Gujarat High Court
Arvind Surti - Through Power Of Attorney ... vs State Of Gujarat - Through Secretary & 14 on 29 December, 2016
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/6157/2011 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 6157 of 2011
With
SPECIAL CIVIL APPLICATION NO. 6158 of 2011
With
SPECIAL CIVIL APPLICATION NO. 6159 of 2011
With
SPECIAL CIVIL APPLICATION NO. 17975 of 2011
With
SPECIAL CIVIL APPLICATION NO. 10319 of 2013
With
SPECIAL CIVIL APPLICATION NO. 10322 of 2013
With
SPECIAL CIVIL APPLICATION NO. 1633 of 2012
With
SPECIAL CIVIL APPLICATION NO. 1639 of 2012
With
SPECIAL CIVIL APPLICATION NO. 1640 of 2012
With
SPECIAL CIVIL APPLICATION NO. 1641 of 2012
With
SPECIAL CIVIL APPLICATION NO. 1643 of 2012
With
SPECIAL CIVIL APPLICATION NO. 1644 of 2012
With
SPECIAL CIVIL APPLICATION NO. 1645 of 2012
With
SPECIAL CIVIL APPLICATION NO. 1646 of 2012
With
SPECIAL CIVIL APPLICATION NO. 2193 of 2012
With
SPECIAL CIVIL APPLICATION NO. 2199 of 2012
With
SPECIAL CIVIL APPLICATION NO. 2200 of 2012
With
SPECIAL CIVIL APPLICATION NO. 6452 of 2012
With
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SPECIAL CIVIL APPLICATION NO. 6335 of 2012
With
SPECIAL CIVIL APPLICATION NO. 6336 of 2012
With
SPECIAL CIVIL APPLICATION NO. 6152 of 2012
With
SPECIAL CIVIL APPLICATION NO. 7050 of 2012
With
SPECIAL CIVIL APPLICATION NO. 6146 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/-
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ? YES
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of
the judgment ? YES
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of YES
India or any order made thereunder ?
==========================================================
ARVIND SURTI - THROUGH POWER OF ATTORNEY - PRACHI
SHAH....Petitioner(s)
Versus
STATE OF GUJARAT - THROUGH SECRETARY & 14....Respondent(s)
==========================================================
Appearance:
MR SN SHELAT, LD. SR. ADVOCATE |
with MS DHARA M. SHAH, ADVOCATE |
MR MIHIR THAKOR, SR. ADVOCATE |
with MR SALIL M THAKORE, ADVOCATE | FOR THE PETITIONERS
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MRS VD NANAVATI, ADVOCATE |
MR SUNIL S. JOSHI, ADVOCATE |
MR HITESH S. PADHYA, ADVOCATE |
MR PK JANI, LD. ADDL. ADVOCATE GENERAL
with MR VENUGOPAL PATEL, AGP for the Respondent(s) No. 1
(in SCA No.17975/2011)
MS MANISHA LAVKUMAR, LD GOVERNMENT PLEADER
with MS JYOTI BHATT, LD. AGP for the Respondent No.1
(in SCA Nos.6157/2011, 6158/2011 and 6159/2011)
MS MANISHA LAVKUMAR, LD GOVERNMENT PLEADER
with MS JYOTI BHATT, LD. AGP for the Respondent No.1
(in SCA Nos.10319/2013, 10322/2013, 1633/2012, 1639/2012, 1640/2012,
1641/2012, 1643/2012, 1644/2012, 1645/2012, 1646/2012, 2193/2012,
2199/2012, 2200/2012)
MS MANISHA LAVKUMAR, LD GOVERNMENT PLEADER
with MR VENUGOPAL PATEL, LD. AGP for the Respondent No.1
(in SCA Nos.6452/2012, 6355/2012, 1635/2012, 1646/2012, 2193/2012,
2199/2012, 6452/2012, 6335/2012, 6152/2012, 7050/2012, 6336/2012,
6146/2012)
MR CR MISHRA, ADVOCATE for Respondent No.1
MR DJ BHATT, ADVOCATE for the Respondent(s) No. 14
MR NARENDRA S DIXIT, ADVOCATE for the Respondent(s) No. 14
MS ROMA I FIDELIS, ADVOCATE for the Respondent(s) No. 3 - 12
MR GM JOSHI, ADVOCATE for the Respondent
MR AJ PATEL, ADVOCATE for the Respondent
==========================================================
CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 29/12/2016
CAV JUDGMENT
1. Should the avowed and laudable object of the Page 3 of 82 HC-NIC Page 3 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT Bhoodan Movement spearheaded by Acharya Shri Vinoba Bhave be allowed to be frustrated, and the Sacrifices of lands made by the land owners in the Bhoodan Yagna for the benefit of landless persons be allowed to go in vain, on account of the lethargy and mismanagement of Bhoodan Committees, and the apathy and inaction of the State Government ? And should such landless persons, who were allotted the lands received in Bhoodan Yagna be permitted to use such lands for profiteering purpose, are some of the issues involved in the instant batch of petitions. Before dealing with the factual and legal aspects of the matters, it would be worthwhile to quote from the book, "Vinoba and His Mission", by Shri Suresh Ram, published with an introduction by shri Jaiprakash Narayan and a forward by Dr. Radhakrishnan. The Scheme of Bhoodan Movement of Shri Vinoba Bhave has been quoted therein 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 Page 4 of 82 HC-NIC Page 4 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT 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."
2. All these petitions were heard together with the consent of the learned Counsels for the parties and are being disposed of by this common order, as the subject lands are the lands, which were originally donated by the owners to the Bhoodan Samitis in the Bhoodan Yagna, for being allotted to the landless persons subject to certain conditions.
3. The facts of each group of petitions may be summarized as under:-
I Group-I: Special Civil Application Nos.6157 of 2011, 6158 of 2011 and 6159 of 2011:-
Petition No. Name of the Survey Area in Name of the Date of Impugned petitioner No. of the Are/Sq. allottee/donee allotment orders land Mtrs.
Page 5 of 82 HC-NIC Page 5 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT SCA Nos. Arvind Surti 15/1, 14 Ares 94 Takhuji Vajalji 17.5.1961 2.7.2010 (of 6157/2011, sq. mtrs. Mamlatdar) 6158/2011 and 6159/2011 147/5/A 36 Ares 42 and sq. mtrs., 60 Ares 70 21.2.2009 152/2 sq. mtrs. 3.1 These three petitions have been filed by the petitioner Arvind Surti. The afore-stated subject lands originally belonged to Shri
Babubhai Ranchoddbhai, father of the petitioner Arvind Surti. During the period 1951-52, the Bhoodan Movement was started by Archarya Shri Vinoba Bhave in which the rich land owners were persuaded to give some of their lands to the landless persons for their personal cultivation, through the Bhoodan Samitis, constituted across India under the supervision of Aracharya Shri Vinoba Bhave. One of such Bhoodan Samitis was the respondent No.2 Gujarat Bhoodan Samiti, part of Gujarat Sarvodaya Mandal. The said respondent No.2 Samiti having approached the petitioner's father Babubhai Ranchoddbhai in the year 1961, he agreed to give the said lands to the said Samiti under the said Bhoodan Yagna. Accordingly, the Page 6 of 82 HC-NIC Page 6 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT said lands were given by the said Babubhai on 17.5.1961 by executing Bhoodan Lekh, through the intervention of the said Samiti, to one Takhuji Vajalji, subject to the conditions inter alia that the said lands would be used for his personal cultivation and would not be parted with or encumbered. The Revenue Entry No.1112 (Annexure-F) was also mutated in that regard. 3.2 The said Takhuji Vajalji died on 19.6.2000 and the names of Late Shri Natwarsinh Takhtsinh and the respondent Nos.3 to 5 were entered into the Revenue Records as per the Revenue Entry No.2522 (Annexure-G). On the death of Natwarsinh Takhtsinh on 2.7.2009, the names of the respondent Nos.6 to 12 were entered into the Revenue Record as per the Revenue Entry No.3340 (Annexure-H). Thereafter the land bearing Survey No.15/1 was sold out by the respondent Nos.3 to 12 to the respondent No.14 by executing the sale deed bearing Registration No.4589 on 10.10.2008, in respect of which the Revenue Entry No.3446 was made (Annexure-J). However, some Social Welfare Organization namely Citizen Welfare Group having Page 7 of 82 HC-NIC Page 7 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT initiated the proceedings before the Mamlatdar, Gandhinagar raising objection against the sale of the said land being Bhoodan land, the Mamlatdar had cancelled the said Entry No.3446 as per the order dated 2.7.2010 (Annexure-K). 3.3 The Survey No.152/2 was sold out by Naatwarsinh Takhtsinh and the respondent Nos.3 to 5 to one Kanubhai Prahladbhai and three others as per the sale deed dated 25.1.2007, in respect of which the Revenue Entry No.3090 was made (Annexure-M). The respondent No.2 Gujarat Bhoodan Samiti having initiated the proceedings in the Court of Prant Adhikari, Gandhinagar raising objection against the said sale, the Prant Adhikari had cancelled the said Entry No.3090 as per the order dated 21.2.2009 (Annexure-N). Another sale deed in respect of the said Survey No.152/2 was executed by the said Kanubhai Prahladbhai and others on 7.2.2008 in favour of one Sonaben Chaganbhai Prajapati in respect of which the Revenue Entry No.3254 and No.3302 were made. The said entries were also subsequently cancelled by the Mamlatdar by the Page 8 of 82 HC-NIC Page 8 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT orders dated 25.6.2008 and 19.9.2008 respectively.
