchhodbhai had in respect of the said lands. The memorandum of oral releases executed on 3.5.2011 by the four person; Atulbhai Babubhai, Bipinbhai Babubhai, Kokila Bijendra and Mrs. Vandana Kiritbhai has been produced at Annexure-A. According to Mr.Mihir Thakore, learned Sr. Advocate appearing for the said petitioner, by virtue of the said memorandum of oral releases, the petitioner alone had become entitled to file the petition and seek the reliefs in respect of the lands in question. At this juncture, it is required to be noted that initially the said petitioner had filed the petitions through his power-of-attorney- holder Prachi Shah and on the query raised by the Court as regards the maintainability of the petitions at the instance of the power-of-attorney-holder, the petitioner himself had appeared and filed the affidavit for treating the same as having been filed by himself.
30. The said petitions have been resisted by the respondents on various grounds including on the ground of maintainability and the locus standi of the petitioner. However, the Court is not inclined to entertain the petitions as the respondent Bhoodan Samiti has already instituted the Civil Suit being No.294/2009 in respect of the subject Bhoodan lands and the same is pending before the competent Court for Page 40/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT adjudication, apart from the fact that the petitions involve many disputed questions of facts. The said petitions, therefore, deserve to be dismissed without expressing any opinion on the merits.
31. So far as second set of petitions is concerned, the concerned petitioners who appear to be the subsequent purchasers of lands originally donated in Bhoodan Yagna, have challenged the show-cause notices issued by the respondent authorities under Section 79A of the Code and have prayed to set aside the same. As held hereinabove, such petitions being premature, cannot be entertained at this stage, and deserve to be dismissed accordingly."
As stated earlier, so far as third set of petitions is concerned, Letters Patent Appeals are not before us.
26. In conclusion, while dismissing all writ petitions, learned Single Judge has made certain observations and issued certain directions to the State which we deem it proper to reproduce hereunder:
"35. Before parting, it may be stated that the mismanagement and lethargy on the part of the Bhoodan Samiti and the apathy and inaction on the part of the Government in not taking action at the appropriate time against the allottees/donees of the Bhoodan lands, has created a chaotic condition frustrating the very avowed purpose, object and mission of the Bhoodan movement. Though Gujarat was one of the States where large number of lands admeasuring thousands of acres were donated, unfortunately the then Government of Bombay and subsequently the Government of Gujarat has not enacted Page 41/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT any law to facilitate, regulate, distribute and monitor such lands donated in the Bhoodan Yagna as also to monitor the functioning of the Bhoodan Samitis. There being complete vacuum of legal regime to deal with this peculiar situation, the Court deems it proper to issue following directions, till the time legislature enacts proper legislation to cover the field of Bhoodan lands. The magnanimous sacrifices of lands made by the original land owners in the Bhoodan Yagna, appear to have gone in vain, without effective and proper use, as large chunk of lands have still remained undistributed and unaccounted because of the mismanagement of the Bhoodan Samitis and because of apathy and indifference of the Government.
36. In that view of the matter it is directed that:-
(i) The Chief Secretary, Government of Gujarat shall constitute a State-level Committee comprising of the Principal Secretary (Revenue Department), the Principal Secretary (Urban Development and Urban Housing Department), the Secretary (Legal Department) and the Secretary or representative of Gujarat Bhoodan Samiti (Gujarat Sarvodaya Mandal). The Chief Secretary shall also constitute the committees at the District-
level, comprising the concerned Collector, the Chief Town Planner, and the Member Secretary, District Legal Services Authority of the concerned District. The Chief Secretary shall be at liberty to modify the composition of the Committees as may be found necessary, however, shall constitute the Committees within two weeks from the date of receipt of this order.
(ii) The Committees at District-level shall prepare a data- base from the Government records, from the records of the Bhoodan Samitis and also from other sources, of the Bhoodan Page 42/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT lands donated in the Bhoodan Movement, with the details of the names of original owners, dates of donations, the names of the Bhoodan Samitis, the names of the allottees/donees and the existing status of such lands. Each of the District-level Committee shall submit the report in that regard to the State- level Committee within three months from the date of constitution of the Committee. The Gujarat Bhoodan Samiti and the Gujarat Sarvoday Mandal are also directed to give full cooperation and support to the District-level Committees in the matter of furnishing information and parting with the documents pertaining to the Bhoodan lands.
