Gujarat High Court
Koli Mavjibhai Mohanbhai & vs State Of Gujarat & 3 on 29 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/15581/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15581 of 2017
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KOLI MAVJIBHAI MOHANBHAI & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
DECEASED LITIGANT, ADVOCATE for the Petitioner(s) No. 2
MR RAJESH O GIDIYA, ADVOCATE for the Petitioner(s) No. 1 , 2.1 - 2.6
MS. THAKORE, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 29/09/2017
ORAL ORDER
1. By this application under Article 227 of the Constitution of India, the applicants call in question the legality and validity of the order dated 1st March, 2017 passed by the S.S.R.D at Ahmedabad, by which, the S.S.R.D rejected the revision application filed by the applicants herein thereby affirming the order of the Collector, Surendranagar dated 30th April, 2015.
2. The facts of this case may be summarized as under;
2.1 The land bearing Survey No.570 Paiki admeasuring 18 acres and 22 gunthas, situated at village Noli, Taluka: Sayla, District: Surendranagar was declared as excess land in the proceedings under the Agricultural Land Ceiling Act. This parcel of land came to be disposed of in accordance with section 29 of the Act. It appears from the materials on record Page 1 of 12 HC-NIC Page 1 of 12 Created On Sat Oct 07 08:50:06 IST 2017 C/SCA/15581/2017 ORDER that one Dadbhai Ravatbhai came to be allotted this parcel of land as a restricted tenure subject to certain terms and conditions. This happened in the year 1971. In the year 1991, Dadbhai Ravatbhai, without any valid permission of any authority, transferred the entire parcel of the land by a registered sale deed in favour of the applicants. In 1995, the authority concerned initiated proceedings for breach of the original terms of allotment. The Deputy Collector, Limbdi, in his order dated 3rd October, 2005, held as under;
Brief fact of the case is that the new and indivisible tenure land stated in subject mentioned above was granted as santhani under land ceiling act was sold to the respondents by way of sale and upon receipt of proposal from the Mamlatdar, Sayla regarding breach of condition, the case was registered and first notice was issued on 4/4/95 fixing the date of 16/5/95 for hearing and subsequently matter was adjourned in the interest of justice on 30/5/95, 18/7/95, 16/10/95, 22/1/95, 5/2/96, 21/3/96, 30/5/95, 15/6/96, 16/6/96, 26/7/96, 18/8/96, 26/6/96, 26/9/96, 9/12/96, 16/2/98 and last date was fixed on 3/10/2005.
The respondent no.2 and 3 were present on 3/10/05 and their statements were recorded. They stated that we have purchased the said land admeasuring Acre - 9, Gunthas - 21 of Survey No.570/1A from Dadabhai Rawatbhai by Registered Sale Deed. As we are illiterate and ignorant and we don't have knowledge of law that the said land cannot be purchased without permission from the competent officer of the government as it is new and indivisible tenure land under land ceiling act and therefore, we are maintaining our subsistence through the said land since its purchase. The well is made on the said land spending huge amount. As the land is our livelihood, consider it as our first mistake and pass an appropriate order.
The Talati - cum - Mantri, Noli was present on 3/10/05 and recorded his statement based on record and looking to entry no.756 dated 6/2/71; the said land was granted Page 2 of 12 HC-NIC Page 2 of 12 Created On Sat Oct 07 08:50:06 IST 2017 C/SCA/15581/2017 ORDER to Dadabhai Rawatbhai in santhani. As per entry no.1582 and 1586 dated 1/12/94, original santhanidar sold the land of Survey No.579 paiki, admeasuring Acre - 9, Gunthas - 21 to Patha Mohan by Registered Sale Deed No.1249 and the land of Survey No.570 paiki A, admeasuring Acre - 9, Gunthas - 21 to Koli Mavji Mohan by Registered Sale Deed No.1250 and both the said entries were certified on 2/1/95. It is stated that the condition has been breached under land ceiling act by selling the said land without obtaining permission from the competent officer and the land in question is in the name of purchaser.