3.4 So far as the land bearing Survey No.147/5/A is concerned, the sale deed dated 25.3.2004 was executed by Natwarsinh Takhtsinh and others in favour of one Jitendra Dwarkadas Patel in respect of which Revenue Entry No.2801 (Annexure-S) was made. It appears that in respect of the same land, another sale deed dated 25.1.2007 was also executed by Natwarsinh Takhtsinh and the respondent Nos.3 to 5 in favour of Kanubhai Prahladbhai Patel and three others, in respect of which the Revenue Entry No.3091 was made (Annexure-U). Another sale deed dated 7.2.2008 in respect of the said Survey No.147/5/A was also executed by the said Kanubhai and others in favour of Sonaben Chaganbhai Prajapati in respect of which Revenue Entry No.3254 and No.3303 were made. The said entries were also subsequently cancelled by the Mamlatdar vide the orders dated 25.6.2008 and 18.9.2008. The said Sonaben Chaganbhai Prajapati also executed agreements to sell the said land bearing Survey No.147/5/A in Page 9 of 82 HC-NIC Page 9 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT favour of one Gaurinandan Property Holders Pvt.
Ltd., and also in favour of Shree Ganga Property Holders Pvt. Ltd., on 22.9.2009.
3.5 According to the petitioners, the sale made by the heirs of Takhuji Vajalji and all the subsequent sales in respect of the lands in question were in violation of the express conditions of the Bhoodan Lekh and therefore, the respondent No.2 Gujarat Bhoodan Samiti was required to take necessary action. However, as per the Newspaper Reports, the respondent No.2 Gujarat Bhoodan Samiti, was also involved in the frauds. In any case, the State was duty-bound to take necessary action under the provisions contained in the Gujarat Land Revenue Code (hereinafter referred to as "the Code"), there being breach of the express conditions annexed to the tenure or holding of the Bhoodan land under the grant recognized under the Bombay Tenancy and Agricultural Lands Act (hereinafter referred to as "the Tenancy Act"). The petitions therefore have been filed by the petitioner seeking directions against the Collector, Gandhinagar to Page 10 of 82 HC-NIC Page 10 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT take steps under Section 79A of the Code to summarily evict the respondent No.14 or whoever was in occupation or possession of the lands in question, and to hand over possession thereof to the petitioner. The petitioner has also sought directions against the respondent No.1 to exercise its powers under Section 88D of the Tenancy Act and to withdraw the exemption granted to the lands in question under Section 88A of the Tenancy Act. The petitioner has also sought declaration that the sales/transfers of the lands in question are contrary to law, void, having no effect and that the petitioner has the complete and lawful right, title and interest in the lands in question.
II Group - II: Special Civil Application Nos.17975/2011, 1633/2012, 6335/2012, 6336/2012, 6152/2012, 7050/2012, 6146/2012, 1639/2012, 1640/2012, 1641/2012, 1643/2012 to 1646/2012, 2199/2012, 2200/2012 and 6452/2012:-
4. In this group of petitions the petitioners have challenged the notices issued by the respondent authorities under Section 79A of the Page 11 of 82 HC-NIC Page 11 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT 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. The facts of each petition may be summarized as under:-
Petition No. Name of the Survey Area in Name of the Date of Impugned petitioner No. of Are/Sq. allottee/donee allotment orders/Notices the land Mtrs.
SCA Nos. Sudhir Indravadan 406 2 Acres 4 sq. Thakor Maganji 26.6.1957 29.11.2010 and 17975/2011 Nanavati mtrs. Gagaji 11.7.2011 SCA No. Sudhir Indravadan 396/p/1 2 Acres 4 sq. Malek Galubmiya 26.6.1957 25.2.2011 1633/2012 Nanavati mtrs. Nathumiya SCA No. Veljibhai 387/p/1 6274 sq. Thakor Lalaji 26.6.1957 11.7.2011 6335/2012 Premchandbhai mtrs. Maganji Dodia 7186 sq. Thakor Raijiji mtrs. Babaji SCA No. Chandrakantbhai 386/2 14164 sq. Bava Sompuri 26.6.1957 11.7.2011 6336/2012 Premchandbhai mtrs. Madhupuri Shah & Ors.
SCA No. Manjulaben 408 7487 sq. Senma Motibhai 26.6.1957 25.11.2010 6152/2012 Premchandbhai mtrs. Varubhai Shah SCA No. Pankajbhai K. 400 14063 Kachrabhai 26.6.1957 25.11.2010 7050/2012 Patel through sq.mtrs. Haribhai Senma POA Harshaben Koshorebhai Vyas SCA No. Hemlataben 408 13253 sq. Atma Kodarbhai 26.6.1957 11.7.2011 6146/2012 Premchandbhai mtrs. Khodabhai Shah SCA No. Munishbhai 393 8903 Chaturbhai 26.6.1957 29.11.2010 and 1639/2012 Rashmibhai Patel sq.mtrs. Lakhabhai Raval 11.7.2011 SCA No. Abhishek 403 5261 Senma Kachrabhai 26.6.1957 28.2.2011 1640/2012 Jayendrabhai Shah sq.mtrs. Haribhai SCA No. Gautambhai 386/3 15176 Mustusa Alisa 26.6.1957 29.11.2010 and 1641/2012 Himmatlal sq.mtrs. Fakir 11.7.2011 Chokshi SCA No. Abhishek 406 14265 Thakor Chhaganji 30.9.1965 11.7.2011 1643/2012 Jayendrabhai Shah sq.mtrs. Gagaji Page 12 of 82 HC-NIC Page 12 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT SCA No. Nupul Bansibhai 406 8440 Thakor Babaji 26.6.1957 11.7.2011 1644/2012 Patel sq.mtrs. Vasaji SCA No. Dr.Prabodhbhai 396/p/1 9197 Malek Galubmiya 26.6.1957 25.2.2011 1645/2012 Mukundrai Desai sq.mtrs. Nathumiya SCA No. Harishbhai 399/1 12950 Mansangji Mathurji 26.6.1957 29.11.2010 and 1646/2012 Kantilal Patel paiki 3 sq.mtrs. Thakore 11.7.2011 SCA No. Anand Navinbhai 399/1 16693 Raval Varsangbhai 26.6.1957 25.11.2010 and 2199/2012 Jhaveri paiki 2 sq.mtrs. Varva 11.7.2011 SCA No. Sajni Rajanbhai 387 6275 Motibhai 26.6.1957 29.11.2010 and 2200/2012 Shah sq.mtrs. Sardarbhai Malek 11.7.2011 7186 Sakabhai Kalabhai sq.mtrs. Rabari 6160 sq. Malek Chandbhai mtrs. Poojabhai SCA No. Chandrakantbhai 408 15400 Senma Melabhai 26.6.1957 11.7.2011 6452/2012 Premchandbhai sq.mtrs. Khodabhai Shah III Group- III: Special Civil Application No.2193 of 2012, No.10319 of 2013 and No.10322 of 2013:-
5. In this set of petitions, the petitioners are the persons who had allegedly purchased 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. The respondent authorities having taken actions against them under the provisions of the Code, they have challenged the orders passed by the respondent authorities. The petitioner of SCA No.2193 of 2012 has also challenged the legality and validity of the Circular dated 6.1.2004 Page 13 of 82 HC-NIC Page 13 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT issued by the Revenue Department, State of Gujarat. The facts of the said three petitions may be summarized as under:-
Petition No. Name of the Survey Area in Name of the Date of Impugned petitioner No. of Are/Sq. allottee/donee allotment orders/Notices the Mtrs.
