Gujarat High Court
Puranraj Ganpatraj Shah & 3 vs State Of Gujarat & on 24 July, 2017
Author: A.Y. Kogje
Bench: A.Y. Kogje
C/SCA/447/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 447 of 2000
With
SPECIAL CIVIL APPLICATION NO. 3598 of 1999
With
SPECIAL CIVIL APPLICATION NO. 11857 of 2009
With
SPECIAL CIVIL APPLICATION NO. 5398 of 2003
With
CIVIL APPLICATION NO. 5853 of 2017
In
SPECIAL CIVIL APPLICATION NO. 5398 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.Y. KOGJE Sd/-
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1 Whether Reporters of Local Papers may be allowed to Yes
see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law No
as to the interpretation of the Constitution of India or
any order made thereunder ?
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PURANRAJ GANPATRAJ SHAH & 3....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance - SCA No.447 of 2000:
MR A J PATEL, ADVOCATE for the Petitioners
MR VENUGOPAL PATEL, AGP for the Respondents
Appearance - SCA No.3598 of 1999:
MR ASHISH SHAH, ADVOCATE for the Petitioners
MR VENUGOPAL PATEL, AGP for the Respondents
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Appearance - SCA No.11857 of 2009:
MR A J PATEL, ADVOCATE for the Petitioners
MR VENUGOPAL PATEL, AGP for the Respondents
Appearance - SCA No.5398 of 2003:
MR AS ASTHAVADI, ADVOCATE for the Petitioner
MR VENUGOPAL PATEL, AGP for the Respondents
Appearance - CA No.5853 of 2017:
MR AS ASTHAVADI, ADVOCATE for the Applicant
MR VENUGOPAL PATEL, AGP for the Respondents
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CORAM: HONOURABLE MR.JUSTICE A.Y. KOGJE
Date : 24/07/2017
ORAL JUDGMENT
1. This judgment and order shall govern disposal of SCA No.447 of 2000, SCA No.3598 of 1999, SCA No.11857 of 2009 and SCA No.5398 of 2003.
Considering the facts arising in each of the petitions to be identical and the issues raised being similar, with the consent of the learned Advocates for the parties, all these petitions are disposed of by this common judgment and order.
2. The issue at the heart is whether to consider the lands in question in the respective petitions to be new tenure lands as is now considered by the State Government or as old tenure lands as is argued by learned Advocates for the petitioners, since its inception, the Page 2 of 34 HC-NIC Page 2 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT lands are old tenure lands.
3. The facts in brief in each of these petitions are cursorily stated hereinbelow:-
4. Special Civil Application No.447 of 2000 is by the owners of land bearing block No.212, admeasuring 4162 sq. mtrs. of village Santej, Tal. Kalol, Dist.Gandhinagar, which the petitioners had purchased from the original land owners by regular sale deed in the year 1991. The mutation entry was effected in the name of the petitioners and was certified in the same year. Thereafter, in the year 1997, petitioner Nos.1 and 2 entered into an agreement to sale with petitioner Nos.3 and 4 and it was at that stage that in the year 1997, the Government decided to treat the land in question as old tenure land and accordingly, premium was sought to be recovered in the year 1999. It is this action which is now the subject matter of challenge, where the petitioners have prayed for quashing and setting aside communication dated 21.09.1999 by the State to the Collector, Mahesana.
4.1 Civil Application No.10961 of 2013 is an application moved in Special Civil Application No.477 of 2000 as Prem Couductors and others had purchased the land in question from petitioner No.3 - Bharat Aluminising Page 3 of 34 HC-NIC Page 3 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT Corporation Pvt. Ltd. and therefore, had applied for substituting name of Prem Conductors and in support have produced order of Company Petition No.106 of 2010 connected with Company Application No.99 of 2010. 4.2 Special Civil Application No.5398 of 2003 is a petition which is filed by M/s.Aditi Export Pvt. Ltd. through its Director, which was subsequently substituted by Vinod Realities Pvt. Ltd. by order of this Court. This petition is pertaining to land admeasuring 4076 sq. mtrs. from block No.75/B and 3449 sq. mtrs. of land out of block No.234 of village Santej, Tal. Kalol, Dist. Gandhinagar. In this petition, it is the case of the petitioners that as the incentive was made available for the purpose of establishing industry in this area, lands were treated as NA lands and no NA permission was required. This was in line with the police of encouraging establishment of industries in village Santej and hence, the petitioners purchased the aforementioned lands. However, when the incentive was to be made available, only on the ground that the Collector, under the impugned communication was to consider the lands in question as new tenure lands, there was no question of developing industry on new tenure land without NA permission and as the subject lands were to be treated as new tenure lands, sale of the lands in question to the Page 4 of 34 HC-NIC Page 4 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT petitioner was in breach of condition of allotment of the land and hence, permission to establish industry was refused, which led to filing of this petition challenging communication dated 17.12.2002 by the Collector to the petitioners and also effectively withdrawing incentive under the relevant laws of Sales Tax.