Case papers produced as aforesaid and statements of the respondent no.2-3 and of the Talati-cum-Mantri were perused. As per entry no.756, the new tenure land of Survey No.570 paiki A, admeasuring Acre - 18, Gunthas - 22 of Moje: Noli was given to Dadabhai Rawatbhai in santhani under land ceiling act. Thereafter, as per entry no.1103 dated 15/9/98, the said Dadabhai gave land of Survey No.570 paiki A, admeasuring Acre - 7, Gunthas - 00 to his son Bhikhubhai Dadabhai and the said entry was certified. Thereafter, as per entry no.1380 dated 27/4/91, it appears that Bhikhubhai returned the said land in alimony to his father Dadabhai Rawatbhai and the said entry was certified. The said transaction was also illegal. (1) Entry No.1397 dated 30/9/91, santhanidar sold the land in question to Patha Mohan by Registered Sale Deed No.1249 (2) Entry No.1398 dated 30/9/91, original santhanidar sold the land in question paiki Acre - 9, Gunthas - 21 to Mavji Mohan. Both the said entries were rejected on 13/11/91 after verification that it contains the provisions of the ceiling act. The said new tenure land in question has been sold by respondent no.1 to respondent no.2 and 3 by dividing Survey No.570 paiki into two parts of Acre - 9, Gunthas - 21 each without obtaining permission of the Competent Officer under the Land Ceiling Act by Registered Sale Deed and entry no.1249 and 1250 are certified on 2/1/95. Thus, as the land in question is sold by registered sale deed, breach of condition is clearly revealed in the present matter and hence, following order is passed:
ORDER As the land of Survey No.570 paiki, admeasuring Acre -Page 3 of 12
HC-NIC Page 3 of 12 Created On Sat Oct 07 08:50:06 IST 2017 C/SCA/15581/2017 ORDER 18, Gunthas - 22 of Moje: Noli of Taluka: Sayla granted as santhani under ceiling act is sold by the respondent no.1 to the respondent no.2 and 3 by Registered Sale Deed Entry No.1249 and 1250 without obtaining permission from the Competent Officer, it is hereby ordered to vest the land in question with the government unencumbered without compensation and to remove summarily respondent no.2 - 3 and to dispose of the said land as developed."
2.2 The matter was carried in revision before the Collector, Surendranagar. The Collector, vide his order dated 11th May, 2006, rejected the revision application filed by the applicants, holding as under;
(1) As appellant No. 1 purchased the land bearing Survey No. 570 Paiki, admeasuring 9 Acre-21 Guntha, situated at village Noli, the Entry No. 1398 thereof made in the record of rights was rejected and another Entry No. 1586 dated 1/2/1994 was approved on 2/1/1995. In the same way, as appellant No. 2 purchased land bearing Survey No. 570 Paiki, admeasuring 9 Acre-21 Guntha, situated at village Noli, Entry No. 1397 was registered in the record of rights , which was rejected and another Entry No. 1583 dated 1/12/1994 was registered in the record of rights, which was approved on 1/12/1994.
(2) A request has been made to hold the procedure as cancelled as being time barred, against violation of condition, which has been carried out after a time period of 15 years of rejection of Mutation Entry in the record of rights.
(3) Appellants are having possession and occupancy of the land in dispute since they purchased it and also as per the principle of adverse possession, the appellants cannot be removed from this land after a long time period of 15 years.
(4) As the appellant is poor, illiterate and ignorant of laws and as this land is the main source of the earning for their family, representation is made to regularize it after Page 4 of 12 HC-NIC Page 4 of 12 Created On Sat Oct 07 08:50:06 IST 2017 C/SCA/15581/2017 ORDER taking standard amount of premium.
Thus, on perusing the written application of the appellant and documents of the Lower Court, it appears that -
(1) The land in question was given to Shri Dadabhai Ravatbhai, residing at Noli, Taluka Sayla, District Surendranagar with condition for agricultural purpose, on tenancy basis under the provisions of the Land Ceiling Act.