land
SCA Nos. Gordhanbhai 858 1 Hectare Nandaben 6.10.1958 17.1.2012( of City
2193/2012 Haribhai Patel 17 Ares 36 Mamlatdar),
sq. mtrs. 24.6.2010(of
District Collector,
Ahmedabad), and
23.1.2009 (of Dy.
Collector,
Ahmedabad)
SCA Nos. Maheshbhai 42/2 1 Acre 26 Mohmed Ladjibhai 16.5.1958 6.9.2012 (of the
10319/2013 Jadavjibhai sq. mtrs. State Government)
Patel
SCA Nos. Chandrakant 156 2 Acre 5 Alam Raja Haji 16.5.1958 6.9.2012 (of the
10322/2013 Prabubhai sq. mtrs. State Government)
Suthar
5.1 SCA No.2193 of 2012 has been filed by the petitioner Gordhanbhai Haribhai Patel in respect of the land bearing Survey No.858 admeasuring 1 Hectare 17 Are 36 sq. mtrs., which originally belonged to one Balakrishna Harivallabhdas. The said original owner had donated the said land to the Bhoodan Samiti who allotted the same to one Nandaben, predecessor-in-title of respondent No.2, by executing the Bhoomidan Lekh on 6.10.1958, subject to the terms and conditions mentioned therein. The said Nandaben transferred the said land in favour of the respondent No.3 of Page 14 of 82 HC-NIC Page 14 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT which the respondent Nos.4, 5, and 6 claim to be the promoters, by executing an agreement to sell.
The said respondents thereafter sub-divided the said land into plots and allotted the same to various persons, including the petitioner by executing an agreement to sell. The petitioner had purchased the Plot No.33 admeasuring 155 sq. mtrs., along with the super-structure thereon by the agreement executed in July 1994 from one Gordhanbhai Haribhai Patel, who had purchased the same from one Hansavatiben Sikarawa. The said Hansavatiben had purchased the same from the respondent Nos.3 to 6.
5.2 It appears that the City Deputy Collector, Ahmedabad had initiated the action against the legal heirs of the said Nandaben and others under Section 79A of the Code and had passed the order dated 27.1.2009 in Sharatbhang Case No.13/2006 filed at the instance of Gujarat Bhoodan Samiti, directing to evict summarily the occupants of the subject land, and further directing to forfeit the said land in favour of the Government. The appeal filed by the aggrieved Page 15 of 82 HC-NIC Page 15 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT persons before the District Collector was dismissed vide the order dated 24.6.2010 (Annexure-H). Pursuant to the said orders passed by the Deputy Collector and the Collector, the respondent No.9 City Mamlatdar issued notices under Section 61 of the Code and thereafter passed the order against the occupants of the said land, including the petitioner Gordhanbhai on 17.1.2012 directing them to remove the encroachment and pay the penalty. The City Mamlatdar also directed to take necessary action under Section 202 of the Code against the said encroachers. Being aggrieved by the said order, the petitioner has filed the present petition challenging the orders passed by the City Deputy Collector and the Collector, as also the City Mamlatdar, and has also challenged the legality and validity of the Circular dated 6.1.2004 issued by the Revenue Department.
5.3 So far as SCA No.10319 of 2013 is concerned, the same has been filed by the petitioner Maheshbhai Jadavjibhai Patel, alleging inter alia that the agricultural land bearing Survey No.42/2 Page 16 of 82 HC-NIC Page 16 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT admeasuring about 1 Acre 26 gunthas situated at Village Nana Ankelvaliya, Taluka Lakhatar, District Surendranagar was allotted by way of Sathani land to one Mohmed Ladjibhai - respondent no.5, through Bhoodan Committee for his personal cultivation as per the order dated 16.5.1958 passed by the Mamlatdar, Lakhatar. The Revenue Entry being No.156 was made on 12.11.1958 in Village Form No.6 in that regard. According to the petitioner, the father of the petitioner had purchased the said land from respondent No.5 by way of Registered sale deed dated 2.5.1985 (Annexure-B) in respect of which revenue entry No.1990 was made. It appears that thereafter the respondent No.3 Deputy Collector initiated the proceedings against the petitioner for breach of the conditions mentioned in the order of the Mamlatdar dated 16.5.1958 and passed the order on 30.3.2005 directing that the land be forfeited in the Government. Being aggrieved by the said order, the petitioner had filed the appeal being No.101/2004-05 before the respondent No.3 Collector, who vide the order dated 6.9.2005 dismissed the said appeal. The petitioner, Page 17 of 82 HC-NIC Page 17 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT therefore, preferred the Revision Application being 99/05 before the respondent No.1 under Section 211 of the Code, who vide the order dated 7.9.2012 dismissed the said revision application. The petitioner, therefore, has filed the present petition.
5.4 SCA No.10322 of 2013 has been filed by the petitioner Chandrakantbhai Prabhubhai Suthar alleging inter alia that the land bearing Survey No.136 admeasuring 2 Acre 5 gunthas situated at Nana Ankelvaliya, Taluka Lakhatar, District Surendranagar was allotted to one Alam Raja Haji through Bhoodan Samiti as sathani land as per the order dated 6.5.1958 passed by the Mamlatdar, Laktar, in respect of which the mutation entry No.157 was entered on 12.11.1958. The said land was thereafter transferred in the name of the respondent No.5 who happened to be the son of the said Alam Raja Haji. The respondent No.5 subsequently sold out the said land to the petitioner by executing registered sale deed on 30.5.1990 in respect of which Revenue Entry No.2010 was made on 12.4.1991. It appears that Page 18 of 82 HC-NIC Page 18 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT thereafter the respondent No.3 Deputy Collector initiated the proceedings against the petitioner for the violation of the condition mentioned in the order passed by the Mamlatdar dated 6.5.1958. The Deputy Collector thereafter passed the order dated 30.3.2005 directing to vest the land in Government. Being aggrieved by the said order, the petitioner had preferred an appeal before the respondent No.2 Collector, who vide the order dated 13.9.2005 dismissed the said appeal and confirmed the order passed by the Deputy Collector. The petitioner, therefore, had preferred revision application before the respondent No.1 under Section 211 of the Code, however, the same also came to be dismissed vide the order dated 7.9.2012 (Annexure-A). The petitioner, therefore, has filed the present petition.
SUMISSIONS MADE BY THE LEARNED ADVOCATES FOR THE PARTIES:-
6. Submissions in the First Set of Petitions:-
6.1 The petitioner Shri Arvind Surti in these Page 19 of 82 HC-NIC Page 19 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT petitions is one of the sons of the original owner Babubhai Ranchoddbhai of the lands in question Who had executed Bhoodan Lekh in favour of the landless person, through the Bhoodan Samiti. It is submitted by the learned Sr. Counsel Mr.Mihir Thakore for the petitioner as under -
(i) The lands in question were given by the original owner Babubhai in the Bhoodan Yagna by executing Bhoodan Lekh, which was an unregistered document. As per Section 123 of the Transfer of Properties Act, the gift of immovable property must be effected by registered instrument signed by or on behalf of the donor and be attested at least by two witnesses. As there was no registered document, there was no gift in the eye of law and as a consequence thereof no transfer of title had taken place in favour of the donee or allottee of the land in question.
