Gujarat High Court
Lrs Of Decd. Kashiram Kanjibhai ... vs State Of Gujarat on 16 February, 2023
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/2341/2023 ORDER DATED: 16/02/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2341 of 2023
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LRS OF DECD. KASHIRAM KANJIBHAI MEERABEN WD/O KASHIRAM
KANJIBHAI BRAHMAN
Versus
STATE OF GUJARAT
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Appearance:
MR ANKIT Y BACHANI(5424) for the Petitioner(s) No. 1
for the Respondent(s) No. 2,3,4,5
MR RONAK B. RAVAL, AGP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 16/02/2023
ORAL ORDER
1. Rule returnable forthwith. Learned Assistant Government Pleader waives service of notice of rule on behalf of the respondent - State.
2. With the consent of the learned advocates for the respective parties, the matter is taken up for final hearing today.
3. In the present writ petition, the petitioner has prayed for quashing and setting aside the order dated 25.06.2012 passed by the respondent No.2 - Assistant Collector, Tharad as well as the order dated 21.07.2016 passed by the respondent No.4 - District Collector, Palanpur, District Banaskantha.
4. At the outset, learned advocate Mr.Bachani, appearing for the petitioner has submitted that the issue raised in the present writ petition is squarely covered by the judgment of this Court dated 10.10.2022 passed in Special Civil Application Page 1 of 12 Downloaded on : Fri Feb 17 20:59:37 IST 2023 C/SCA/2341/2023 ORDER DATED: 16/02/2023 No.13853 of 2017 and allied matters. It is submitted by learned advocate Mr.Bachani, that the petitioner is one of the 42 families being refugees, who had settled at Kachchh and who had approached this Court by filing various writ petitions.
4.1 Learned advocate Mr.Bachani, has further submitted that in fact, when the petitioner has approached to give benefit of the judgment, he was informed that he has to seek similar order from the High Court, wherein and whereby the similar orders have been set aside by the High Court, however in his case the impugned orders passed by the respondent authorities still subsist and hence, he has filed the writ petition.
4.2 It is further submitted by the learned advocate Mr.Bachani, on instructions, that so far as the land of Kachchh is concerned, the same is already vested in the State Government and the land in question i.e. the land at Taluka Tharad, District Banaskantha, the petitioner is still holding the same.
5. Brief facts in a nutshell are that the petitioner's family migrated to Village Tharad District Banaskantha after partition between India and Pakistan and the State Government had allotted the land situated at revenue Survey No.23/1B/27, admeasuring hectare 4-04 acre -69 gunthas for rehabilitation purpose for cultivation vide order dated 28.04.1988. It is asserted that since last 28 years and as on today the petitioner is cultivating the land. Thereafter, it appears that an entry to that effect being Entry No.1630 is recorded at Adesar Gram Panchayat, Taluka Rapar, District Kachchh, pursuant to the application filed by the husband of the petitioner.
Page 2 of 12 Downloaded on : Fri Feb 17 20:59:37 IST 2023C/SCA/2341/2023 ORDER DATED: 16/02/2023 5.1 It appears that thereafter, the Additional Collector, Tharad by the order dated 25.06.2012 directed the land to be vested in the State Government under the provisions of Section 79A of the Gujarat Land Revenue Code, 1879. The petitioner filed Appeal No.27 of 2014 against the aforesaid order before the District Collector, Banaskantha, who, after verifying the record vide order dated 20.05.2014 remanded the matter again to the Additional Collector. Thereafter, vide order dated 30.03.2015 passed by the Deputy Collector, Tharad, the land was forfeited and again vested in the State Government.
5.2 Being aggrieved by the above order dated 30.03.2015 passed by the Deputy Collector, Tharad, the petitioner preferred Appeal No.112 of 2015 before the respondent No.4 - District Collector, Banaskantha and the same was rejected by the impugned order dated 21.07.2016.
