Gujarat High Court
Momana Babubhai Hajibhai Parmar vs Collector & on 7 February, 2013
Author: Sonia Gokani
Bench: Sonia Gokani
MOMANA BABUBHAI HAJIBHAI PARMAR....Petitioner(s)V/SCOLLECTOR C/SCA/1548/2004 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 1548 of 2004 FOR APPROVAL AND SIGNATURE: HONOURABLE MS JUSTICE SONIA GOKANI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ MOMANA BABUBHAI HAJIBHAI PARMAR....Petitioner(s) Versus COLLECTOR & 1....Respondent(s) ================================================================ Appearance: MR SV PARMAR, ADVOCATE for the Petitioner(s) No. 1 MS PREETI S PARMAR, ADVOCATE for the Petitioner(s) No. 1 MR K.D. GANDHI, AGP for the Respondent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 07/02/2013 ORAL JUDGMENT
1. This petition is preferred under Article 226 of the Constitution of India seeking following prayers:
8.1 Issue writ in the nature of certiorari or any other writ direction or order quashing and setting aside orders Annexure G and Annexure K and letter Annexure H. 8.2 Issue writ in the nature of mandamus directing the respondent Collector to decide petitioner s request for permanent allotment of lands of S.No.68 admeasuring Acre 6, 35 gunthas of village Haripur, Tal.:
Talala as per condition No.8 of Sanad Annexure A. 8.3 Grant such and further relief that may be deemed just and proper.
2. The facts in capsulized form are to be recorded for the purpose of deciding this petition as under:
The petitioner on 11.11.1963 has been alloted the land admeasuring 1 acre and 25 gunthas of Survey No.68 of Village: Haripur laying down certain terms and conditions for raising certain numbers of trees on the said land.
This arrangement was to continue for the period of 30 years and on expiry of such stipulated period, he had a right to request for the renewal of the same.
It can be noted that on 10.11.1993, 3 years of the expiry of period of 30 years, the petitioner made a request for getting the land transferred on a permanent basis as per one of the covenants of the Sanad issued in his favour.
3. A notice dated 17.02.1998 was issued by the respondents inter-alia for showing cause as to why the request for renewal made by the petitioner be not cancelled.
3.1 This was replied to by the petitioner and consequent thereupon, he participated in adjudication process. The Collector, after bipartite hearing, vide its order dated 05.12.1998 rejected such request of renewal/ grant.
3.2 Aggrieved by the same, the Revision Application was preferred by the petitioner being Revision Application No.65 of 1998 before the Secretary, Revenue Department. The order of the Collector in the Revision Proceedings was confirmed and the said Revision Application was came to be on 23rd October, 2003.
4. This petition, therefore, is preferred challenging both, the order of the Collector dated 05.12.1998 and that the Revisional Authority dated 23rd October, 2003 seeking the afore-mentioned prayers in this petition.
5. It is contended fervently by the learned advocate for the petitioner Mr. S.V. Parmar that although the petitioner has complied with all the terms and conditions set out in the Sanad issued in his favour, by wrongly applying the law to the case of the present petitioner, his request for the renewal has been rejected. It is further urged that the resolution of 1966 would be applicable in case of the present petitioner, as one of the conditions of the said resolution (of the year 1966) permits cultivation of cash crop and therefore taking cash crop of ground nut cannot be the ground of rejecting renewal. Learned advocate has also further pointed out that the petitioner is an illiterate person, mere delay in making such request by three years may not come in his way in getting his substantive justice, particularly when no notice was given by the by the other side for overstay on expiry of period of 30 years.
5.1 Learned AGP Mr. Gandhi appearing for the State has fervently urged that the petitioner was not only bound by the resolution of the year 1966, but also the subsequent resolutions passed by the Government in this connection. He has also urged further that the order of the Collector and that of the Revisional Authority make it abundantly clear that the total number of trees to be grown on the land allotted to the petitioner was 650. However, he had grown only 81 trees in the said area and considering such huge gap and in absence of any sufficient explanation for such a small number of plantation of trees, request for renewal has rightly been rejected. According to the learned AGP, when the land is alloted to a person with a specific object, on petitioner not fulfilling those obligations, he deserves no consideration for renewal as one of the vital conditions for renewal is abiding by all the requirements of the law.
6. On hearing both the sides and on examination of the material on record, for the reasons stated hereinafter, this petition is being allowed.
The facts are hardly in dispute that the land in question situated at Village: Haripur, Tal.: Talala, Dist.: Junagadh had been alloted to the present petitioner on 11.11.1963 for the period of 30 years for the purpose of growing more trees and the total area of the land is 1 acre and 25 gunthas in Survey No.68. Sanad in respect of the allotted land was issued in favour of the present petitioner incorporating certain covenants.