4.3 Civil Application No.10502 of 2014 in Special Civil Application No.5398 of 2003 is filed by newly substituted applicant - Vinod Realities Pvt. Ltd. for interim direction to inform the petitioners about the amount of premium to be paid by the petitioners towards the said lands. This application came to be disposed of, wherein this Court has observed in order dated 18.06.2015 that the parties are now ready to pay the premium as determined by the State authorities.
4.4 Civil Application No.385 of 2016 in Special Civil Application No.5398 of 2003 was filed by the applicant-Vinod Realities Pvt. Ltd. seeking direction from the Collector to inform the petitioners about amount of premium to be paid and also for direction of setting of Rs.75 lakhs, which was earlier deposited towards the same. This application also came to be disposed of upon recording the statements of Counsel which is reflected in order dated 05.05.2016.
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4.5 Special Civil Application NO.3598 of 1999 is
filed by Bharat Aluminising Corporation for land
admeasuring 14864 sq. mtr. of revenue block No.210 and land admeasuring 4162 sq. mtr. of revenue block No.212 of village Santej, Tal. Kalol, Dist. Gandhinagar, which the petitioners had agreed to purchase from the original owners in the year 1993 and this petition challenges order dated 04.02.1999 by the Collector, Mahesana, wherein the Collector had responded to the petitioners that by communication of Revenue Department dated 21.09.1999, the lands in question are to be treated as new tenure lands and thereby, subject to payment of premium.
4.6 Civil Application No.12320 of 2013 in Special Civil Application No.3598 of 1999 was filed to substitute name of Prem Conductors Pvt. Ltd. in place of Bharat Aluminising Corporation. This application came to be disposed of by order dated 09.10.2014.
5. As the common question arises about lands in questions to be of new tenure or old tenure, for the sake of brevity, the facts are derived from Special Civil Application No.5398 of 2003.
6. The history with regard to these lands relates back to the time period of the State of Baroda when Page 6 of 34 HC-NIC Page 6 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT Mahesana district was under the rule of the State of Baroda and by 'Huzur' order dated 03.02.1948, the lands were earmarked for settlement of 'Rabaris' and 'Thakardas' of Mahesana district, who were leading life of nomads and for their settlement and benefit, this order came to be passed.
6.1 On 21.04.1953, the Government of Bombay addressed a letter to the Collector, Mahesana about informing the decision of the Government to grant land allotted to 'Rabaris' and 'Thakardas' under the 'Huzur' order permanently, subject to conditions set out in that order. Accordingly, on 20.10.1968, by mutation entry No.3016 in the revenue record, the decision of the Government of granting lands to 'Rabaris' and 'Thakardas' was given effect to. Such entry came to be certified by the Mamlatdar on 31.12.1968. On 24.11.1970, there was a resolution by the State Government by which it was decided that the land of new tenure should be permitted to be converted into old tenure and the holders of such lands will not be required to pay any premium. 6.2 On 08.04.1982, the lands were purchased from the original owners by six separate sale deeds by one Prafulbhai Somabhai Patel and on 23.04.1982, NA permission in respect of these lands was granted by the office of TDO, Kalol. On 07.07.1982, said Prafulbhai Page 7 of 34 HC-NIC Page 7 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT Patel sold these very lands by way of sale deeds to one Safari Resorts Cooperative Housing Society Ltd. The transaction of sale was upheld by the Additional Collector in favour of original purchaser - Prafulbhai Patel in the revisional proceedings and on 05.10.1993, the Prant Officer, Mahesana submitted a report to the Collector regarding tenure of the land. On 23.05.1994, State of Gujarat took a decision to continue to treat the land as old tenure land and on 19.07.1994, mutation entry No.2184 came to be effected recording the fact of grant of NA permission by the competent authority in connection with the land in question. Therefore, from the date of decision of the competent authority, the land was shown as NA land, in occupation of Safari Resorts Cooperative Housing Society Ltd. Again on 10.06.1997, report by the Prant Officer, Mahesana regarding tenure of the land in question was made to the Collector, Mahesana and the Revenue Department also, by its communication dated 18.11.1997, held that the lands covered under mutation entry No.3016 are to be treated as old tenure lands by the Government. On 22.12.1999, the petitioner purchased the lands in question from Safari Resorts Cooperative Housing Society Ltd. By two registered sale deeds. On 26.12.1999, the petitioner made an application for permission under Section 63AA of the Bombay Tenancy Act and in the same year, an application was made to the Page 8 of 34 HC-NIC Page 8 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT Superintendent of Central Excuse for issuance of registration certificate under the Central Excise Rules. 6.3 The concerned authorities for development of industries issued eligibility certificates to the petitioner regarding sales tax incentives as per the policy of the Government. However, in the year 2002, the Industries Commissioner issued show cause notice for cancellation of the eligibility certificate, where it came to the knowledge of the petitioner that application under Section 63AA of the Tenancy Act is refused and the ground for such refusal is that the Government has all of a sudden decided to treat the lands in question as new tenure lands in place of old tenure lands as considered previously.