(ii) The brothers and sisters of the petitioner, who were the legal heirs of the original owner Babubhai Surti had released their rights in the lands in question by way of oral releases, which were recorded in the form of memorandum. Such relinquishment or abandonment of interest can be Page 20 of 82 HC-NIC Page 20 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT effected without written instrument. Reliance is placed on the judgement of the Bombay High Court in case of Ramdas Chimna Vs. Pralhad Deorao & Ors., reported in AIR 1965 Bombay 74.
(iii) Since the allottee Takhuji Vajalji had no title, he could not have passed better title than what he had, to the subsequent purchasers, who are the private respondents herein. Since there was clear recital in each sale deed that the land in question was given in Bhoodan, the subsequent purchasers had full knowledge about the said fact.
(iv) There is no provision of law whereunder the State would become owner of the land and in absence of such provision, the ownership of the land had continued with the original owner.
(v) The State has power to evict the persons, who are in unauthorized occupation of the lands in question under Section 88D of the Tenancy Act, as also under Section 79A read with Section 68 of the Bombay Land Revenue Code.
(vi) The very object of the Bhoodan Movement was Page 21 of 82 HC-NIC Page 21 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT frustrated as the original allottee Takhuji Vajalji, who was given land for his personal cultivation in the form of new tenure land had sold out the same in violation of the conditions of the Bhoodan Lekh, and therefore, the State Government was required to withdraw the exemption granted under Section 88A of the Tenancy Act, in exercise of the power conferred under Section 88D(1)(ii) of the said Act.
(vii) There being breach of conditions of tenure attached to the lands in question, and there being violation of Section 68 and Section 73 of the Code, the State Government ought to take action of summary eviction under Section 79A of the Code.
(viii) Even after the summary eviction of the unauthorized occupiers of the land, the land would not belong to the State and the possession thereof was required to be handed over to the original owners only.
(ix) There being no alternative efficacious remedy available to the petitioner, the petition Page 22 of 82 HC-NIC Page 22 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT under Article 226 of the Constitution was maintainable. Reliance is placed on the decision of Supreme Court in case of Shri Anadi Mukta Sadguru Shree Mukhtajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. Vs. Rudani and Ors., reported in AIR 1989 SC 1607 to submit that the writ of mandamus could be issued to any person or authority and for enforcement of fundamental rights and for any other purpose.
(x) The petitions having been filed as soon as the petitioner came to know about the sale of the land in question by the legal heirs of the original allottee Takhuji Vajalji, there was no delay on the part of the petitioner in filing the petitions.
(xi) The petitions filed by the petitioner through power-of-attorney holder was maintainable, even otherwise subsequently the petitioner himself has also affirmed the petitions.
6.2 It is submitted by the learned Additional Advocate General Mr.Prakash Jani and the learned Page 23 of 82 HC-NIC Page 23 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT Government Pleader Ms.Manisha Lavkumar as under:-
(i) The lands given by the land-owners to the Bhoodan Samiti recognized by the State Government, were the lands which 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) 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. In this regard reliance is placed on the Saurashtra Bhoodan Yagna Act, 1953 and on the decision of this Court in case of Mavjibhai Haribhai Patel Vs. State of Gujarat, reported in 2005 (4) GLR 3696.
(iii) There was no privity of contract between Page 24 of 82 HC-NIC Page 24 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT the donor and the donee and the gift was neither conditional, nor contingent upon the occurrence of any event.
(iv) 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) The overall control and supervision of the Bhoodan Movement and disbursement of the lands through the Bhoodan Samiti was with the State Government and therefore certain exemptions were granted to the Bhoodan lands from the applicability of various statues.
(vi) The 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) The 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 Page 25 of 82 HC-NIC Page 25 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT 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) 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.
(ix) 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 Page 26 of 82 HC-NIC Page 26 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT 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.
6.3 Submissions of the learned Advocate Mr.G.M. Joshi for the respondent No.2 Bhoodan Samiti:-
(i) Gujarat Bhoodan Samiti is a wing of Akhil Bharat Sarvodaya Mandal, also known as Sarva Seva Sang, a registered society at Wardha.
(ii) The Samiti is taking appropriate action by filing litigations in the Courts with the help of Revenue Authorities.
(iii) As per the report/proposal submitted by the Samiti to the Revenue Department on 6.5.2013, out of 103,530 acres of lands received in donation, 50984 acres was Page 27 of 82 HC-NIC Page 27 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT redistributed to about 10270 landless families by way of Bhoodan Lekhs, and about 52546 acres of land has remained undistributed.
6.4 Submissions made by Ms. Roma Fidelis for respondent Nos.3 to 12:-
(i) Late Shri Takhuji Vajalji, the predecessor-
in-title of the respondent Nos.3 to 12 was cultivating the lands prior to 1948 and was declared as protected tenant, and therefore, the said Babu Ranchoddbhai could not have given away the lands in question in Bhoodan as by that time the said Takhuji Vajalji had already become the owner by virtue of his tenancy rights under the Tenancy Act. However, the said Babubhai employing the trick donated the said land under the guise of Bhoodan Yagna. In the year 1987 the State Authorities had initiated proceedings under Section 84C of the Tenancy Act, however, the same were withdrawn.
(ii) Once the land having been given away by way of charity, the original owner cannot claim it back as a matter of right, claiming his Page 28 of 82 HC-NIC Page 28 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT ownership. In the Bhoodan movement started by Acharya Shri Vinoba Bhave, the original land owner had lost his right, title and interest, and therefore, the petitioner could not claim ownership over the said lands.
(iii) The Bhoodan Samiti had already filed the suit being Special Civil Suit No.294/2009 in respect of the suit lands, which is pending before the Civil Court, Gandhinagar, and therefore, the petitions were not maintainable.
(iv) The Draft Town Planning Scheme having been introduced to the lands in question the agricultural activities were not possible to be carried out.
(v) The land did not belong to the Government and the land having been given away as charity to the Bhoodan Samiti, the Government could not have taken any action in respect of such land. 6.5 Submissions made by Mr.D.J. Bhatt, learned Counsel for the respondent No.14:-
(i) There was no document produced by the Page 29 of 82 HC-NIC Page 29 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT petitioner to show that the lands in question were given by the original owner to the occupiers of the said lands. There was no Government machinery involved in the Bhoodan Scheme as it was voluntary non-government scheme.
(ii) The Bhoodan Committee was not recognized by the State Government, and therefore, the provisions of the Land Revenue Code had no application to such lands.
(iii) If the land was not given in Bhoodan, the provisions of Section 88A and Section 88D of the Tenancy Act did not apply.
(iv) The executive instructions, orders, circulars issued by the State Government could not be said to be "law", in view of the judgement of Supreme Court in case of State of Jharkhand and Ors. Vs. Jitendra Kumar Srivastava and Anr., reported in (2013) 12 SCC 210. Therefore, the petitions to enforce such instructions were not maintainable. The breach of such administrative instructions had no statutory force, and therefore also the petitions were not Page 30 of 82 HC-NIC Page 30 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT maintainable. Reliance is also placed on the decision in case of State of Haryana Vs. Mahender Singh and Ors., reported in (2007) 13 SCC 606 and in case of The State of Assam and Anr. Vs. Ajit Kumar Sarma and Ors., reported in AIR 1965 SC 1196.
(v) There were disputed questions of facts pertaining to breach of contract and therefore the proper remedy is filing civil suit and not writ, as held by Supreme Court in case of Kisan Sahkari Chini Mills Limited and Ors. Vs. Vardan Linkers and Ors., reported in (2008) 12 SCC 500.
(vi) When the lands were included in the residential zone under the Town Planning Scheme, it was not possible to cultivate the said lands.
6.6 Submissions made by Mr. A. J. Patel, learned Counsel appearing for the respondent No.18:-
(i) The petitions filed by the petitioners on the basis of the unregistered release deeds, were not maintainable as the said deeds required registration. Such release of rights in the property was created only for the purpose of Page 31 of 82 HC-NIC Page 31 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT filing petition by the petitioner, which document otherwise lacks authenticity.