5.3 It appears that there were various orders passed against such families, who approached this Court by filing various writ petitions, however the petitioner did challenge the same, by filing a writ petition at the relevant point of time. After the aforesaid judgment was passed in favour of other families, the petitioner has chosen to file the present writ petition.
6. Learned advocate Mr. Bachani has submitted that similar treatment, which has been given to other families, is required to be extended to the petitioner. It is submitted that the benefit of the aforesaid judgment may also be granted to the Page 3 of 12 Downloaded on : Fri Feb 17 20:59:37 IST 2023 C/SCA/2341/2023 ORDER DATED: 16/02/2023 petitioner and the impugned orders may be quashed and set aside.
7. Per contra, learned Assistant Government Pleader Mr.Raval, while opposing the submissions advanced by the learned advocate Mr.Bachani, appearing for the petitioner, has submitted that the petitioner is not entitled for the benefits, which have been granted to the other families. It is contended that the petitioner cannot be granted the similar benefits arising out the judgment dated 10.10.2022 passed in other writ petitions since the petitioner has chosen not to challenge the aforesaid order along with those persons. It is submitted that the impugned orders are appropriately passed and the same may not be interfered.
8. The facts, which are not in dispute and are emerging from the pleadings, are that the petitioner is one of those 42 families, who have migrated from Pakistan and have been allotted the land at the relevant point of time in the year 1988 for the purpose of rehabilitation. The petitioner has asserted that as on today, he is cultivating the land at Tharad and the land, which was allotted at Kachchh District is already vested in the State Government. Thus, the dispute only pertains to the land in question at Tharad. It is also not in dispute that various writ petitions were filed before this Court by such families against whom similar orders vesting the land were passed. The first batch of the petitions appears to be filed in 2014 and 2016 and the last of the batch of the petitions are filed in the year 2017 being Special Civil Application No.13853 of 2017 and Page 4 of 12 Downloaded on : Fri Feb 17 20:59:37 IST 2023 C/SCA/2341/2023 ORDER DATED: 16/02/2023 allied matters. The Coordinate Bench of this Court vide judgment dated 10.10.2022 passed in the aforesaid writ petitions, after taking cognizance of the similar judgments and orders dated 07.09.2022 and 10.10.2022 passed in Special Civil Application No.2908 of 2012 and allied matters, had set aside the action of the State Government by observing thus : -
"8. Pertinently, there were some illegalities committed by third parties, which led to an inquiry by the revenue authorities and as a result whereof, the orders were passed by the District Collector in the year 2011, directing vesting of the land in the State Government. On the basis of the order passed by the Collector, Kachchh, proceedings were initiated by the Assistant Collector, Tharad, which led to the passing of orders with respect to other villages. The said order, was unsuccessfully challenged before the Collector. A group of writ petitions, being Special Civil Application no.2898 of 2014 and allied matters, Special Civil Application no.2900 of 2014 and allied matters, Special Civil Application no.2908 of 2014 and allied matters and Special Civil Application no.7557 of 2016 were filed before this Court. The said writ petitions, have been disposed of by separate common judgments dated 7.9.2022 and 10.10.2022 respectively. In the common judgment passed in the common judgment passed in Special Civil Application no.2908 of 2014 and allied matters, this Court, has observed thus:-
"9. The petitioners have filed additional affidavit and alongwith the affidavit, they have placed on record the two representations, both dated 02.01.2007, followed by another representation dated 08.07.2008. Undeniably, the said representations have been received by the office of the Mamlatdar, Collector, Circle Officer and the concerned MLA. In the representation addressed to the Collector, Kutch, it has been clearly stated that some miscreants are trying to dispose of the land by forging the documents in the name of the allottees. The allottees also informed that they have already received the land, however, they shall not be responsible or have nothing to do with the said transaction. It was also pointed out that till date, no steps have been Page 5 of 12 Downloaded on : Fri Feb 17 20:59:37 IST 2023 C/SCA/2341/2023 ORDER DATED: 16/02/2023 taken to carry out the correction in the revenue record. In the last paragraph, the allottees, requested the State Government to seal the revenue record and take it in its possession. In another letter/representation to the Mamlatdar, the concern of disposal of the land in question by miscreants was reiterated. The allottees requested the Mamlatdar to take action. Then comes the communication dated 08.07.2008 by one Gadhvi Ranmaldan Badraji to the District Collector, Kutch, requesting that his name be cancelled only with a view to seeing that it is not misused.