(2) Before selling out this land to the appellants, the grantee has not taken prior permission of the competent authority and thus, the sale of land in question by original grantee to the appellants without taking prior permission can be termed as breach of condition. Therefore, I do not find it appropriate to interfere with the order dated 3/10/2005 of the Court of the Deputy Collector, Limbadi in Breach of Condition Case No. 64/1994-95. I have carefully considered the papers of this case. Therefore, following order is passed in this case.
Order:-
Appeals of the appellants are rejected and an order is passed to confirm the order dated 3/10/2005 of the Court of the Deputy Collector, Limbadi in Breach of Condition Case No. 64/1994-95."
2.3 The matter, thereafter, was carried before the S.S.R.D. The S.S.R.D, in its impugned order, held as under;
"Considering the oral and written submissions of the applicants, available record and impugned order passed by the Collector, it appears that an order was passed by the Hon'ble High Court of Gujarat in Sp.C.A.No. 10712/2013 dated 24/10/2013 to decide the premium. But, the land in question is surplus under land ceiling act and it is governed by section-30. As such land i.e. the land got surplus under land ceiling act has been sold without any prior sanction, there is no any resolution or policy of the Government to regularize it by the way of recovery of premium as well as the Government has not laid down any policy or resolution to regularize its sell Page 5 of 12 HC-NIC Page 5 of 12 Created On Sat Oct 07 08:50:06 IST 2017 C/SCA/15581/2017 ORDER with retrospective effect. Under section 24 and rule 14 of land ceiling act, such surplus land is to be given only to the societies or persons belonging to S.T. / S. C. caste. Such finding of the Collector appears proper that "being a person of other backward class, you do not fall within section-30 and therefore, your demand to regularize your sell transaction cannot be accepted". That, the land in dispute has been surplus under land ceiling act and it has been allocated. Hence, it cannot be sold without prior sanction. And transfer of such type of land is completely restricted under section-30 of land ceiling act. The object behind the law is to make the persons of backward class self-dependent by making allotment of such land to them so that they can earn their livelihood. Such object should be maintained. The procedure carried out against the law cannot be accepted. Moreover, the judgments delivered by the Hon'ble High Court in 3403/13, 29374/07 are required to be taken into consideration. As the applicant's present application does not appear to be acceptable, following order has been passed.
ORDER Revision application of applicant is hereby rejected. The order no. To. M. / Vashi / 393 to 3939/2015, dated 30/04/2015 passed by the District Collector, Surendranagar is hereby confirmed."
3. Section 29 of the Gujarat Agricultural Lands Ceiling Act, 1960 reads as under;
"29: Allotment of land vesting in Government-(1) Subject to the provisions of sub-section 1(A), land other than grazing land, which vests in the State Government under section 21 or 26 shall be allotted in accordance with the rules made in that behalf under this Act on payment of occupancy price payable there for in accordance with such rule in the following order of priority;
(i)****
(ii) co-operative farming society, where it is-
(a) a co-operative joint farming society, the members of which are agricultural labourers, landless persons or Page 6 of 12 HC-NIC Page 6 of 12 Created On Sat Oct 07 08:50:06 IST 2017 C/SCA/15581/2017 ORDER small holders or a combination of such person;
(b) a co-operative farming society, the members of which are agricultural labourers, landless persons or small holders or a combination of such persons;
(iii) agricultural labourers and landless persons;
(iv) small holders;
provided that the extent of land to be allotted to a co-
operative framing society referred to in clause (ii) together with the land held as owner or tenant individually by the members thereof shall not exceed on area equal to the ceiling area multiplied by the number of members thereof;
Provided further that the State Government may, by notification in the Official Gazette, give, in relation to such local areas as it may specify, such priority in the above orders, as it thinks fit to any class of persons who, by reason of the acquisition of their land for any development project approved for the purpose by the State Government, have been displaced, and required to be re-settled.