(ii) The lands having been included in the residential zone under the TP Scheme, it was not possible to carry on any agricultural activities.
(iii) The Bhoodan Committee has already filed Special Civil Suit No.294/2009, which is pending for adjudication. The land in question was first sold out in the year 2008 in favour of Jitendra Dwarkadas, who subsequently sold out the same in the year 2009. Hence, the petitions filed in 2011 suffer from delay and laches.
7. Submissions in the second set of petitions:-
7.1 The learned Sr. Advocate Mr.S. N. Shelat for the petitioners submitted as under:-
(i) The Prant Officer, Gandhinagar was not competent to invoke the jurisdiction under Section 79A of the Gujarat Land Revenue Code.
Therefore, the impugned notices were issued without jurisdiction and without authority of law.
Page 32 of 82 HC-NIC Page 32 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT
(ii) Section 79A of the Code was not applicable to the Bhoodan lands as the Government was not the owner of the said lands. The Government had only facilitated to put the landless persons in possession of such lands, and since then such allottees had become the owners/occupiers of the said lands.
(iii) The Bhoodan Samiti was not a corporate
sole or legal entity. It was merely a
facilitator in the Bhoodan Movement. The lands
had not vested in Bhoodan Samiti.
(iv) There was no privity of contract, nor
privity of estate, nor any legal relationship
between the State Government, Bhoodan Samiti and the allottees of lands.
(v) The occupation of the subsequent purchasers could not be said to be unauthorised as there was no contravention of any specific provision of the Code, nor any powers under Sections 62, 67 and 68 of the Code could be exercised.
(vi) In view of the legal position settled by the Supreme Court in various decisions, the writ Page 33 of 82 HC-NIC Page 33 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT petitions challenging the show-cause notice was maintainable when the impugned notices were issued without jurisdiction. Reliance is placed on the decision in case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Ors., reported AIR 1999 SC 22, and in case of Calcutta Discount Co. Ltd. Vs. Income Tax Officer, Companies District I, Calcutta and Anr., reported AIR 1961 SC 372.
(vii) The authority issuing the impugned notice had already made up its mind and there was no point in going to the authority, which had no jurisdiction.
(viii) The Mamlatdar had permitted the land to be changed from new tenure to old tenure after charging 60 times assessment, which was lawful. Such order, even if was void, was required to be declared as void by the appropriate authority or the Court. The Counsel has relied upon the decision in case of Pune Municipal Corporation Vs. State of Maharashtra & Ors., reported in AIR 2007 SC 2414 in this regard.
Page 34 of 82 HC-NIC Page 34 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT
(ix) The petitioners were the bona fide purchasers, who had purchased the lands not from the original owner or donor, but from the subsequent purchasers.
(x) Bhoodan Yagna Act 1953 was not applicable to the State of Gujarat, and the circulars/instructions issued by the Government were also not applicable to the petitioners' lands. Even otherwise, executive instructions are not enforceable as held by the Supreme Court in case of State of U.P. and Anr. Vs. Johri Mal, reported in (2004) 4 SCC 714.
(xi) The original owners, who had donated the land to Thakor Maganji Gagaji in 1957, had not raised any dispute claiming his right, title or interest, and therefore, the State could not have taken action under Section 79A of the Code. 7.2 Submissions made by the learned Additional Advocate General Mr. P.K. Jani for the respondent State are as under :-
(i) The petitions challenging the impugned notices were not maintainable as the petitioners Page 35 of 82 HC-NIC Page 35 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT have been called upon to give reply to the notices only, which do not affect or take away any rights of the petitioners.
(ii) All the issues including the issue of jurisdiction could be raised before the concerned authority.
(iii) The lands in question have been granted under the Bhoodan Yagna spear-headed by Acharya Vinoba Bhave, and hence, the recipients of the said lands could not have sold or transferred their interest in the said lands.
(iv) 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.
(v) 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.
Page 36 of 82
HC-NIC Page 36 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT
(vi) Pursuant to 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.
8. Submissions in the third set of petitions:-
8.1 Submissions made by the learned Counsels Mr.Sunil Joshi and Mr. Hitesh Padhya for the petitioners are as under :-
(i) The land in question originally belonged to the private individual Balakrishna Harivallabhdas, who had gifted the same to the Bhoodan Samiti, who in turn had allotted the same to the landless persons for cultivation and thus Bhoodan Samiti had acted only as a facilitator but it did not have any legal status.
(ii) The so-called breach of the conditions of the Bhoodan Lekh i.e. the document transferring Page 37 of 82 HC-NIC Page 37 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT the land in favour of the predecessor-in-title of the petitioner would not per se create any right, title or interest in favour of the State Government to initiate the proceedings under the Code.
(iii) The Bhoodan Lekh was an informal inchoate document without registration and therefore did not create any right in favour of the Government.
(iv) The circular dated 6.1.2004 providing that if the recipient of the Bhoodan land had abandoned the same, such lands would be treated as unclaimed and would be vested in the Government, was illegal and unconstitutional. The impugned orders passed by the respondent authorities without granting opportunity of hearing to the petitioners and other similarly situated persons were passed in gross violation of the principles of natural justice and therefore void ab initio.
(v) The petitioners and other occupiers of the lands had put up construction mainly of Page 38 of 82 HC-NIC Page 38 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT residential units on the lands in question and were residing there with their families for the last many years. The person in possession of land in assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner, as held in case of Rame Gowda (Dead) by Lrs. Vs. M. Varadappa Naidu (Dead) by Lrd. And Anr., reported in (2004) 1 SCC 769.
(vi) The impugned orders passed under Section 79A and Section 61 of the Code were illegal and arbitrary.
(vii) The petitioners had become the owners of the plot in question under Section 27 of the Limitation Act and they could not be dispossessed without following the due process of law.
8.2 Submissions made by Mr.C. R. Mishra for the respondent Gujarat Sarvodaya Mandal, Bhoodan Samiti :-
(i) As per the Bhoodan Yagna Scheme, the grantee/allottee would get only limited right for cultivation. Such allottee had no right to sell Page 39 of 82 HC-NIC Page 39 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT such land without the prior permission of the competent authority.
(ii) The purchaser being aware about such tenure of the land, being Bhoodan land, did not get better title than the allottee.
(iii) 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 Bhoodan Committee.
(iv) The 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.
(v) The petitioner had no locus standi to challenge the impugned orders as he was not the party to the proceedings before the competent authorities.
(vi) The petitioner having purchased the land in question by an unregistered document, did not Page 40 of 82 HC-NIC Page 40 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT have any legal or valid right or title or interest in the said land.
(vii) The occupation of the land by the petitioner or by the respondent No.3 in violation of the terms and conditions of the Bhoodan Lekh was an unauthorized occupation, more particularly when the permission was not obtained from the competent authority.
(viii) The orders passed by the competent authorities were legal and valid and do not warrant any interference by this Court.
9. From the afore-stated different sets of submissions made by the learned Advocates for the parties, it appears that each party has conflicting interest against the others. 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 the landless persons or the agriculturists, on certain conditions by Page 41 of 82 HC-NIC Page 41 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT executing the Bhoodan Lekh, with the intervention of the machineries of the then State Government. The revenue entries were also made in respect of such lands in favour of the donees or allottees, as the occupants recording that such lands were subjected 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, with the passage of time the said donees/allottees transferred and sold out such lands to the third parties. In some cases the Government authorities have taken action and passed the orders against such allottees and the subsequent purchasers, which actions and orders are under challenge in one set of petitions. In some cases, the actions have been just initiated by the State authorities by issuing show-cause notices under Section 79A of the Code. The said notices are also challenged in the other set of petitions. In yet another set of petitions, the original owners i.e. donors have come forward seeking direction requiring the State authorities to take action against the donees and the Page 42 of 82 HC-NIC Page 42 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT subsequent purchasers, and seeking resumption of their lands.