10. Despite the said representations by the allottees to the Collector, Mamlatdar and other authorities, it appears that no steps were taken by the authorities. Only in the year 2011, as aforesaid, the Collector, Kutch, passed an order on the basis of the proposal dated 14.02.2011 of the Deputy Assistant Collector, Anjar. The ancestors of the petitioners/representatives of the allottees remained present before the Collector and pointed out about the representations and had also shown their willingness to hand over the possession. The Collector, Kutch therefore, passed an order dated 13.05.2011, directing the land to be vested in the State Government. So far as the conversion of the land by the order of the Mamlatdar dated 11.02.2008 is concerned, it was quashed and set aside so also, the entry no. 349. At this stage, it is also required to be noted that the order dated 13.05.2011 passed by the Collector, Kutch was subject matter of challenge before the learned Secretary, Revenue Department (Appeals), by the so called purchaser which, according to the case status, has been disposed of and to the best of the knowledge of the petitioners, that order has attained finality and not challenged before the higher forum.
11. As aforesaid, the Collector, Kutch, has recorded in detail, about the stand of the allottees. The Collector, after hearing the petitioners, third parties and the State Government, directed vesting of the land in the State Government and as aforesaid, also cancelled the order dated 11.02.2008, passed by the Mamlatdar, converting the land from new Page 6 of 12 Downloaded on : Fri Feb 17 20:59:37 IST 2023 C/SCA/2341/2023 ORDER DATED: 16/02/2023 tenure to old tenure and the entry no.349 of sale. The Collector, in its order, has categorically recorded that the land has been allotted to the refugees at Tharad. But, the land continued to remain in the name of the allottees. It is further recorded that there is a lapse on the part of the local office. That the Talati has not informed to the higher authority about the allottees not using the land. Despite the land having not being used by the original allottee, it has been converted into old tenure land. The Collector has also noted about the transaction of the year 2007 and conversion of the land in the year 2008 from new tenure to old tenure. The said illegality has not been attributed to the allottees or petitioners, but the third parties. Taking note of the private complaint, the Collector had also recommended initiation of disciplinary proceedings against the officers. With the aforesaid observations, the Collector passed an order dated 13.05.2011 whereby, the land in question of village Bambhansar was directed to be vested in the State Government. Additionally, the Collector also quashed the order of the Mamlatdar, converting the land from new tenure to old tenure, so also the entry. In the whole order of the Collector, Kutch, there is not a whisper or any allegation worth the name, made against the petitioners or any of the allottees about illegal disposal of the land.
12. Therefore, from the order of the Collector, Kutch, it is clear that it is not the case of the revenue authorities that any mischief or illegality has been committed by the petitioners or their ancestors and by doing so, they took advantage. On the contrary, as is discernible from the order, the allottees and petitioners had extended not only their consent but, also brought it to the notice of the revenue authorities about the illegality and the transaction by third parties. Mere continuation of the name of the petitioners in the revenue record, it cannot be said that the petitioners have taken any benefit at both the places, namely, at Rapar taluka as well as Tharad taluka. Therefore, from the contents of the order of the Collector, Kutch, it is difficult to conclude that there was any Page 7 of 12 Downloaded on : Fri Feb 17 20:59:37 IST 2023 C/SCA/2341/2023 ORDER DATED: 16/02/2023 malafide or ill-intention on the part of the petitioners to have continued with the possession at Rapar and to take advantage. Also, nothing has been placed on record to substantiate that after the representations were made by the allottees in the years 2007 and 2008, that the authorities at Taluka Rapar, have taken any steps. Having not taken any steps and then to find fault of the allottees and the petitioners, would be unreasonable and unjust.