7. Learned Advocate Mr.A.J.Patel for the petitioners in SCA No.447 of 2000 and SCA No.11857 of 2009 has submitted that the principal point that arises in this petition is whether the State Government or the Collector can issue circular or order, which has retrospective or retroactive result. It is submitted that nobody except Legislation has power to issue a circular or instructions which have retrospective operation.
7.1 Learned Advocate took this Court through the
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Huzur's order and thereafter through GR dated 24.11.1970 of the Revenue Department, State of Gujarat pertaining to treating the lands under Bombay State and local States merged with the State of Gujarat to be treated as old tenure. On the basis of this, he submitted that from 01.11.1970 onwards, no conversion charges would be applicable to the lands of this nature and even for conversion of lands, no premium would be payable and it was incumbent upon the Mamlatdar and Talati to make such note in the revenue record.
7.2 Learned Advocate also took this Court through the revenue record pertaining to the respective lands and submitted that even in the revenue record, the land was treated as old tenure land and atleast when the petitioners came in possession, the land was continued as old tenure land.
7.3 Learned Advocate drew attention of this Court to the communication dated 21.04.1953 by the Assistant Secretary to the Government of Bombay, Agriculture and Forest Department addressed to the Collector, Mahesana. This communication was pertaining to the lands covered under the Huzur's order dated 03.02.1948. He submitted that the said communication leaves no doubt that the lands under the Huzur's order were meant to be considered as granted permanently and therefore, required to be Page 10 of 34 HC-NIC Page 10 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT treated as old tenure lands. He also relied upon the communication dated 30.07.1953 from the office of the Collector, Mahesana, where again, Government waste lands granted to Rabaris and Thakardas under Huzur's order dated 03.10.1948 to be considered as having been granted permanently.
7.4 It is submitted that therefore, based on the record of the revenue in connection with these lands, transactions subsequently were entered into considering the lands as old tenure lands.
7.5 It is submitted that the petitioner being a Cooperative Society had purchased the land in the year 1982-83 considering the land to be of old tenure. When the petitioner purchased the land, it was considered to be old tenure land that is how the petitioner purchased the land.
7.6 It is submitted that the petitioner purchased the land on the faith of circular dated 24.11.1970. This is the circular, which appears in the paper book at page No.29. The circular is emphatic and mandatory in nature. It considers the land that was granted by the erstwhile Maharaja of Baroda for the purpose of improving position of Rabaris and Thakardas. The then State of Baroda wanted to see that the economic condition of the Rabaris Page 11 of 34 HC-NIC Page 11 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT and Thakardas is improved and therefore, it was granted on a permanent basis and it is clearly stated in the circular in para 2 that Khatedar of the land will not be required to pay any premium at the time of sale of the land.
7.7 It is further submitted that on the faith of the circular of 1970, the petitioner purchased the land in question in the year 1982-1984. No premium was insisted upon and not leviable as per law in operation then. The petitioner thereafter, enjoyed the possession of the land upto 1995.