10. Having regard to the submissions made by the learned Counsels for the parties and to the documents on record, following broad questions arise for determination:-
(A) Whether the lands donated in the Bhoodan Yagna by the owners to the Bhoodan Samitis, for being allotted to the landless agriculturists, could have been sold out by such allottees without obtaining necessary permissions from the State authorities ?
(B) Whether the State Government is empowered to take action against such allottees, or the subsequent purchasers, for committing breach of the conditions attached to the Bhoodan Lekh ? (C) Whether the petitions challenging the impugned show-cause notices issued under Section 79A of the Code are maintainable ?
(D) Whether the original owners of the lands are entitled to the resumption of their lands donated Page 43 of 82 HC-NIC Page 43 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT to the Bhoodan Samitis under the Bhoodan Movement ?
(E) Whether the subsequent purchasers could be said to have acquired any legal right, title or interest in respect of the lands donated in the Bhoodan Movement for the benefits of the landless persons ?
11. Before adverting to the rival contentions raised by the learned Counsels for the parties, it would be apposite to refer to the history of Bhoodan Movement. The Bhoodan Movement or the Land Gift Movement was a voluntary Land Reform Movement in India started by Acharya Shri Vinoba Bhave long back in 1951. The mission of the movement was to persuade the wealthy land owners to voluntarily give up their lands for the benefit of the landless people. The philosophy of this movement was rooted in the ancient Indian tradition of "Danam Samvibhag", i.e. redistribution through willing donation and sharing. Acharya Shri Vinoba Bhave walked across India on foot to persuade the land owners and received tremendous response from the land Page 44 of 82 HC-NIC Page 44 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT owners. Lakhs of acres of lands came to be offered by the wealthy land owners by way of donations in the said movement. The first Five- Year Plan of 1952 had also recommended that full support should be given to the movement initiated by the Bhoodan Samitis for securing the land- gifts for the landless. Several States passed the 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. On the 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 Page 45 of 82 HC-NIC Page 45 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT Government was satisfied that the lands transferred by the Bhoodan Samitis were not cultivated personally by the transferees or were alienated by them.
12. It appears that though many other States had passed special statutes after the Bhoodan Yagna Movement was effectively set into motion, for regulating and monitoring the lands donated in the said Movement, unfortunately the Government of Gujarat had not enacted any law in this regard. The then Government of Saurashtra had, in fact, enacted the Saurashtra Bhoodan Yagna Act, 1953 to facilitate the donation and settlement of lands in connection with the Bhoodan Yagna, in the then State of Saurashtra. Section 13 of the said Saurashtra Bhoodan Yagna Act provided for the grant of Bhoodan land to landless persons, and further stated that the grantee of such land shall acquire the rights and incur the liabilities of an occupant, in such land. On the reorganization of the States, and in view of the States' Reorganization Act, 1956, the Bombay State was enlarged by the addition of Page 46 of 82 HC-NIC Page 46 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT Saurashtra State and Kutch State amongst others. Thereafter, on reorganization of the State of Bombay, the Bombay Reorganization Act 1960 came to be enacted to provide for the reorganization of the State of Bombay. As per Section 3 of the said Bombay Reorganization Act 1960, new State known as State of Gujarat comprising the territories of State of Bombay as mentioned therein was formed. Part-IX of the Bombay Reorganization Act 1960 pertained to the legal and miscellaneous provisions, which included power to adapt laws and power to construe laws. 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 Page 47 of 82 HC-NIC Page 47 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT legislature. Accordingly, the Bombay Tenancy and Agricultural Lands Act was made applicable to the State of Gujarat.
13. 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. 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.
14. Now, it appears that in Gujarat alone more than one lakh acres of lands including the lands in question came to be donated by the original owners to the respondent Bhoodan Samiti for being further allotted to the landless persons or agriculturists in the wake of Bhoodan Movement. Page 48 of 82 HC-NIC Page 48 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT It further appears from the documents on record that the documents called "Bhoodan Lekhs" came to be executed in favour of such landless labourers or agriculturists, by the Bhoodan Samitis through the intervention of the State machineries, specifically inserting the conditions that the said lands were to be cultivated by the allottees personally and shall not be alienated or transferred. It also appears that the relevant 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, 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.
15. It also appears that with the passage of time, the respondent Bhoodan Samitis, which were Page 49 of 82 HC-NIC Page 49 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT 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 bother to monitor the said lands, and did not 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 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. Despite such facts, the said Samitis and the State Authorities showing absolute apathy, failed to take actions at the appropriate time against such the wrong doers. Page 50 of 82 HC-NIC Page 50 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT The donees/allottees taking undue advantage of the exemption granted to such lands from the applicability of the Tenancy Act, sought to make huge monetary gains by selling away such lands. Unfortunately as on today, the Bhoodan Samitis on whom the land owners had reposed complete faith and trust, themselves have become either defunct or non-effective on account of the mismanagement of affairs by the members of such Samitis. Large chunk of lands have still remained undistributed even after so many years.
16. From the notes submitted by Mr.G.M. Joshi appearing for the Gujarat Bhoodan Samiti and by Mr.C.R. Mishra appearing for the Gujarat Sarvodaya Mandal, it appears that the Gujarat Bhoodan Samiti was a wing of Akhil Bharat Sarvodaya Mandal also known as Sarva Seva Sang, a registered society under the Societies Act and part of Gujarat Sarvodaya Mandal, established to carry out Bhoodan related work in 1958. During the period 1951 to 1958, the said Bhoodan related work was being looked after by the Gujarat Bhumidan Prapti Samiti, headed by Shri Page 51 of 82 HC-NIC Page 51 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT Ravishanker Maharaj and others. On the establishment of Gujarat Sarvodaya Mandal, the Gujarat Bhumidan Prapti Samiti was dissolved, and the records and documents pertaining to the land gift and redistribution were transferred to the Gujarat Sarvodaya Mandal. The Gujarat Sarvodaya Mandal formed the Gujarat Bhoodan Samiti, a committee to execute and oversee Bhoodan related task on behalf of the Gujarat Sarvodaya Mandal.
17. Though the Court had specifically asked Mr.G. M. Joshi, learned Counsel appearing for the respondent Gujarat Bhoodan Samiti, to place on record the details about the members of the said Samiti and about the working of the said Samiti, he expressed his inability to assist the Court in this regard. According to him, said Samiti is active only at the State level and not at the district level. As per one reported submitted by the said Committee to the Revenue Department in the year 2013, out of the total lands admeasuring 103,530 acres received in Bhoodan Movement, the lands admeasuring 52,546 acres have still remained undistributed. As per the said report, Page 52 of 82 HC-NIC Page 52 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT in some cases Bhoodan lands were acquired for the development projects, in some cases the donees illegally sold out such lands and in some cases agricultural activities became impossible because of operationalization of the Town Planning Schemes. A shocking state of affairs has also been noticed by the Court from the copy of one sale deed dated 26.5.2010 annexed to the said note that the respondent Bhoodan Samiti itself had transferred large chunk of Bhoodan land in favour of one Ilyasbhai Ismailbhai Patel, without obtaining any permission from any Government authorities, under the guise that the donee of the subject Bhoodan land was desirous of exchanging the land with the transferee. It is required to be noted that there is no mention in the said exchange deed whether the land of said transferee Ilyasbhai would be given to the original donee in exchange of the land allotted to him in the Bhoodan Yagna.
18. In the afore-stated state of affairs the main issue that arises before the Court is whether the State Government could take any Page 53 of 82 HC-NIC Page 53 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT action under the Code or under the Tenancy Act against the wrong-doers i.e. against the donees or allottees, or against the subsequent purchasers or the illegal occupants of such lands donated in the Bhoodan Yagna. As stated herein above, the land transferred to or by the Bhoodan Samiti recognized by the State Government was exempted from the applicability of the said Act under Section 88A thereof. Section 88D(1)(ii) 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 is further pertinent to note that there is nothing on record to suggest 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. There is also nothing on record to suggest, 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 Page 54 of 82 HC-NIC Page 54 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT Movement.