13. Adverting to the order, which has been passed by Assistant Collector, Tharad, it is required to be noted that the Assistant Collector has stated the facts in one paragraph and by abrupt conclusion in the operative portion, has made a reference of the order passed by the Collector, Kutch, dated 13.05.2011. The Assistant Collector has concluded that there is a breach of conditions and therefore, directed vesting of the land in the State Government. The Assistant Collector was also of the opinion that the land was supposed to be returned back but, the same has been disposed of. There is nothing in the order of the Assistant Collector to come to the conclusion that there is a breach of conditions of the order of 1988. In the opinion of this Court, such findings arrived at by the Assistant Collector are without any evidence, arbitrary and perverse and cannot be countenanced.
14. In the revision application before the Collector, the petitioners have taken all the available grounds, including filing of the application and bringing it to the notice of the authorities about the disposal of the land illegally. It is required to be noted that the order of the Collector is running into four paragraphs. In paragraph 1, it has given the details of the proceedings, followed by the paragraph wherein, the contentions of the petitioners have been recorded. In paragraph 2, the Collector recorded the stand of the petitioners and in subsequent paragraph, the Collector had given its finding. Sub-paragraph (1), is about allotment of the land in favour of the petitioners in the year 1988, thereafter, the fact about the petitioners not Page 8 of 12 Downloaded on : Fri Feb 17 20:59:37 IST 2023 C/SCA/2341/2023 ORDER DATED: 16/02/2023 handing over the possession and taking benefits at two places. In the third paragraph, the reference is of the conversion of the land from new tenure to old tenure and sale in favour of third parties so also, the order of the Collector dated 13.05.2011. In unnumbered paragraph 3, the Collector took note of the fact of allotment of the land on new and impartible tenure. In the subsequent paragraph, which would be penultimate paragraph, the Collector, while taking note of the order dated 13.05.2011 passed by the Collector, Kutch as well as the order dated 30.05.2012 passed by the Assistant Collector, straightaway concluded that there is a breach of condition no.11. However, disregarding the grounds raised by the petitioners, the Collector has straightaway, without applying its mind, has confirmed the order of the Assistant Collector dated 30.05.2012. which exhibits sheer non- application of mind on the part of the Collector for, none of the grounds raised by the petitioners in the revision application has been dealt with.
15. In the judgment of the Apex Court in the case of Kranti Associates Private Limited vs. Masood Ahmed Khan reported in (2010) 9 SCC 496, it has been held and observed that the reasons have virtually become an indispensable component of the decision making process, observing principles of natural justice by judicial, quasi judicial and even by the administrative bodies. It is also well established that reasons facilitates the process of judicial review by the superior courts. When the administrative, judicial or quasi judicial authorities are passing any orders, the order has to be a reasoned order. Any unreasoned order would be in violation of principles of natural justice. Mere reiteration and half-hearted reiteration of the order of the Collector, cannot be said to be the findings arrived at by the Collector, Tharad. Therefore, it was expected of the Collector to have assigned the reasons. Had the Assistant Collector and Collector examined the order of the Collector, Kutch dated 13.05.2011 minutely, the conclusion about breach of conditions by the petitioners, would not have been there. Considering the steps taken by the petitioners Page 9 of 12 Downloaded on : Fri Feb 17 20:59:37 IST 2023 C/SCA/2341/2023 ORDER DATED: 16/02/2023 and the inaction on the part of the revenue authorities, the order passed by the Assistant Collector is illegal and bad as well.
Therefore, both the orders, namely, the order of the Assistant Collector dated 30.05.2012 as well as the order dated 24.12.2013 passed by the District Collector, deserve to be quashed and set aside."