7.8 It is submitted that the petitioner was shocked and surprised to know that the Collector by communication dated 26.9.1995 treated the land like that of the petitioner to be of new tenure land (page 66). The petitioner also further came to know that in 1997, the Government issued a circular addressing to the Collector that the land like that of the petitioner should be considered to be old tenure and addressing a letter by the Revenue Department to the Collector on 18.4.1997. 7.9 It is submitted that at page 68, the Revenue Department addressed another letter to the Collector, Mahesana that the land like that of the petitioner can be considered to be new tenure. When the petitioner came to Page 12 of 34 HC-NIC Page 12 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT know about the change of policy in the year 2009, he addressed a letter to the Collector on 17.6.2009 and urged that his land should not be considered to be new tenure because of the circular of the year 1970. 7.10 It is that when the petitioner purchased the land, it was considered to be old tenure land and it cannot be unilaterally changed to new tenure without there being any legitimate cause whatsoever. 7.11 It is submitted that the Mamlatdar, in response to the letter written by the petitioner, addressed a letter to the petitioner dated 13.7.2009 that the land will be considered to be new tenure land and if the petitioner is aggrieved, he should go to the Court of law. Therefore, the petitioner has filed SCA No.11857 of 2009 with following main prayers.
"(B) Be pleased to issue appropriate writ of mandamus and/or any other appropriate writ, order or direction directing the respondents to consider the land of the petitioner to be old tenure on the basis of the decision that was taken long back and further be pleased to quash and set aside the communications/circulars dated 20.6.1995 (Annexure F), 21.9.2009 (Annexure H) and 18.7.2009 (Annexure L) as well as consequential entries changing the status of the land from old tenure into Page 13 of 34 HC-NIC Page 13 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT new tenure.
(C) Be pleased to declare that the subsequent change of policy could not have been given retrospective operation and further be pleased to direct the respondents not to consider the circulars issued subsequently to be affecting the land in question retrospectively and further be pleased to direct the respondents that in law, it would not be possible for them to consider mere executive instructions to have retrospective operation."
8. Learned Advocate Mr.Asihsh Shah for the petitioners in SCA No.3598 of 2009 and learned Advocate Mr.Asthavadi for the petitioners on SCA No.5398 of 2003 adopted the submissions made by learned Advocate Mr.A.J.Patel.
9. Learned Advocate Mr.Asthavadi further submitted that the lands bearing survey Nos.91 and 91, A, B, C of village Santej, Tal. Kalol were the Government lands. They were numbered as block Nos.234 and 75B after settlement and survey, admeasuring 3449 and 5153 sq. mtrs. He reiterated the submissions made by Mr.Patel insofar as manner in which lands came to be granted to the original owner belonging to Rabari community under Huzur's order dated 03.02.1948. He referred to the order dated 23.04.1982 issued by the Taluka Development Page 14 of 34 HC-NIC Page 14 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT Officer, Kalol, wherein permission for constructing residential premises was granted and along with the order, list of survey numbers and their category was also mentioned, wherein numbers of the petitioners' land, i.e. 91A, B, C and 91 were all falling in the list of lands classified as old tenure.
9.1 Another argument submitted by Mr.Asthavadi is that even communication dated 18.11.1997 from the Revenue Department also considers survey numbers mentioned under entry No.3016 to be treated as old tenure. He drew attention of this Court to entry No.3016, which is produced on record to indicate that his survey numbers were covered by the communication and therefore, required to be treated as old tenure. He further submitted that the impugned communication of treating the lands of the petitioners as new tenure was based on resolution, which, according to the petitioner did not cover lands in question.
10. Learned Advocate Mr.Ashish Shah placed strong reliance on the report addressed to the Collector from the Prant Office, Mahesana dated, which report was based on the record which was scrutinized by the Mamlatdar, which is produced on record at Annexure-H in SCA No.5398 of 2003.
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10.1 He specifically drew attention of this Court to
the relevant portion and submitted that the Huzur's order of 1948 was based on the scheme framed by the Baroda State in 1939 and by order dated 30.07.1953, the Collector, Mahesana had permanently granted these lands to Rabari and Thakarda communities for the purpose of agriculture. It is observed that towards possessory rights, 15 times assessment of the lands was received by the State. Such noting is found on record. It is also indicated in the report that there is no instruction to treat such lands as lands with restricted tenure. He also indicated that revenue entry No.3016 entering the lands on the names of grantees came to be certified on 29.10.1968 and since then, it is continued as old tenure lands and have been transacted as such by the legal heirs of the grantees.
11. Learned Advocate for the petitioners relied upon following judgments:-
I. In the case of The Income-tax Officer, Alleppey vs. I.M.C. Ponnoose & Ors., reported in AIR 1970 SC, 385. This judgment is in realm of taxation, where the Apex Court has held that where no language is found in the provision which may in express terms or by necessary Page 16 of 34 HC-NIC Page 16 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT implication empower the authorities exercising subordinate legislative function then such authority cannot make a rule, regulation or bylaw, which can operate with retrospective effect. Based on this principle, it is submitted that when the Government by its action and necessary implication has treated the lands in question as old tenure lands, thereafter, only by way of legislation, the same can be treated as new tenure land and not by a mere circular giving retroactive effect and considering the old tenure land as new tenure land.