19. As such, if no such Samiti was ever recognized by the State Government for the purpose of Section 88A, the question of granting exemption or withdrawal of exemption from the applicability of the Tenancy Act would not arise, and the Court would have presumed that the provisions of the Tenancy Act were applicable to all such lands which were agricultural lands. However, the Court could not be oblivion of the fact that the Bhoodan Lekh i.e. the document of gift in respect of the lands donated by the original owners in favour of respondent Samitis through the intervention of the State machineries were executed, 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 Page 55 of 82 HC-NIC Page 55 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT 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 the light of the laudable object and mission of the Bhoodan Movement, the Court is required to hold that the respondent Samitis must have been recognized at least informally by the State Government at the relevant time. At this juncture, it is also required to be held 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.
20. Now, so far as provisions of the Bombay Land Revenue Code are concerned, it is pertinent note that the said 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 Page 56 of 82 HC-NIC Page 56 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT personal cultivation and were subject to the conditions that such lands would be of new tenure and though heritable were inalienable. Such allotment with conditions came to be recorded in the revenue record also. 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 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 73A A or section 73AB by virtue of any condition lawfully annexed to the tenure] under the provisions of section 62, 67 or 68, may be summarily evicted by the Collector. Proviso Provided that this section shall not apply in the can where the tribal Page 57 of 82 HC-NIC Page 57 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT transferor does not make an application under cause [a] of subsection [3] of section 73 AA within the time specified in that clause for restoration of possession.
21. At this juncture it is also relevant to mention that as per Section 65 of the Code, 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 inter alia states 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. The conjoint reading of these provisions contained in Section 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 Page 58 of 82 HC-NIC Page 58 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT 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 conditions he would be ceased to use and occupy such land legally, and thereafter his use and occupation would be deemed to be unauthorized. Section 61 of the Code envisages penalties for the unauthorized occupation of land set apart for any special purpose, and Section 79A empowers the Collector to evict summarily the person unauthorizedly occupying or wrongfully in possession of any land, the use or occupation of which by reason of any of the provisions of the Code, he was not entitled or had ceased to be entitled.
22. In the light of afore-stated provisions, if the facts of the present petitions are appreciated, then it clearly transpires 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 Page 59 of 82 HC-NIC Page 59 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT Act, the same having been transferred to the Bhoodan Samiti recognized by the State Government. The said lands were allotted to the landless persons by such Samitis on the conditions that they will be of new tenure and be cultivated by such allottees/donees personally, and will not be transferred or alienated by them. The said conditions were lawfully annexed to their such tenure as mentioned in the Bhoodan Lekh executed by and between the concerned landless persons and the Bhoodan Samiti through the intervention of the State Authorities, as recorded in the revenue records. Thus, 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, had transferred the same without the permission of the Collector to the third parties and that too for being used for the purpose other than the agriculture. Such occupants therefore had clearly committed breach of the conditions annexed to their tenure and had contravened the Page 60 of 82 HC-NIC Page 60 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT provisions contained in Section 65 and Section 68 of the Code.
23. Under the circumstances, if the transferees/allottees of the lands, originally donated in the Bhoodan Yagna, were not cultivating the lands by themselves, and/or if they had alienated the same in favour of the third party in contravention of the conditions attached to their allotment and in contravention of the provisions of the Code, would be the persons unauthorizedly occupying or wrongfully in possession of such land as contemplated under Section 79A read with Sections 65 and 68 of the Code. Consequently, any person in possession of such land by virtue of such illegal transfer or sale made by such allottee would be also an unauthorized occupant, liable to be evicted under Section 79A of the Code. The competent authority i.e. the Collector, therefore, would be perfectly justified and authorized to take action under Section 79A of the Code against such persons, who are unauthorizedly occupying or who are in wrongful possession of such lands. The Court, Page 61 of 82 HC-NIC Page 61 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT therefore, is of the opinion that whenever the occupant of the agricultural land uses such land for the purpose 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. 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.
24. Such subsequent purchasers have 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 case of State of U.P. Vs. Brahma Datt Sharma, Page 62 of 82 HC-NIC Page 62 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT reported in (1982) 2 SCC 179, interference of 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, the Courts should be reluctant to interfere. In case of Union of India Vs. Kunisetty Satyanarayan, reported in AIR 2007 SC 906, it has been observed inter alia that the reason why ordinarily a writ petition should not be entertained against a mere show-cause notice stage is that mere issuance of show-cause notice does not give rise to cause of action. It is possible that the proceedings might be dropped by the authority after considering the reply to such notices. 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 Page 63 of 82 HC-NIC Page 63 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT without jurisdiction or authority. Hence, the petitions challenging the show-cause notices being premature, can not be entertained at this stage.
25. This takes the Court to the next issue as to whether the original owners of the lands are entitled to the resumption of their lands donated to the Bhoodan Samitis in the Bhoodan Yagna ? It was sought to be submitted by the learned Sr. Advocate Mr.Mihir Thakore that as per Section 123 of the Transfer of Property Act, gift of 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 donee. Though the said submission sounds very impressive, the same can not be accepted. As transpiring from the copies of Bhoodan Lekhs produced on record, the said documents were signed by the donor, by the authorized person of the Bhoodan Samiti and by Page 64 of 82 HC-NIC Page 64 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT the two witnesses, whereby the subject land was transferred to the landless person, subject to the conditions mentioned therein. The relevant entries were also made in the revenue record in that regard. The original owner or donor never objected to the execution of such document nor challenged the revenue entries at any point of time, on the ground that such transfer was not valid for want of registration. Of course, Mr.P.K. Jani, learned Additional Advocate General had submitted that such documents pertaining to the Bhoodan Yagna were exempted from the requirement of registration, however, he has failed to produce on record any notification, or amendment in the Transfer of Property Act in this regard. In any case, the lands having been donated or sacrificed in the Bhoodan Yagna at least fifty years back by the original owners of the land, it does not lie in the mouth of the legal heir of such donor to say after fifty years that such transfer was not valid for want of registration. In the opinion of the Court such document like Bhoodan Lekh was akin to the document called Special Power of Appointment, Page 65 of 82 HC-NIC Page 65 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT whereby the land would not be transferred in favour of the Samiti, but such Samiti was empowered to allot the same to the landless persons, subject to the conditions mentioned therein. The original donor having relinquished and sacrificed his right, title and interest in the land in favour of the Bhoodan Samiti for the benefit of the landless persons, the State could not be directed to hand over possession of such land even if resumed from such allottee or unauthorized occupant. It is pertinent to note that the Bhoodan lands in question being agricultural lands, would have been subject to the provisions of the Tenancy Act, if not transferred to the Bhoodan Samiti, and in that case the tenants if any, would have become the deemed purchasers under the said Tenancy Act. Each case would, therefore, depend on its own facts, nonetheless the original donor or his heir can not claim the resumption of Bhoodan land under any circumstance.
26. As stated herein above, in certain cases the Bhoodan lands allotted to the landless persons or Page 66 of 82 HC-NIC Page 66 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT the allottees have changed their hands, as such allottees in utter violation of the conditions attached to their tenure and in utter disregard to the provisions of the Code have transferred or sold out such lands to the third parties. However, such subsequent purchaser could not be said to have acquired any legal right, title or interest in such lands donated in Bhoodan Yagna. It can not be gainsaid that none can pass better title than what he has. When the allottee of the Bhoodan land himself did not have any title over the land, his status being only of an occupant subject to the conditions and not of the owner, he could not have transferred any title to the third party. Under the circumstances, the subsequent purchasers or subsequent occupants of such Bhoodan lands also could not be said to be the legal owners or legal occupants of such lands.
27. In that view of the matter, the questions raised earlier are answered by holding that use and occupation of the Bhoodan lands, by the allottees or the transferees being conditional, Page 67 of 82 HC-NIC Page 67 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT such occupants could not have used such lands for non-agricultural purpose, or sold or transferred such lands to the third parties in contravention of the provisions of the Code, otherwise their use and occupation would be an unauthorized occupation, entitling the competent authority to initiate action under Section 79A of the Code. It is further held that the petitions challenging the show-cause notices issued under Section 79A of the Code being premature can not be entertained. It is also held that the original donors or their legal heirs would not be entitled to the resumption of their lands donated in the Bhoodan Yagna, after the summary eviction of the unauthorized occupants under Section 79A or other provisions of the Code. It is also held that the subsequent purchasers of the Bhoodan lands being unauthorized occupants would not acquire any legal right, title or interest in such lands.