(1A)(a)Where there are two or more co-operative farming societies falling under sub-clause (a) or (b) of clause (ii) of sub-section (1) preference shall be given in the following order, namely-
(I) a co-operative society, the membership of which is held partly by persons belonging to a Scheduled Tribe and partly by persons belonging to a Scheduled Caste;
(ii) a co-operative society, the membership of which is held partly by persons belonging to a Scheduled Tribe and partly by persons belonging to a Scheduled Caste;
(iii) a co-operative society each of the members of which belongs to a Schedule Caste;
(iv)(a) a co-operative society, the membership of which is not solely held by persons belonging to a Scheduled Tribe or Scheduled Caste;
(b) in the order of priority in the case of persons falling Page 7 of 12 HC-NIC Page 7 of 12 Created On Sat Oct 07 08:50:06 IST 2017 C/SCA/15581/2017 ORDER under (clauses (iii) and (iv) of sub-section (1), a person belonging to a Scheduled Tribe shall have precedence over other persons and a person belonging to a Scheduled Caste shall have precedence over persons other than those belonging to a Scheduled Tribe.
(1B) The amount of occupancy price in respect of any land under sub-section (1), shall be equal to the amount of compensation determined in respect of such land under section 23.
(2) Where land which vests in the State Government under section 21 or 26 was used by the holder before such vesting, as grazing or growing grass or is grazing land, the State Government may dispose it of in such manner as it thinks fit.
(3) An order of allotment of land under sub-section (1) or (2) if made by a Revenue Officer shall be subject to an appeal or revision as provided in Chapter XIII of the Bombay Land Revenue Code, 1879 (Bom. V of 1879) as in force in the area within the jurisdiction of such officer and nothing in Chapter VI of this Act shall apply to such order."
4. Section 30 of the Act, 1960 provides for the restriction on transfer or sub-division of the land allotted under section 29, which reads as under;
"Section 30: Restriction on transfer or sub-division of land allotted under section 29:-(1) Save as otherwise provided in sub-section (2) no land allotted under section 29 shall be-
(a) transferred whether by way of sale (including sale in execution of a decree of a civil suit or of an award or order of any other competent authority) or by way of gift, mortgage, exchange, lease or otherwise, or
(b) sub-divided (including sub-division by a decree or order of a Civil Court or any other competent authority) whether by partition or otherwise, without the previous sanction of the Collector. Such sanction shall not be given (except in such circumstances and on such conditions as hereinafter mentioned, namely-Page 8 of 12
HC-NIC Page 8 of 12 Created On Sat Oct 07 08:50:06 IST 2017 C/SCA/15581/2017 ORDER (I) In the case of land allotted to a co-operative society, the membership of which is held wholly or partly by persons belonging to a Scheduled Tribe or Scheduled Caste or of land allotted to a person belonging to a Scheduled Tribe or Scheduled Caste, if the transfer of sub-division thereof is in favour of a co-operative society of the same class or of a person belonging to a Scheduled Tribe or Scheduled Caste or of a person not belonging to a Scheduled Tribe or Scheduled Caste for want of a person belonging to a Scheduled Tribe or Scheduled Caste.
(ii) In the case of land allotted to any co-operative society or person other than a co-operative society or person referred to in clause (I)
(a) the transfer or sub-division is in favour of an agriculturist who holds land less in area than the ceiling area, an agricultural labourer or a landless person,
(b) the transfer or sub-division is in favour of a person not being a person referred to in clause (I), who bona fide requires the land for a non-agricultural purpose, (c ) the land is required for the benefit of an industrial or commercial undertaking of an educational or charitable institution.
(d) the land is required by a co-operative framing society,
(e) the land is being sold in execution of a decree of a Civil Court or for the recovery of arrears of land revenue or of any sums recoverable as arrears of land revenue, or
(f) the land is being given in gift whether by way of trust or otherwise and such gift is made bona fide by the holder in favour of a member of his family.