II. In the case of Gujarat State Financial Corporation Vs. M/s. Lotus Hotels Pvt.
Ltd., reported in 1982 (2) GLR, 49, to
substantiate the argument of estoppel. It
is submitted that though there cannot be a promissory estoppel against a statute, yet where the Government itself has treated the land till 1997 as old tenure, thereafter, the Government is estopped from taking a 'U' turn in 1999 and all of a sudden start treating the land as new Page 17 of 34 HC-NIC Page 17 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT tenure land.
III. In the case of B.L.Sheedhar & Ors. Vs. K.M.Munireddy (Dead) & Ors., reported in 2002 AIR SCW 5221. This judgment was also cited on the principle of estoppel.
12. Learned AGP Mr.Venugopal Patel made a strenuous effort by drawing attention of this Court to various annexures to the petition to submit that the land granted under Huzur's order was of restricted tenure and from inception, it has been treated as a new tenure land. He took this Court through the affidavit on behalf of the State filed by RDC, Gandhinagar and submitted that the land in dispute was granted to Rabaris and Thakardas under a settlement scheme and that allotment was subject to terms and conditions mentioned in order dated 30.07.1953 (Annexure-C to SCA No.447 of 2000), wherein condition NO.5 mentions that no sale of these lands should be made without the previous sanction of the Collector as well as the Government as per the requirement of para-2(V) of the Huzur's order. Therefore, since 1953, it was clear to all concern that the land is a new tenure land.
12.1 Learned AGP thereafter referred to Government resolution dated 16.02.1966, which is on the subject of Page 18 of 34 HC-NIC Page 18 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT the land granted under Rabari settlement scheme by the erstwhile Baroda State. He submitted that the communication dated 18.11.1997 (Annexure-G), considering the lands in question as old tenure lands, was cancelled by the Government under order dated 21.09.1999 (Annexure- H - impugned). The decision was taken in public interest as the State was to suffer a loss of approximately Rs.200/- crores. He thereafter took this Court through various communications made on behalf of the petitioners in the year 1999 and 2000, where the petitioners had volunteered to make payment of premium, which would indicate that the petitioners were aware of the nature of tenure of land and therefore, request was made to the authorities to permit the petitioner, who is a non- agriculturist, to purchase agricultural land. On the application of the petitioners, order dated 04.02.2000 came to be passed by this Court to fix the amount of premium payable as per the assessment of the authorities. Therefore, entire exercise at the behest of the petitioners was undertaken by the State and the petitioners were also fully conscious and aware when they enter into the transaction regarding lands in question about the lands being of new tenure.
12.2 He drew attention of this Court to order dated 30.07.1953, more particularly condition No.5, breach of Page 19 of 34 HC-NIC Page 19 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT which is committed.
12.3 He therefore submitted that when the land was for the first time transacted under 'Banakhat' of 1991, at that time, the land was treated as new tenure land. In absence of challenge to the validity of GR of 1966, the petitioners cannot claim the land in question to be of old tenure.
13. Learned AGP relied upon following judgments:-
I. In the case of Kusum Hotels Private Limited Vs. Kerala State Electricity Board & Ors., reported in (2008) 13 SCC, 213, in response to the argument on the part of learned Advocate for the petitioners on the point of promissory estoppel. He relied upon paras-19, 20, 21 and 36, which read as under:-
"19. There cannot be any doubt whatsoever that a policy decision can be reviewed from time to time. It is also beyond any doubt that the concessions granted can be withdrawn in public interest.
20. Indisputably, the State is also entitled to change or alter the economic policies. Appellants do not have any vested right to enjoy the concessions granted to them forever, particularly when the Board is Page 20 of 34 HC-NIC Page 20 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT constituted and incorporated under the provisions of Electricity (Supply) Act, 1948. Any policy decision adopted by the State would not be binding on the Board, save and except provided for in the Act. The Board being an independent entity, the duties and functions of the Board vis-Ã - vis the State are enumerated in the Act. The Board, however, would be bound by any direction issued by the State Government on questions of policy. A dispute which may arise as to whether a question is or not a question of policy involving public interest, Central Government is the final arbiter. The policy decision adopted by the State on the basis whereof the Board felt obligated to grant electrical connection in favour of the appellants on the basis of industrial tariff must, therefore, be understood in the context of Section 78A of the 1948 Act. What is binding on the Board is the policy of the State. The direction of the State was to apply a particular category of tariff to the appellants. Such directions could have been withdrawn while making another tariff. The State indisputably has the power to grant subsidy from its own coffer instead of directing the Board to grant concession.