28. It is true that the Maharashtra Government at the relevant time and the Gujarat Government after the bifurcation had not passed any legislation for facilitating the donation of the Page 68 of 82 HC-NIC Page 68 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT lands in the Bhoodan Movement and for regulating and monitoring the functioning of the Bhoodan Samitis. Other States like State of Bihar, State of Assam, State of Andhra Pradesh, State of Orissa, State of Karnataka, State of Himachal Pradesh, State of Madhya Pradesh did enact suitable legislations in this regard. It appears that in absence of such legislation the Government of Bombay vide the Circular dated 22.7.1955 had issued certain instructions for removing the difficulties found with regard to the lands donated in the Bhoodan Movement. It appears that thereafter the Government of Gujarat had also issued one circular dated 6.9.1961 giving reference to the said circular dated 22.7.1955 issued by the Government of Bombay instructing the Mamlatdars and Malkaris to take necessary action immediately for recording the entries in the Revenue Records in respect of the lands donated in the Bhoodan Movement. It further appears that thereafter the Government of Gujarat in Revenue Department had issued one communication dated 8.9.1980 to the Collector, Valsad forwarding copies to all the Collectors Page 69 of 82 HC-NIC Page 69 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT instructing inter alia that if the lands donated in Bhoodan Movement were originally of new tenure, they should be treated as of new tenure and likewise old tenure lands be treated as of old tenure. It was further stated that the necessary action be taken in respect of the lands donated to the donees, if the donees themselves were not cultivating such lands and that if the donees had abandoned the land, such land should be treated as the land vested in Government. Another communication in the form of circular was issued by the Revenue Department on 3.11.1988. Thereafter considering both the said communications dated 8.9.1980 and 3.11.1988, the Revenue Department had issued a circular on 6.1.2004. In the said circular, the earlier instructions contained in the said communications were reiterated and stated inter alia that such lands be recorded as land donated in "Bhoodan" or "Bhoodan Land" in the revenue record, and that such lands could not be sold, being of new tenure and of unalienable nature. Though the validity of the said circular dated 6.1.2004 has been sought to be challenged by some of the Page 70 of 82 HC-NIC Page 70 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT petitioners on the ground that the Government in Revenue Department had no powers to issue such circular, the Court does not find any substance in the same. It is needless to say that in absence of statutory law, it is the duty of the executive to secure the vacuum, if any, by issuing executive orders.
29. In the light of afore-stated discussion and findings, let us examine the facts of each set of petitions. 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 found 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 Page 71 of 82 HC-NIC Page 71 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT executed in favour of the respondents as null and void. The said three petitions have been filed by the petitioner alleging that he was the son and legal representative of the original owner Shri Babubhai Ranchoddbhai. 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 Ranchoddbhai 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 Page 72 of 82 HC-NIC Page 72 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT 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 concerned 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 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 Page 73 of 82 HC-NIC Page 73 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT 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 herein above, such petitions being premature, can not be entertained at this stage, and deserve to be dismissed accordingly.
32. In the third set of petitions the petitioners, who are the subsequent purchasers of the lands originally donated in the Bhoodan Yagna have challenged the orders passed by the respondent authorities in respect of the actions taken under the provisions contained in the Code. So far as the facts of SCA No.2193/2004 are concerned, it appears that the Deputy Collector had initiated the action against the legal heirs of Nandaben, who was allotted the land by the original owner through the respondent Bhoodan Samiti by executing Bhoodan Lekh on 6.10.1958 subject to the terms and conditions mentioned therein. The said Nandaben in violation of the said conditions had transferred the subject land Page 74 of 82 HC-NIC Page 74 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT in favour of the respondent Nos.3 to 6 by executing an agreement to sell, and the said respondents further sub-divided the said land into the plots and allotted the same to various persons including the petitioner. The Deputy Collector after initiating the action under Section 79A of the Code, had passed the order on 27.1.2009 directing the eviction of the occupants of the said land. The said order was confirmed by the District Collector in the Appeal filed by the aggrieved persons. Pursuant to the said orders passed by the Deputy Collector and the Collector, the respondent No.9 City Mamlatdar had issued the notice under Section 61 of the Code against the occupants of the said land, including the petitioner, calling upon them to remove the encroachment and pay the penalty. The said order has been challenged by the petitioner in the present petition.
33. From the said facts it clearly emerges that the petitioner was not only in unauthorized occupation of the land in question, but the entire transfer of the land by the allottee Page 75 of 82 HC-NIC Page 75 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT Nandaben to the respondent Nos.3 to 6 was absolutely in violation of the terms and conditions of the Bhoodan Lekh. Even otherwise, the agreement to sell executed by the said Nandaben in favour of respondent Ns.3 to 6 and the other agreements executed by the said respondents in favour of the third party or the petitioner would not create any right, title or interest in their favour in respect of the said lands. It appears that the petitioner was not even party to the proceedings before the Deputy Collector and the Collector. Hence, apart from the locus standi of the petitioner to challenge the impugned orders, the Court is not inclined to interfere with the concurrent findings recorded by the said authorities.
34. Similarly, the SCA No.10319 of 2013 has been filed by the petitioner challenging the impugned orders passed by the Deputy Collector, the Collector and the State Government whereby the land in question has been directed to be forfeited in favour of the State. It appears that the subject land was purchased by the father Page 76 of 82 HC-NIC Page 76 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT of the petitioner from the respondent No.5, who was allotted the same by the Bhoodan Samiti subject to the conditions. There being breach of the said conditions, actions were initiated and order was passed under the Code by the Deputy Collector. The order passed by the Deputy Collector has been confirmed by the Collector and the respondent No.1. There being concurrent findings of facts recorded by the three authorities and there being no jurisdictional error found in the said orders, the Court is not inclined to interfere with the same. Similarly, the SCA No.10322/2013 filed by the petitioners Chandrakantbhai challenging similar orders passed by the respondent authorities also does not deserve any further consideration.
35. Before parting, it may be stated that the mismanagement and lethargy on the part of the respondent Bhoodan Samiti or Sarvodaya Mandal and the apathy and inaction on the part of the Government in not taking appropriate action at the appropriate time against the allottes/donees of the Bhoodan lands, has created a chaotic Page 77 of 82 HC-NIC Page 77 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT 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 more than one lakh of acres were donated, unfortunately the then Government of Bombay and subsequently the Government of Gujarat has not enacted 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.
Page 78 of 82 HC-NIC Page 78 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT
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 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 said Committees within four 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 lands donated Page 79 of 82 HC-NIC Page 79 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT 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 the 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 Page 80 of 82 HC-NIC Page 80 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT 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 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 proceedings further with the pending suits or the proceedings, in accordance with law.
39. Office is directed to send copy of this order to the Chief Secretary, Government of Gujarat, the Principal Secretary (Revenue Department), the Principal Secretary (the Urban Development and Urban Housing Department), the Secretary (Legal Department), Sachivalaya, Gandhinagar, and to the Secretary, Gujarat Page 81 of 82 HC-NIC Page 81 of 82 Created On Fri Dec 30 00:21:21 IST 2016 C/SCA/6157/2011 CAV JUDGMENT Bhoodan Samiti (Gujarat Sarvodaya Mandal), Ahmedabad for expeditious compliance of the order.
40. All the petitions are dismissed. Rule in all petitions stand discharged.
(BELA M. TRIVEDI, J.) FURTHER ORDER After the pronouncement of judgment, a request is made by learned Counsel Mr.Salil Thakore appearing for the petitioners in the first set of petitions and learned Senior Counsel Mr.S.N.Shelat appearing for the petitioners in the second set of petitions to extend the interim orders for the period of four weeks to enable them to approach the Higher Forum. The said request is rejected for the reasons stated in the judgment.
(BELA M. TRIVEDI, J.) vinod Page 82 of 82 HC-NIC Page 82 of 82 Created On Fri Dec 30 00:21:21 IST 2016