9. In the present case, the Collector, Kachchh, has passed an order dated 13.5.2011. The Collector, noted the fact that the names of the allottees continued in the revenue record. Despite the fact that the allottees were not utilising the land, has converted the land from new tenure to old tenure for the purpose of agriculture for which, order has been passed dated 29.9.2008. The sale deed has also been executed, which aspect has been denied by the heirs of the original allottee on the ground that their names have been misused for the purpose of creating forged documents. It was also brought to the notice of the Collector that a private complaint has been filed. The Collector, was also of the opinion that disciplinary proceedings, are required to be initiated against the employees of the State Government. With these observations, the Collector, Kachchh, quashed and set aside the order of the Mamlatdar dated 18.12.2008, converting the land from new tenure to old tenure and also cancelled the entry no.287. Moreover, the Collector directed the land to be vested in the State Government. The Collector, has noted the facts about allotment in the year 1988. Also the fact that the allottees have not taken any steps and their names continued in the revenue record. With respect to the lands in the districts of Kachchh and Banaskantha, the Collector has observed that the allottees, have taken dual benefits. It is also recorded in the order that there appears to be communication gap between the two offices of the districts, namely, Kachchh and Banaskantha. The Collector, was of the opinion that the allottees have committed breach of condition 10 and therefore, directed vesting of the land of Kachchh in the State Government.
10. On the basis whereof, the Assistant Collector, Tharad, in the first instance, has passed an order dated 25.6.2012, directing vesting of the land, which was challenged before the Collector and the Collector, remanded the same. In remand, the Deputy Collector, passed an order dated 20.7.2015, making reference to the proceedings before this Court being Special Civil Page 10 of 12 Downloaded on : Fri Feb 17 20:59:37 IST 2023 C/SCA/2341/2023 ORDER DATED: 16/02/2023 Application nos.2898, 2899 to 2912 of 2014, 2304 of 2014 and allied matters. The Deputy Collector, was also of the opinion that the allottees have not placed on record any evidence and having failed to do so, the land was directed to be vested in the State Government. In the order of the Deputy Collector, there is a specific reference of the application by the allottees to the Mamlatdar as well as the M.L.A. in the year 2007. The Deputy Collector, recorded that the alleged illegality was within the knowledge of the revenue authorities, but the Mamlatdar, Rapar, has not taken any steps. Reference is also made about the sale of the land of the allottees of Bambhansar and therefore, the Deputy Collector, observed that it is difficult to believe that the said illegality was not within the knowledge of the allottees. The Deputy Collector, therefore, concluded that the allottees have taken a dual benefit which aspect has been acknowledged by the Collector in order dated 13.11.2013. Hence, the Deputy Collector, directed vesting of the land in the State Government and the said order, was confirmed by the Collector vide order dated 15.12.2016."
9. Thus, the present petitioner who was also allotted the land in question in the year 1988 and also belongs to 42 families in whose favour the order is passed by this Court, is also entitled to the similar treatment. The benefit of the aforesaid judgment, which has been declared in various writ petitions is also required to be extended to the present petitioner. The similar orders have been set aside by this Court in the group of petitions and hence, the order dated 25.06.2012 passed by the respondent No.2 - Assistant Collector, Tharad as well as the order dated 21.07.2016 passed by the respondent No.4 - District Collector, Palanpur, District Banaskantha are hereby quashed and set aside in terms of the directions and observations made by this Court in the judgment dated 10.10.2022 passed in Special Civil Application No.13853 of 2017 and allied matters.
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10. The respondent authorities are directed to extend similar benefits to the petitioner which have been granted to other families.
11. In view of the above, the writ petition is allowed. Rule is made absolute accordingly.
(A. S. SUPEHIA, J) MB/24 Page 12 of 12 Downloaded on : Fri Feb 17 20:59:37 IST 2023