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[Cites 5, Cited by 0]

Gujarat High Court

Vinod Shantilal Shah vs State Of Gujarat Thro Secretary on 4 October, 2019

Author: Biren Vaishnav

Bench: Biren Vaishnav

           C/SCA/732/2013                                           ORDER



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 732 of 2013
                                With
            R/SPECIAL CIVIL APPLICATION NO. 9263 of 2009
                                With
            R/SPECIAL CIVIL APPLICATION NO. 15281 of 2012
==========================================================
                      VINOD SHANTILAL SHAH
                              Versus
           STATE OF GUJARAT THRO SECRETARY & 2 other(s)
==========================================================
Appearance:
MR.PARTH CONTRACTOR(7150) for the Petitioner(s) No. 1
GOVERNMENT PLEADER(1) for the Respondent(s) No. 1
NOTICE SERVED BY DS(5) for the Respondent(s) No. 1,2,3
==========================================================

 CORAM: HONOURABLE MR.JUSTICE BIREN VAISHNAV

                                 Date : 04/10/2019

                              COMMON ORAL ORDER

1. In these petitions under Article 226 of the Constitution of India filed by the petitioners, the prayers are more or less similar.

2. For the purpose of brevity, main prayers of Special Civil Application No.732 of 2013 are reproduced hereunder:

"(A) This Hon'ble Court may kindly be pleased to issue a writ of certiorari or a writ of mandamus or any other appropriate writ order or direction under Articles 226 and 227 of the Constitution of India, and thereby be pleased to quash and set aside communication dated 21.9.1999 (Annexure I) as well as the consequential Entries being Entry No.1790 dated 15.5.1993 (certified on 1.7.93) (Annexure­E) and Entry No.2837 dated 11.10.1995 (certified on 2.12.95) (Annexure­ G) and, and further be pleased to hold that Page 1 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019 C/SCA/732/2013 ORDER the land in question is an "old tenure"

land, in the interest of justice, and the status of the land cannot be changed, except by a law enacted by the Legislature;

(B) Pending hearing and final disposal of this petition, Your Lordship may be pleased to direct the respondents not to change the status of law adverse to the interest of the Petitioner."

3. The learned counsel for the respective parties pointed out that the principal question that arises in these petitions is set out by the Learned Single Judge wherein, a similar issue was decided.

4. Mr.Pandya, learned counsel for the petitioner has placed on record the oral judgment dated 24.07.2017 passed by the coordinate bench of this Court in Special Civil Application No.447 of 2000 and allied matters. Relevant paragraphs stating all the facts read as under:

"6. The history with regard to these lands relates back to the time period of the State of Baroda when 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 Page 2 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019 C/SCA/732/2013 ORDER 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 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 Page 3 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019 C/SCA/732/2013 ORDER 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 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."

5. In the background of the above referred facts and the rival submissions, the Court held as under:

"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:­ Page 4 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019 C/SCA/732/2013 ORDER "(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
(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 Ex­Baroda 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 Ex­Baroda State), they may be considered to have been granted permanently. These orders are, however, applicable to those lands which are actually being cultivated by the Rabaris.

(5) Occupancy price, assessment etc. of Page 5 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019 C/SCA/732/2013 ORDER 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 Ex­Baroda regime under Huzur Order dated 3­2­1948 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 3­2­ 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 3­2­1948.

(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 Page 6 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019 C/SCA/732/2013 ORDER 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. Clause­2 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 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. Annexure­H 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 Page 7 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019 C/SCA/732/2013 ORDER 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 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 land as old tenure and passed several orders in 1970s and 1980s.

20. The policy of the State to consider the Page 8 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019 C/SCA/732/2013 ORDER 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 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 Page 9 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019 C/SCA/732/2013 ORDER 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 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 Page 10 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019 C/SCA/732/2013 ORDER 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 justified. The Talati­cum­ 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.

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 Page 11 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019 C/SCA/732/2013 ORDER 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 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."

6. It is not in dispute that the judgment of this Court rendered on 24.07.2017 was challenged by way of Letters Patent Appeal No.1541 of 2018 by the State and by an order of the Division Bench dated 19.12.2018, the Division Bench dismissed the appeals Page 12 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019 C/SCA/732/2013 ORDER of the State. Relevant paragraphs of the order passed by the Division Bench read as under:

"2.2 To answer the issue at hand, that is, whether the lands which formed part of the petitions could be treated as new tenure or old tenure, certain documents on record were examined by the learned Single Judge.
(a) On record, was the Huzur Order dated 03.02.1948 of the erstwhile Baroda State. By this order, a scheme was framed with an intention to settle nomadic tribes of Rabaris and Thakardas and lands were granted to them on certain conditions. The lands were sold to them at a price 15 times the assessment to be recovered in fifteen yearly installments. Further, it could be only sold to persons other than Rabaris and Thakardas after permission from the Government.