21. It is now a well settled principle of law that the doctrine of promissory estoppel applies to the State. It is also not in dispute that all administrative orders Page 21 of 34 HC-NIC Page 21 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT ordinarily are to be considered prospective in nature. When a policy decision is required to be given a retrospective operation, it must be stated so expressly or by necessary implication. The authority issuing such direction must have power to do so. The Board, having acted pursuant to the decision of the State, could not have taken a decision which would be violative of such statutory directions.
36. The law which emerges from the above discussion is that the doctrine of promissory estoppel would not be applicable as no foundational fact therefor has been laid down in a case of this nature. The State, however, would be entitled to alter, amend or rescind its policy decision. Such a policy decision, if taken in public interest, should be given effect to. In certain situations, it may have an impact from a retrospective effect but the same by itself would not be sufficient to be struck down on the ground of unreasonableness if the source of power is referable to a statute or statutory provisions. In our constitutional scheme, however, the statute and/or any direction issued thereunder must be presumed to be prospective unless the retrospectivity is indicated either expressly or by necessary implication. It is a principle of rule of law. A presumption can be raised that a statute or statutory rules has prospective Page 22 of 34 HC-NIC Page 22 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT operation only."
II. In the case of Cheviti Venkanna Yadav Vs. State of Telengana & Ors., reported in (2017) 1 SCC, 283, on the point that it is within the power of the authority of the State to treat any law to have retroactive or prospective effect.
14. To answer the moot question as to the lands which forms part of these petitions should be treated as new tenure land or old tenure land, certain documents, which form part of the record, are required to be analyzed. The phrases "new tenure" or "old tenure" have not been defined under the Land Revenue Code, but use of these words has been in vogue since 1901 under Section 68 of the prevailing Land Revenue Code for convenience of distinguishing nature of tenure of lands. The Huzur's order dated 03.02.1948 is the scheme under which erstwhile Baroda State, with an intention to settle nomadic tribes of Rabaris and Thakardas, decided to grant lands earmarked for their settlement. Conditions Nos.4 and 5 of that order read as under:-
"(iv)The land will be sold at a price 15 times the assessment of the land. This amount will be recovered by fifteen yearly instalments Page 23 of 34 HC-NIC Page 23 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT
(v) The land will be sold amongst themselves with the permission of the Suba and will not be sold to persons other than the Thakardas and Rabaris except with the permission of the Government;"
15. The communication dated 21.04.1953 from the office of the then Secretary, Agriculture and Cooperation Department to the Government of Bombay, while dealing with the land granted under the aforementioned scheme of Mahesana District, orders were passed which contained following points which are relevant:-
"1) Whether the lands at the villages in question are to be considered to have been granted permanently under the Huzur order of 3rd February, 1948, which was subsequently kept in abeyance by the Interim Ministry of the Ex-Baroda State?
5) Whether occupancy price, assessment etc.
of the lands are to be recovered in
accordance with the provisions of the
Hazur Order of the 3rd February, 1948?
3(1) Since the lands in question were already reserved for the Rabari colonization scheme under the Huzur Order of the 3rd February, 1948 (though the order was subsequently held in abeyance by the Interim Ministry of the Ex-Baroda State), they may be considered to have been granted permanently. These orders are, Page 24 of 34 HC-NIC Page 24 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT however, applicable to those lands which are actually being cultivated by the Rabaris.
(5) Occupancy price, assessment etc. of the lands in question should be recovered in accordance with the provisions of the Huzur Order of the 3rd February, 1948."
16. Another communication of the office of the Collector Mahesana dated 30.07.1953 based on the aforesaid letter dated 21.04.1953 is relevant. The relevant clauses of the said communication dated 30.07.1953 read as under:-
"(1) The Government waste lands which had already been granted to the Rabaris and Thakardas during Ex-Baroda regime under Huzur Order dated 3-2-1948 and which are at present being actually cultivated by them should be considered to have been granted permanently to them under the above Huzur Order.
(5) No sale of these lands should be made
without the previous sanction of the
Collector as well as the Government as the case may be, as required under Para 2(v) of the Huzur order dated 3-2-1948.