(iii) On the receipt of the reports from the District-level Committees, the State-level Committee shall make suitable recommendations to the Government with regard to the monitoring and distributing the undistributed and unaccounted lands donated in the Bhoodan Yagna, and with regard to the Bhoodan lands resumed from the unauthorized occupants. The Committees while making recommendations shall bear in mind the very object of the Bhoodan Movement, so that the lands, which were donated in the Bhoodan Movement are in fact allotted to the landless persons for carrying on agricultural operations wherever possible, otherwise for using such lands for the public purpose.
37. On receiving such recommendations from the State- level Committee, it is expected that the Government shall take appropriate policy decision or enact the law in this regard as expeditiously as possible.
38. It is clarified that the afore-stated directions shall not come in the way of any Court or the authority in proceeding Page 43/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT further with the pending suits or the proceedings, in accordance with law."
27. A plea has been raised by Mr.Mihir Thakore, learned Senior Advocate that if the transfer is held to be invalid or irregular or contrary to provisions of the Code, the original owners of the lands are entitled to the resumption of their lands donated to the Bhoodan Samitis in the Bhoodan Yagna. Mr.Mihir Thakore, learned Senior Advocate has submitted that even as per Section 123 of the Transfer of Property Act, gift of an immovable property must be effected by a registered instrument signed by or on behalf of the donor and be attested at least by two witnesses, and in the instant cases, the Bhoodan Lekh having not been registered, there was no gift or transfer of property made in favour of the Bhoodan Samiti or the done and therefore, the lands in question shall vest in the original donor.
It is true that the Bhoodan Lekh cannot be said to be a document and at the most, it would be an agreement. However, the issue which may fall for consideration would be whether such documents were signed by the donor, by the authorized person of the Bhoodan Samiti and by the two witnesses whereby the subject land was transferred to the landless person, subject to the conditions mentioned therein. The next question would be whether, the relevant entries were made in the revenue record in that regard. Further, question whether the original owner or donor objected to the execution of such document or challenged the revenue Page 44/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT entries at any point of time on the ground that such transfer was not valid for want of registration, etc. would also arise. It would be evident to note at this stage that though it has been submitted on behalf of the State that such documents pertaining to the Bhoodan Yagna were exempted from the requirement of registration, any notification or amendment in the Transfer of Property Act in this regard could not be produced on record. In the circumstances, we are of the considered opinion that such issues are triable issues which cannot be decided by this Court and the only competent Court to decide them would be Civil Court.
A contention has also been raised by Mr.S.N.Shelat, learned Senior Advocate that since both the sides had addressed the matter on merit, the learned Single Judge was not right after recording prima facie findings, to direct the appellants to approach the Prant Officer. A somewhat similar submission has also been advanced by Mr.Mihir Thakore, learned Senior Advocate without prejudice to the submission that the petitioner ought not to have been relegated to a civil suit, that if at all the petitions were to be rejected on the ground of alternative remedy, the Hon'ble Court ought not to have made any observations on the merits of the petitioners' case. An alternative submission has also been advanced on behalf of the appellants in the first set of appeals that because the appellant is not a party in the pending suit and since various issues pertaining to violation of conditions Page 45/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT annexed to Bhoodan lands are being adjudicated by this Hon'ble Court, the appellants ought not to be relegated to a suit.
In this regard, reference may fruitfully be made to a decision in the case of Tin Plate Co. of India Ltd vs. State of Bihar And Ors., reported in 1998 Supp(2) SCR 547, relied upon on behalf of the appellants in the first set of appeals, wherein it is observed as under:
".......If the writ petition under Article 226 is to be dismissed on the ground of alternative remedy, the High Court is not required to express any opinion on merits of the case which is to be pursued before an alternative forum. It is true that in the present case the appellant's counsel in his effort to get over the objection of existence of an alternative remedy, addressed the Court on merits of the case and thereby invited the observations on merits of the case by the High Court. But in such a situation if the High Court is to dismiss the writ petition on the ground of alternative remedy, it would be a sound exercise of jurisdiction to refrain itself from expressing any opinion on the merits of the case which ultimately is to be taken up by a person before an alternative forum.