(b) On 21.04.1953, orders were passed by the Government of Bombay wherein it was decided that occupancy price, assessment etc. of the lands in question should be recovered in accordance with the Huzur Order dated 03.02.1948.

(c) Reference was also made to the communication dated 30.07.1953 which suggested that the lands granted to such Rabaris should be considered as permanently granted to them. The occupancy price should be recovered in accordance with the Huzur Order of 1948.

(d) By a circular/Government Resolution dated 24.11.1970, the Government had resolved that from 01.11.1970, the new tenure land was to be converted into old tenure without taking any premium. This was with respect to land which was granted three years prior to merger and without any restrictions of any time period. 2.3 On considering the documents together with a document dated 18.11.1997 of the Collector, it was observed by the learned Page 13 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019 C/SCA/732/2013 ORDER Single Judge that such lands are treated as old tenure lands. Reading of the order of the Collector dated 18.11.1997 indicates that it refers to the communication dated 30.07.1953, which in turn falls back on the Huzur Order dated 03.02.1948, where land is granted to the Rabaris on condition of the order of 1948, one of which stipulated payment of 15 times the assessment price, which has been paid.

2.4 From the very beginning, therefore, the land was granted without any restricted tenure, as is also evident from the Report of the Prant Officer. The revenue record also notes that the assessment price of 15 times has been paid and therefore the revenue authorities have treated the land as old tenure. On merit, therefore, on examination of the communication under reference, the learned Single Judge answered the question in favour of the original petitioners - respondents herein holding the land to be old tenure.

3. Ms. Nisha Thakore, learned Assistant Government Pleader made strenuous efforts to impress us to hold otherwise and requested us to upturn the findings of the learned Single Judge. She submitted that perusal of the Huzur Order dated 03.02.1948 and Collector's order dated 30.07.1953 specifically mentioned that no sale of the concerned lands should be made without prior sanction of the Collector. That the order of revisional authority dated 21.09.1999 had set aside the communication dated 18.11.1997. The fact that the petitioners applied for permission and were ready to pay premium itself suggested that the land was new tenure land.

4. On an independent assessment of the documents on record, especially, the Huzur Order dated 03.02.1948 and the Collector's order dated 30.07.1953 together with the order dated 18.11.1997, it becomes clear that on payment of assessment price at 15 Page 14 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019 C/SCA/732/2013 ORDER times the higher price, the land was made "old tenure" and therefore no reason existed to ask for permission to pay premium and therefore the learned Single Judge, in our opinion, rightly held that the lands in question were old tenure land.

5. Even otherwise, the other aspect which the learned Single Judge has considered is the aspect of delay as reflected in the judgement under challenge, particularly, paragraph no.23 thereof where the learned Single Judge has observed that after a passage of time from 1948 to 1997, the State cannot change the tenure of land. To prevent duplicity, we reproduce, with concurrence, the relevant portion of paragraph no. 23 and paragraph no.25 of the judgement of the learned Single Judge :

"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. ...
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 Page 15 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019 C/SCA/732/2013 ORDER uninterrupted entering into the transaction also as old tenure lands."

6. It is also pertinent to note that the learned Single Judge has kept it open for the State to undertake an exercise as directed in the judgement. We, therefore, see no reason to interfere in the judgement of the learned Single Judge impugned in the present appeal.

7. Appeal is accordingly dismissed. Civil Application for stay also stands disposed of accordingly. No costs. "

7. In view of the undisputed fact that these petitions were part of the same group but however got detached from the said group, the oral judgment rendered by this Court in Special Civil Application No.447 of 2000 and allied matters so confirmed by the Division Bench by its oral order dated 19.12.2018 in Letters Patent Appeal No.1541 of 2018 shall govern these petitions.
8. Accordingly, all three petitions are allowed. Communication dated 21.01.1999 as well as the consequential entries being entry no.1790 dated 15.05.1993 and entry no.2837 dated 11.10.1995 are quashed and set aside and it is held that the land in question is an "old tenure" land.
9. Petitions are accordingly allowed.
(BIREN VAISHNAV, J) ANKIT SHAH Page 16 of 16 Downloaded on : Fri Oct 04 23:26:11 IST 2019