(8) The occupancy price and assessment of the lands in question should be charged and recovered in accordance with the provisions of the Huzur Order dated 3-2- Page 25 of 34
HC-NIC Page 25 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT 1948.
(10) A register as per form appended herewith should be kept at the village as well as in the Taluka Office to detect whether the occupancy price is recovered regularly along with the value of trees, wells, structures, etc. standing on the land and also to detect whether any breach of condition is detected, it should be reported to the Collector. As regards the recovery of occupancy price, the Mamlatdar should examine this at the time of Jamabandhi inspection."
17. The policy of the State regarding tenure of the land, especially lands of the State merged with the State of Gujarat, is reflected in Government resolution dated 24.11.1970. Clause-2 of this GR provides that after examination of the consequences, the Government had resolved that from 01.11.1970, the new tenure land was to be converted into old tenure without taking any premium and that the entry in this regard was to be made by the concerned Mamlatdar and under his instructions, by the Talati on their own. This resolution governed the land which was granted three years prior to merger and without any restrictions of any time period. The lands in question would be covered under the aforementioned documents which lead this Court to conclude that the State had considered the lands in question to be of old Page 26 of 34 HC-NIC Page 26 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT tenure lands. This is further fortified by communication dated 18.11.1997, which was pertaining to one such land where the Revenue Department of the State had conveyed to the Collector, Mahesana that the lands which are entered in the revenue record vide entry No.3016 are to be treated as old tenure lands.
18. Annexure-H to SCA No.5398 of 2003 is a report of the Prant Office, Mahesana dated 05.10.1993 addressed to the Collector in response to the communication from the office of the Collector dated 12.10.1992. The communication from the office of the Collector was to submit a report regarding lands of village Santej, Tal. Kalol, which was granted under the settlement of Rabaris. A perusal of this report, which is in grate detail, refers to the entry made in 'Hakk Patrak' (village form No.8) bearing No.3016 by 1 to 75 dated 20.10.1968 and the original papers pertaining to the aforementioned lands were traced out, on the basis of which, the report was submitted. The report also refers to the Hazur's order dated 03.02.1948 and the communication from the Bombay State. It was observed in the report that granting of the land under Rabaris settlement at village Santej and upon examination of the record for the entries made, in that connection, the record would not reflect that the land was granted with any restricted tenure and Page 27 of 34 HC-NIC Page 27 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT therefore, from very beginning, in the revenue record of 7/12 and village form No.6, the lands have continued as under unrestricted tenure, meaning thereby old tenure. The report also mentions that the GR dated 16.02.1966, which indeed refers to the land granted under Rabaris settlement scheme on permanent basis was to be treated as land with restricted tenure. However, the lands of village Santej, which are under consideration having been allotted under the Huzur's order of Baroda State, would not be covered under the GR dated 16.02.1966. The report is unequivocal in its mention that from the beginning, the lands in question being treated as land of old tenure.
19. Over and above, an important aspect which the report mentions on the basis of the record is that at the relevant time, towards value of possession, assessment by 15 times was receivable and that such amount has been received, which fact is noted in the revenue record. The State, once having received the amount towards possession value, would not be entitled to once again impose premium for the purpose of converting from new tenure to old tenure. The report further mentions about revenue proceedings in connection with some of the lands which are also the lands in question in these petitions and at that time also, the revenue authority had treated the Page 28 of 34 HC-NIC Page 28 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT land as old tenure and passed several orders in 1970s and 1980s.
20. The policy of the State to consider the lands which are similarly placed as in the instant case, to be treated as old tenure, is also reflected in resolution dated 01.06.1982, which is pertaining to erstwhile Saurashtra State, which had also an identical scheme for "Maldhari" settlement and in those cases, as is found in the aforementioned GR, the cases were to be treated under GR dated 24.11.1970, which has been discussed in the preceding paras. Obviously, the State will not have a different policy for the lands granted in similar fashion.
21. The contention of the State about application of GR of 16.02.1966 is not acceptable as in the case on hand, the lands granted under Huzur's order dated 03.02.1948 would not be automatically treated as lands of Rabari settlement scheme of Mahesana of erstwhile Baroda State of the year 1939.
22. Over and above this, this Court is of the view that the GR dated 24.11.1970 would squarely apply as the lands in question would fall within the scope of operation of GR dated 24.11.1970. As discussed earlier, GR dated 24.11.1970 will apply to the lands of erstwhile Page 29 of 34 HC-NIC Page 29 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT State merged with the Gujarat State and to the lands which are other than the lands granted three years prior to merger without any restriction of period of grant.