In the present case, in view of the observations made by the High Court, the Appellate Authority has rejected the appellant's appeal at the threshold and the appellant has been left without any Page 46/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT remedy under the law. In such circumstances, we are of the view that the observations made by the High Court in its judgment on merits of the case was totally un-called for and deserves to be set aside. Consequently, we set aside the observations made by the High Court in the judgment under appeal to the extent they relate to the merit of the case which was the subject matter of appeal before the Sales Tax Appellate Authority."
It is no doubt true that the learned Single Judge has dismissed the writ petitions, but at the same time, it is also true that the learned Single Judge has dismissed the first set of petitions "without expressing any opinion on the merits". Learned Single Judge in Paragraph 38 has also observed that the "aforestated directions shall not come in the way of any Court or the authority in proceeding further with the pending suits or the proceedings, in accordance with law". Insofar as second set of petitions assailing the show cause notices is concerned, the learned Single Judge has observed in Paragraph-31 that "such petitions being premature, cannot be entertained at this stage, and deserve to be dismissed accordingly". In view of categorical observations made by learned Single Judge, as above, it cannot be argued on behalf of the appellants that on one hand the writ petitioners are relegated to civil suit on the ground of alternative remedy, and on the other, observations are made on merits. Page 47/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT Learned Single Judge has made certain observations, more particularly in the first set of petitions, only in order to substantiate that whenever the occupant of an agricultural land uses such land for the purposes other than the agricultural, without the permission of the Collector as contemplated in Section 65, and/or commits breach of terms and conditions lawfully annexed to his tenure, as contemplated in Section 68, he would not be entitled or he would be ceased to be entitled to the use and occupation of such land, and liable to be evicted summarily under Section 79A of the Code and as a necessary corollary, any person using and occupying such land may be the subsequent purchasers, in violation of the said provisions, would be also unauthorized occupant or in wrongful possession, liable to be evicted summarily under Section 79A of the Code. The learned Single Judge has in fact not precluded the appellants from filing or defending a suit before the competent Civil Court for determination of issue, namely since the donor had given the Bhoodan land by an unregistered document, there was no gift of the land by the donor to anyone and therefore, the donor never got divested of the title to the land and after him, his heirs continued to the owners of the land or that assuming that there was a gift of the land, the same would stand revoked under Section 126 of the Transfer of Property Act and would therefore come back to the donor. Such issue, apart from those referred above, can only be examined and determined by a competent Civil Court after recording evidence of parties Page 48/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019 C/LPA/66/2017 CAV JUDGMENT concerned. Though no finding has been recorded by learned Single Judge in this regard on merit, it is clarified by way of caution that the competent Civil Court shall have to decide the issues that may be raised by the parties without being influenced by any observation made in the impugned judgment and order rendered by learned Single Judge in this regard. In that view of the matter, we do not find any substance in the alternative submission advanced on behalf of the appellants in the first set of appeals that because the appellant is not a party in the pending suit and since various issues pertaining to violation of conditions annexed to Bhoodan lands are being adjudicated by this Hon'ble Court, the appellant ought not to be relegated to a suit.
28. For the reasons stated hereinabove over and above the reasons recorded by learned Single Judge, we do not deem it proper to interfere in these appeals. With the observations, as above, the Letters Patent Appeals are therefore dismissed. The status-quo order, granted earlier in the respective appeals, stands vacated.
29. As regards Misc. Civil Application No.1/2019 in Letters Patent Appeal No.42/2018, same is for review of our order dated 29.11.2018, rendered in Letters Patent Appeal No.42/2018. Said Misc. Civil Application was ordered to be heard with present appeals. Therefore, in view of the above discussion, we do not find any ground to review our order. The Misc. Civil Application is dismissed.
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30. In view of dismissal of Letters Patent Appeals, the Civil Applications for Stay, Civil Applications for Interim Relief as well as Civil Applications for Joining Party filed in the respective Letters Patent Appeals also stand disposed of accordingly.
sd/-
(ANANT S. DAVE, ACJ) sd/-
(BIREN VAISHNAV, J) After pronouncement of Judgment, a request is made by Mr.S.N.Shelat, learned Senior Advocate appearing on behalf of the appellants to stay operation of judgment for some time.
The operation of judgment shall remain stayed for a period of eight weeks.
sd/-
(ANANT S. DAVE, ACJ) sd/-
(BIREN VAISHNAV, J) (sunil....) Page 50/50 Downloaded on : Sat Sep 07 23:09:26 IST 2019