Gujarat High Court
Heirs Of Decd Harijan Soma Hamir & vs State Of Gujarat & 4 on 20 January, 2014
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/2446/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2446 of 2012
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HEIRS OF DECD HARIJAN SOMA HAMIR & 1....Petitioners
Versus
STATE OF GUJARAT & 4....Respondents
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Appearance:
MR MANOJ SHRIMALI, ADVOCATE for the Petitioners.
MR NJ SHAH, LD. ASSTT.GOVERNMENT PLEADER for the Respondents.
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 20/01/2014
ORAL ORDER
1. By way of this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 03.06.2003 passed by the Collector, Junagadh as well as the order dated 11.08.2011 passed by the Special Secretary (Appeals), Revenue Department, Ahmedabad.
2. It is the case of the petitioners that the father of the petitioners - Harijan Soma Hamir was granted land bearing survey No.60 of Mouje:
Toraniya, Taluka and District: Junagadh admeasuring 4 acres and 4 guntha, for the purpose of growing fruit bearing trees for a period of 30 years vide order dated 06.09.1967 on certain conditions. It appears from the record that the original allottee - Harijan Soma Hamir expired on Page 1 of 10 C/SCA/2446/2012 ORDER 20/01/1982. The present petitioners in their capacity as heirs of the original allottee - Harijan Soma Hamir on completion of the period of 30 years, filed an application for renewal as the land can be granted to the legal heirs and representatives of originally allottee on 12/10/2001. The said application was scrutinized by the Collector, Junagadh and as certain breach of conditions were noticed, the Collector passed an order to forfeit possession of the said land. It appears that the Collector has not issued any show cause as to the petitioners as to why the land in question should not be taken back in exercise of powers under Section 79[A] of the Bombay Land Revenue Code. Without giving an opportunity of being heard, Collector passed an order dated 03.06.2003. The said order came to be challenged by way of filing a revision as provided under Section 211 of the Land Revenue Code. However, the Special Secretary, Revenue Department (Appeals) rejected the matter and refused to grant any stay.
3. It appears from the record that the said land was given for the purpose of growing fruit bearing trees. It further appears from the record of the petition that the petitioners applied for extension of time of lease and while considering the same on the basis of some alleged breach, the District Collector vide an order dated 03.06.2003 rejected the said application. The Page 2 of 10 C/SCA/2446/2012 ORDER said order came to be challenged by way of revision and the said revision is dismissed and hence, the present petition is filed.
4. In this petition, the petitioner has interalia challenged the order dated 03.06.2003 passed by the District Collector, Junagadh and confirmed in revision by the Special Secretary, Revenue Department (Appeals) vide order dated 11.08.2011. It reveals from the record that the land in question being survey No.60, admeasuring 4 acres and 4 guntha situated at Village Toraniya, Taluka and District Junagadh was given on lease vide order dated 06.09.1967 for the purpose of growing fruit bearing trees. It appears that as the period of 30 years was expired in the year 1997, the petitioners applied for extension of lease in the year 2001. The said application was processed and as some alleged breaches were noticed, the District Collector vide order dated 03.06.2003 rejected the said application. The said order came to be challenged by way of revision and the said revision is dismissed and hence, the present petition is filed.
5. In response to the Notice issued by this Court, the respondents have appeared and this Court had passed the following order on 19.12.2012: "Mr.Manoj Shrimali, learned advocate for the petitioners submits that the case of the petitioners is covered by judgement Page 3 of 10 C/SCA/2446/2012 ORDER dated 22.10.2012 of this Court passed in Special Civil Application No.4944 of 2012 and connected matters, wherein the matters were remanded to the District Collector for fresh hearing.
Mr.Ronak Rawal, learned Assistant Government Pleader submits that this judgement is not applicable to facts of the present case. However, he prays for time in order to go through the same."
6. In response to the Notice issued by this Court, the respondent No.3 - Deputy Collector has filed Affidavit in reply.
7. Heard Mr.Manoj Shrimali, learned advocate for the petitioners and Mr.N.J.Shah, learned AGP for the respondents.
8. Mr.Shrimali, learned advocate for the petitioners has heavily relied upon the decision dated 22/10/2012 rendered by this Court in Special Civil Application No.4944 of 2012 and other allied matters. He has contended that while considering the application for extension of lease which was granted, the District Collector has taken into consideration the policy of the Government dated 1.1.1987 and 10.6.2003. It is submitted that when the lease was granted to the petitioners in these petitions, no such condition was in existence. It is, therefore, submitted that while considering the application for renewal, the policy which has been framed by the State Government after grant of lease cannot be Page 4 of 10 C/SCA/2446/2012 ORDER the basis of considering the application for renewal. Mr.Shrimali vehemently submitted that at least, it cannot be based on alleged breach of conditions against the petitioners as the petitioners were governed by earlier policy of 196667. Mr.Shrimali also relied upon the decision of the Division Bench of this Court in the case of Dilharba Wd/o Bahadursinh Mohbatsinh Jehwa Vs. State of Gujarat & Anr., passed in Letters Patent Appeal No.2663 of 2010 dated 30.11.2011 as well as decision of this Court in the case of Govinbhai Rajabhai Barad Vs. State of Gujarat & Anr., passed in Special Civil Application No.18202 of 2011 dated 24.7.2012 and has submitted that the very consideration of the Collector being defective on the basis of the decision of the Division Bench, the impugned orders deserve to be quashed and set aside and the matter deserves to be denovo considered by the District Collector. It is further submitted that even the revisional authority while considering the revision has committed a serious error. It is, therefore, submitted that the petition may be allowed.