23. One more aspect which requires consideration is lapse of time. From the day the land was granted till the communication impugned in the year 1997, the lands were being treated as old tenure lands, which has become evident on the basis of revenue record and various communications in connection with these lands by the authorities themselves. After passage of period from 1948 to 1997, by a stroke of pen, the State cannot change tenure of land. In this connection, support can be drawn from unreported judgment of this Court in the case of Bararaj Viramji Vs. State of Gujarat in SCA No.1824 of 1999 dated 15.03.2001. In this judgment, this Court relied upon a decision in SCA No.7878 of 1996, against which LPA No.626 of 1997 was preferred, which was dismissed by judgment and order dated 24.08.2000. The relevant portion of the judgment reads as under:-
"....It should not be overlooked that the declaration or the treatment of a piece of land as a new tenure land has got serious repercussions and the right of occupants are being limited in many respects. The new tenure land could not be transferred or alienated without Page 30 of 34 HC-NIC Page 30 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT having obtained the prior express permission of the authorities concerned. Moreover, the said land would be required to be utilised and occupied in a manner which is in consonance with the tenure under which the same has been granted. Looking to these serious repercussions which would follow from the factum of making any such entry would oblige everybody concerned to look for the orders of the circumstances in which a particular piece of land is said to be a land of a new tenure.... A perusal of the Government files would go to show that despite the best efforts, the Revenue authorities were not in a position to lay their finger on any order under which this land bearing Survey No.69 could be said to be a land of a new tenure. The matter does not rest here because the Government and the District Survey Officer were trying to find out any order under which such restricted tenure would have been notified in the land revenue records. All the efforts have failed. It appears that the Deputy Secretary, Revenue Department, under a communication dated July 11, 1994 had requested the Collector, Ahmedabad to find out the original of such an entry, but, ultimately, the matter was required to be referred to the Village Talati with a request to find out any such record under which such an entry could have been Page 31 of 34 HC-NIC Page 31 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT justified. The Talati-cum-Secretary of village Panchayat also, upon verification of the entire revenue record, was of the opinion that no such entry or order could be located under which the land could be said to be the land of a new tenure".
24. Moreover, in judgment in the case of Chhotabhai Dahyabhai Thakore Vs. State of Gujarat & Ors, reported in (1997) 3 GLR, 2016, it is observed that mere mention of words "new tenure" in the revenue records is not a sufficient proof of inalienability and/or impartibleity of the land. Further, additional and reliable proof is necessary so that finding of fact on the nature of tenure can be given by the revenue authorities.
25. Even the provisions of the Land Revenue Code mandate action on the part of the authorities either within a time period specified under the statute or within a reasonable time. The chronology mentioned in the preceding paras would clearly indicate that the action on the part of the Government to treat the lands in question as new tenure land after lapse of almost three decades is beyond the comprehension of a reasonable period. Therefore, even from the revenue record, all the concerned, including the landholders were justified in treating the lands as old tenure lands and uninterrupted entering into the transaction also as old tenure lands.
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26. As mentioned in the preceding paras, treating the lands in a particular tenure has attached with it interest of landholders. On facts, it is found that when the State in itself took a decision to treat the lands as new tenure lands, the reasons behind such decision or the decision itself has never been communicated to the landholders, holding interest in the tenure of lands.
27. With the aforementioned facts and circumstances emerging on record, this Court is satisfied that the lands covered under the settlement scheme under the Huzur's order dated 03.02.1948 were by the action of the Government authorities and by necessary implication, came to be treated as old tenure lands and therefore, the same are now required to be treated as "old tenure" lands.
28. In view of the aforesaid discussion, all these petitions are allowed. The impugned communications in all these petitions are quashed and set aside. It is held that the lands which are covered under the Huzur's order dated 03.02.1948 are old tenure lands. Therefore, it will be now for the State to undertake an exercise to trace out the origin of the lands in question, which are subject matter of the present petitions so that the tenure of the lands can be ascertained from its inception. The necessary consequences should follow Page 33 of 34 HC-NIC Page 33 of 34 Created On Mon Aug 14 15:41:25 IST 2017 C/SCA/447/2000 JUDGMENT thereafter. Rule is made absolute to the aforesaid extent. No order as to costs.
29. In view of the order passed in main SCA No.5398 of 2003, no orders on CA No.5853 of 2017. Disposed of accordingly.
Sd/-
(A.Y. KOGJE, J.) SHITOLE Page 34 of 34 HC-NIC Page 34 of 34 Created On Mon Aug 14 15:41:25 IST 2017