Gujarat High Court
Heirs And Legal Representativeof ... vs State Of Gujarat on 27 July, 2018
Author: Anant S. Dave
Bench: Anant S. Dave
C/SCA/1453/2006 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1453 of 2006
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE ANANT S. DAVE
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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 or any order made thereunder ?
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HEIRS AND LEGAL REPRESENTATIVEOF DECEASED TOPANDAS
KUNDANMAL
Versus
STATE OF GUJARAT
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Appearance:
MR A J PATEL(595) for the PETITIONER(s) No. 1,1.2,2
MR VIMAL M PATEL(1674) for the PETITIONER(s) No.
1.1,1.10,1.3,1.4,1.5,1.6,1.7,1.8,1.9
DELETED(20) for the RESPONDENT(s) No. 9
MR CHINTAN DAVE ASST. GOVERNMENT PLEADER(1) for the
RESPONDENT(s) No. 1
RULE SERVED(64) for the RESPONDENT(s) No.
10,11,12,13,14,2,3,4,5,7,8
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CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE
Date : 27/07/2018
ORAL JUDGMENT
1. When the matter is called out for final hearing, learned Page 1 of 14 C/SCA/1453/2006 JUDGMENT advocate Mr. J.M. Patel, on behalf of Mr. A.J.Patel, states that the advocates have no information now to appear on behalf of the petitioners and that matter is transferred to some other advocate.
2. Perusal of the record reveal that no other advocate has filed Vakalatnama and name of learned advocate Mr. A.J.Patel and Mr. Vimal M.Patel appears for the petitioners.
3. The fact that the land initially was donated by father of Shri Hirabhai Hadabhai to Bhoodan Yagna Committee- respondent No.4. That purpose of parting with land pursuant to movement of Bhoodan Yagna by Shree Acharya Vinoba Bhave and Rules made thereunder was to use the land for beneficiaries namely those persons without any agricultural land and to be used only for cultivation. Admitted facts remain that beneficiaries of the above land namely of Revenue Survey No.518/1 of Rajkot City Survey Revenue admeasuring around 6 Acres and 35 gunthas of land out of which 4 acres and 32 gunthas of land was sold to Mr. Topandas Kundanmal and rest of the land that is 2 acres and 12 gunthas of land to one Valiben Hirjibhai by registered sale deed and admittedly thus committed breach of Rule 14(2) of Bhoodan Yagna Rules framed under The Saurashtra Bhoodan Yagna Act, 1953.
4. As record reveals that initial entries were recorded in village Form No.6 since 1955 in the name of original allottee but in breach of provisions of Bhoodan Yagna Act, 1953, the above land was sold by the donee by a registered sale deed on 26.9.1962. Thus, a clear breach of the Act, 1953 was Page 2 of 14 C/SCA/1453/2006 JUDGMENT committed. No doubt name of purchasers and legal heirs were entered into record but that will not create any right in their favour. Even zoning certificate issued by Town Planning Officer of the Rajkot declaring the area as residential zone and a certificate granted in this regard in the year 2000 and 2004 respectively will not wipe out initial illegality committed. Since show cause notice was issued by the Assistant Collector, Rajkot on 21.10.2004 for initiating breach of provisions of the Act, 1953 that land was sold in breach of conditions, to which, reply was submitted by the petitioners and accordingly Assistant Collector, Rajkot withdrew show cause notice but the Collector Rajkot in exercise of revisional power issued a show cause notice to the petitioners for initiating appropriate proceedings on 30.6.2005. A reply was filed by the petitioners taking various contentions including belated exercise of powers by the authority after 41 years and that land was purchased bonafidely by them, and therefore, such proceedings be withdrawn. However, District Collector, Rajkot vide order dated 30.11.2005 quashed and set aside order passed by the Assistant Collector, Rajkot and directed that land in question be confiscated to the Government forthwith.
5. Various contentions are taken in this writ petition including lack of power that the authority under Bhoodan Yagna Act, 1953 and action taken after 41 years and to possess and own a property is a constitutional right under Article 300A of the Constitution of India, when the land was covered by the Town Planning Act, the order of District Collector require to be quashed and set aside.
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6. Learned AGP has placed into service decision of this Court Hon'ble (Coram: Hon'ble Ms. Justice Bela M. Trivedi) in Special Civil Application No. 6157 of 2011 and allied matters dated 29.12.2016 and submitted that the issue of this petition is covered by the aforementioned writ petition were also similar contentions were raised which came to be negatived. It is not in dispute according to learned AGP that the land was allotted by donor to donee pursuant to Bhoodan Yagna Committee's decision. The petition deserves to be rejected.
7. Having gone through the grounds of the petition on which the order passed by the District Collector is challenged, I am of the view that the subject matter of the writ petition is no more res integra since learned Single Judge has addressed all the relevant provisions of Bombay Tenancy Act, Bombay Land Revenue Code including Section 88 of BT& AL Act, 1956 and Section 65 of Bombay Land Revenue Code and also applicable provisions under Section 79A of the Act. It is not in dispute that land in question was prucahsed by predecessor of the petitioners in contravention to the breach of Bhoodan Yagna Committee and, therefore, exercise of powers by the concerned authority relatively will not come in the way of passing appropriate order. The allotment to the original donee was conditional and simply because the land in question was covered by the provisions of the Town Planning Act which will not prevent the authority from taking action under Bhoodan Yagna Committee Act and BT & AL Act. It is profitable to produce relevant paragraphs of the judgement of learned Single Judge. Paragraphs 18 to 27 reads as under:
Page 4 of 14C/SCA/1453/2006 JUDGMENT "18. In the afore-stated state of affairs the main issue that arises before the Court is whether the State Government could take any 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 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 Page 5 of 14 C/SCA/1453/2006 JUDGMENT 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 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 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 Page 6 of 14 C/SCA/1453/2006 JUDGMENT 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 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 Page 7 of 14 C/SCA/1453/2006 JUDGMENT the permission of the Collector, and that such occupant would be entitled to use and occupy the land subject to the terms and conditions lawfully annexed to his tenure. In case of breach of such terms and 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 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 Page 8 of 14 C/SCA/1453/2006 JUDGMENT 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 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, 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 Page 9 of 14 C/SCA/1453/2006 JUDGMENT 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 showcause 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, 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 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 Page 10 of 14 C/SCA/1453/2006 JUDGMENT 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 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 11 of 14 C/SCA/1453/2006 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 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.
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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, 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."
8. Our attention is drawn to the order dated 16.2.2017 passed by Division Bench in Letters Patent Appeal No.66 of 2017 and allied matters wherein notice is issued and respondents are directed to maintain status-quo with regard to the land of the subject appeals.
9. Considering the above, the issue involved in this writ petition is no more res integra and I am in agreement with the reasonings granted by learned Single Judge as above and find no reason to interfere with the same in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India. The petition deserves to be dismissed and is Page 13 of 14 C/SCA/1453/2006 JUDGMENT dismissed. Rule discharged. No costs.
10. Any interim relief if granted, stands vacated.
(ANANT S. DAVE, J) NAIR SMITA V. Page 14 of 14