9. Per contra, Mr.N.J.Shah, learned AGP for the respondents has supported the orders. Learned AGP submitted that even though the lease in these cases were granted prior to 1987 and 2003 policy, while considering the application for renewal, the authorities have rightly considered the Page 5 of 10 C/SCA/2446/2012 ORDER prevailing policy. The learned AGP, therefore, submitted that the petition may be dismissed.
10. Considering the submissions made by both the learned advocates appearing for the parties and on perusal of the impugned orders passed by the District Collector as well as the order passed by the Special Secretary, Revenue Department (Appeals), the picture which emerges is that it is true that the allottee was granted lease for 30 years prior to 1.1.1987. It appears from the affidavit in reply filed by the respondent authority that in fact when the lease was granted, the policy which was enunciated by the State Government vide resolution dated 11.11.1966/6.12.1966 was prevailing. The learned AGP has not been able to point out that there was a condition to grow certain number of trees. The learned AGP no doubt relied upon condition No.7 of the said policy. On bare reading of the said condition, this Court is of the opinion that it is not a condition, but it prescribes an ideal number of trees which can be grown in 1 acre. Such a condition cannot be read as a condition much less breach of condition. In addition to that, while considering the applications for extension preferred by the petitioners, the authorities have considered the policy of 1.1.1987 and 10.6.2003. The learned AGP has further pointed out that in fact even that policy has undergone a change in the year 2004.
Page 6 of 10 C/SCA/2446/2012 ORDER11. At this stage, it would be advantageous to refer to the decision of the Division Bench of this Court in the case of Dilharba Wd/o Bahadursinh Mohbatsinh Jehwa (supra), wherein the Division Bench held as under: "5. Aggrieved by the said order of learned Single Judge, present appeal is preferred. On earlier occasion, when the matter came up for hearing before earlier Division Bench, a copy of Panchnama drawn on 27.07.2010 was produced on record (typed copy indicates 07.07.2010 as the date). This Court, on 04.08.2011, directed the appellant to file additional affidavit giving details of number of trees implanted, types of fruit bearing trees, number of each type of fruit bearing trees and approximate age of trees. They were also directed to enclose photographs of fruit bearing trees with their affidavit. Accordingly, today, the appellant has filed an additional affidavit along with a copy of Panchnama dated 16.08.2011 and eight photographs showing the status of the land and standing trees, which are taken on record. We find that there are large number of fruit bearing trees; viz., 122 Mango trees, 95Chikoo trees and several other trees in form of 310Coconut trees, Blue Berry trees, Neem trees, Lemon trees, Banyan trees, etc. The photographs confirmed the statement made in the Panchnama dated 27.07.2010 and 16.08.2011. We also notice that as per the Panchnama, the life of trees are from five years to twenty years. It is, therefore, factually incorrect finding that there was breach of condition of planting fruit bearing trees. This was the result probably of the fact that the Page 7 of 10 C/SCA/2446/2012 ORDER land records indicated cultivation of Bajara and Groundnut and was silent about the presence of trees. In this context, the condition of grant of land on lease, if seen, would indicate that as per Clause 7, it was permissible to have cultivation of crop between the trees (intercultivation). Clause 13 indicates that the lease can be renewed after 30 years at the discretion of the Collector, which can be renewed for the period of 30 years at the discretion of the Collector. Having noticed these facts, we find that respondent No.2 was in error in concluding that there was breach of condition of lease. As a consequence, the order passed by Revenue Secretary (Appeals) confirming the said order, and order of learned Single Judge again not interfering with the said order, were in error. We, therefore, set aside all the three orders and direct respondent No.2 to reexamine the case of the appellants in light of the fact that there are number of trees grown and there is no breach of condition of lease by the lessee."
12. While going through the impugned orders, such consideration is not coming forth from the record of this petition. Moreover, considering the fact that the original allottee was allotted the lands in question prior to 1987, the conditions which are now found in the policy of 1987, 2003 or latest 2004 cannot be sought to be enforced while considering the renewal as the policy under which the original allottee was granted lease for 30 years nowhere prescribes that the condition which may be changed thereafter shall ipsofacto apply to the present lease also.
Page 8 of 10 C/SCA/2446/2012 ORDER13. In view of the aforesaid, without entering into whether the petitioners are entitled to renewal or not, the impugned orders are hereby quashed and set aside and the matters are remanded back to the District Collector, Junagadh for a fresh decision.
14. It is further made clear that while hearing the petitioners, it is open for the District Collector, Junagadh to verify and take appropriate decision as per the prevailing policy of the State Government, as regards grant of extension of lease for similar purpose i.e. for growing "Fruit Bearing Trees", after affording an opportunity of being heard to the petitioners.
15. As the petitioners are in possession of the lands in question because of the interim orders passed by the Special Secretary, Revenue Department (Appeals), the petitioners are also directed to file an undertaking before this Court, within a period of seven days from the date of receipt of copy of this judgment, that they shall not change the status of land including the possession and use till the matter is reheard by the District Collector, Junagadh as per the present judgment and order. It would be open for the petitioners to submit any further documents before the District Collector, Junagadh.
16. In view of the above, though the petitioners are Page 9 of 10 C/SCA/2446/2012 ORDER in possession of the lands in question, the District Collector, Junagadh shall give top most priority to the same and take appropriate decision as expeditiously as possible, on its own merits.
17. With these observations, the present petition is allowed to the aforesaid extent with no order as to costs. Direct service is permitted.
[A.J.DESAI,J.] *dipti Page 10 of 10