(iii) The person who obtains land by transfer or sub- division in accordance with the provisions of this sub- section shall commence the use of the land for the purpose for which he obtained land, within a period of one year from the date on which he takes possession of the land or within such further period not exceeding five years in the aggregate as the Collector for reasons to be Page 9 of 12 HC-NIC Page 9 of 12 Created On Sat Oct 07 08:50:06 IST 2017 C/SCA/15581/2017 ORDER recorded in writing may from time to time fix.
(iv) If the person fails to comply with the condition specified in clause (iii), the sanction given under this sub- section shall stand cancelled and the transfer or as the case may be, the sub-division of the land in favour of the person shall for the purpose of sub-section (4) be deemed to be in contravention of this sub-section.
(2) Notwithstanding anything contained in sub-section (1), it shall be lawful for a person to mortgage or create a charge on his interest in the land allotted to him under section 29 in favour of the State Government in consideration of a loan advanced to him by the State Government under the land Improvement Loans Act, 1883 (XIX of 1883), the Agriculturists' Loans Act, 1884 (XXII of 1884) or the Bombay Non-Agriculturists' Loans Act, 1928 (Bom. III of 1928), or in favour of a co- operative society (or in favour of a land development bank or the State Bank of India constituted under the State Bank of India Act, 1955 (Act 23 of 1955) or a subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (Act 38 of 1959), or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (Act 5 of 1970) in consideration of a loan to him by such co-operative society (or by any such bank), and without prejudice to any other remedy open to the (State Government, the co-operative society, or as the case may be, the bank) in the event of his making default in payment of such loan in accordance with the terms on which such loan was granted, it shall be lawful for the (State Government, the co-operative society, or as the case may be, the bank) to cause his interest in the land to be attached and sold and the proceeds to be applied in payment of such loan.
(3) Any subsequent transfer or sub-division of land transferred or sub-divided in accordance with sub-section (1), shall also be subject to the provisions of sub-section (1).
(4) Any transfer or sub-division of land in contravention of sub-section (1) or (3) and the acquisition of such land under such transfer or sub-division shall be in valid and the land shall stand forfeited to the State Government."
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5. Indisputably, the land was allotted in terms of section 29 of the Act in favour of Dadbhai Ravatbhai as a landless person. Dadbhai Ravatbhai was supposed to cultivate the land and earn his livelihood out of the same. He could not have transferred the land in favour of the applicants and make a profit out of it. Such transfer is hit by section 30 of the Act, 1960. Having purchased a restricted tenure land with eyes wide open, it is now the case of the applicants that they are ready and willing to pay the premium of the land on the basis of the market value or Jantri value of the property. This aspect has been dealt with and considered by the authorities and the prayer has been declined.
6. Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that no error, not to speak of any error of law could be said to have been committed by the authorities in passing the impugned orders. I see no good reason to interfere, in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India, with the concurrent findings recorded by the three revenue authorities. If the request of the learned counsel is acceded, it will be nothing but travesty of justice and will be contrary to and in violation of the statutory provisions of the Act. Let me, for the time being, give benefit of doubt to the applicants that they are the bonafide purchasers of the property for value without notice, but the fact remains that the transaction is absolutely illegal. The land which is allotted by the Government to a landless person or an agricultural labourer with the avowed object that he may earn his livelihood out of the same, cannot be permitted to be transferred so as to make a profit out of it.
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7. I may only say that the reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of courts tends to degenerate into misplaced sympathy and generosity and private benevolence. It is essential to maintain the integrity of legal reasonings and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mode of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability. (see Kerala Solvent Extractions Ltd. v. A.Unnikrishnan and another, (1994)2 LLJ SC 888).
8. In such circumstances referred to above, this application fails and is hereby rejected.
(J.B.PARDIWALA, J.) Vahid Page 12 of 12 HC-NIC Page 12 of 12 Created On Sat Oct 07 08:50:06 IST 2017