7.1 Sanad of cause, as can be gathered from the document does not specify the total number of trees that were needed to be grown on the land. One of the conditions states (condition no.7) that if the trees are not grown as stipulated, the Government can cancel this Sanad at any point of time. Another condition (condition no.8) stipulates that in the event of petitioner fulfilling all the conditions and on his growing trees as contemplated in the said Sanad, he will be entitled to make a request of renewal on expiry of the period of 30 years. A request of renewal of such allotment is turned down by both the authorities concurrently, this petition is made challenging such orders.
In view of such challenge, the order of the Collector and subsequently that of the Revisional Authority shall have to be examined a little closely.
Three grounds which mainly led to denial of renewal are (i) the delay of three years in making such a request of renewal, (ii) Non fulfillment of the resolution passed subsequent to the year 1966
(iii) inter crop cultivation of ground nut contemplating 650 trees on one acre of land.
Taking firstly the question of delay in filing the application for renewal, of course, delay of three years in making such application by the present petitioner is apparent. The expiry of the term of Sanad was 11.11.1993 and request for renewal had been made on 16.11.1996. Such delay is well explained by the petitioner pointing out that he is an illiterate person and, therefore, the same should be treated at the most a technical breach. Reasonable ground exists for giving benefit to the petitioner for this delay who admittedly is an illiterate person, considering his agricultural background and overall circumstances, this delay should not come in the way of the petitioner in denying him the request. He continued to be in possession of the land all these 3 years and his cultivation did continue, too. No notice was issued by the respondent for alleged illegal holding. Be that as it may, delay per se cannot drive the petitioner out without being considered on merit.
As far as fulfillment of the condition contemplated in subsequent resolution dated 01.01.1987, respondent has failed to point out as to how this was applicable in the case of the present petitioner. It is essentially governing the allotment to be done after the 1st January, 1987. Even if it is assumed that the total number of trees that were to be grown in the area allotted to him were 680, the resolution of the year 1966 is indicative if he grew either Banana or Papaiya trees on the land in question, such number of trees (680) were to be grown. However, he has done cultivation of mango trees, as far as mango tees are concerned, the requirement as per the resolution of the year 1966 is of very less number of trees being 27 in all. In absence of any documentary or material evidence to indicate that the case of the petitioner would be governed by anything other than what has been contemplated in the resolution of the year 1966, his case surely deserves consideration.
10.1 Although it is contended by the learned AGP that condition No.7 contemplates and refers to the resolutions that have been periodically issued by the Government and not the resolution of 6th December 1966 alone cannot be insisted upon by the petitioner however, such interpretation based on the conditions no.7 or 8, in the opinion of this Court, has no basis. These conditions do not appear to be conveying the meaning sought to be contended by learned AGP. Assuming that in absence of any specification, subsequent resolutions are to be made applicable in the case of the present petitioner, at no stage, there appears to be any communication emerging from the respondent State to point out any breach of obligation on the part of the petitioner any time during this long span of 30 years. Revenue Authorities were to be furnished documentary evidences as a part of a routine, however, till the request for the renewal of allotment of land was made by the petitioner, not a whisper is made of such contravention or non-fulfillment of any term.
One very specific observation of the Collector cannot go unnoticed is that the conservator of the forest had opined in favour of the renewal of allotment of land on expiry of Sanad period. That had been ignored and not duly taken into consideration on account of other alleged breaches made by the petitioner. As noted hereinabove, the number of mango trees which were grown, were in sufficient compliance of the resolution of the year 1966 and yet, disregarding relevant criteria and on being into consideration important material, denial is made.
12. On the 3rd Court of cash crop cultivation, resolution of the year 1996 clearly permits such cash crop to be taken, known to be an inter-cultivation. This inter-cultivation since is made permissible in the resolution itself, such ground of denial of renewal is also not found sustainable.
Resultantly, it can be held that the petitioner since has grown the trees and thereby fulfilled such requirement of Sanad and observed all other obligation all these years, he cannot be denied the renewal as none of the grounds of rejection as discussed hereinabove is sustainable and, therefore, the orders of both the authorities require interference.
13.1 With these observations, the petition succeeds and both the orders dated 05.12.1998 and 23.10.2003 are quashed and set aside. The factum of possession of the petitioner is not disputed and the petitioner till the date continues to enjoy the same.
14. It hardly needs to be made clear, at this stage that the petitioner shall be governed by the terms and conditions of the Sanad that may be issued in his favour pursuant to this order.
It is for the respondent to decide keeping in mind local condition, the total area of land possessed by the petitioner and the opinion of the agricultural experts and the prevalent policy to decide the requirement of the total number of trees and other such requirements for the future.
15. The respondent shall complete the requisite process of issuance of Sanad on allotment of the land in question in case of the petitioner expeditiously. Petitioner shall cooperate in completing such task.
16. Petition stands disposed of in the above terms. Rule is made absolute accordingly. No orders as to costs.
(MS SONIA GOKANI, J.) piyush Page 12 of 12