J. N. PATEL, J. ( 1 ) RULE. Mr Desai, learned AGP, appears and waives service of notice of Rule for respondents nos. 1 to 3. As the matter was fixed for final disposal, it is finally heard today with the consent of learned advocates appearing for both the sides. ( 2 ) THE short facts of the case are that the petitioner is a cooperative society whose members belong to backward class. The petitioner-society is a farming cooperative society as its name itself suggests. The petitioner-society was allotted land for cultivation as per the order dated 21st May 1975 and 15th March, 1978. It appears that the Deputy Collector, Palanpur, respondent no. 3 herein, issued a show-cause notice dated 21st November, 2002 to the society calling upon it to show-cause as to why the grant of the land should not be cancelled for breach of the condition of allotment. The grounds mentioned in the show-cause notice was that the cultivation was made over the land admeasuring 15 acres only and the list of the members is not produced and that the the land is not used for the purpose for which it was granted for cultivation. The petitioner submitted the reply and thereafter the Deputy Collector passed the order on 24th March, 2003 whereby he has relied upon the report of the Mamlatdar and Talati cum Mantri and it has been found that there is cultivation on only 15 vighas through outside tribals and the other part of the land is allowed to be used for grazing of the cattle. It was also found by the Deputy Collector that the management of the Society is arbitrary and the purpose of the grant is not satisfied and therefore ultimately the breach of condition was found and the land is ordered to be resumed back by the State Government. It also appears that thereafter the petitioner carried the matter before the collector in Appeal and the said appeal is dismissed. The matter was also carried before the State Government in revision and the said revision is also dismissed. Under these circumstances, the petitioner has approached this Court by preferring this petition. ( 3 ) HEARD Mr Patel for the petitioner, Mr Desai learned AGP for the respondent-authority. The matter was also carried before the State Government in revision and the said revision is also dismissed. Under these circumstances, the petitioner has approached this Court by preferring this petition. ( 3 ) HEARD Mr Patel for the petitioner, Mr Desai learned AGP for the respondent-authority. Upon hearing the learned counsel for the parties it appears that the major ground on the basis of which the order for breach of condition has been passed is that the land is not fully utilised for the purpose of cultivation and there is cultivation over a part of the land. The another ground, which was considered by the authority is that in certain area the land is got cultivated through other tribals and the members themselves have not cultivated the same. So far as ground concerning the alleged mismanagement of the society under the Gujarat cooperative Societies Act is concerned, there was no material on record before the Collector that any competent authority under the Gujarat Cooperative societies Act has passed such an order supporting the said aspect that there is any mismanagement of the society. Therefore, in my view, aforesaid two grounds can be considered as the ground related to the exercise of the power by the revenue authority. ( 4 ) AS such, on both the grounds, the matter is covered by the decision of this Court in case of Mohammed iqbal Rahimbhai Mirza v/s State of Gujarat rendered in special Civil Application No. 5877 of 2004 on 26th november, 2004 and in case of Bharwad Vela Mepa v/s State of Gujarat (Special Civil Application No. 11107 of 2007 with Special Civil Application No. 13983 of 2004) dated 8th December, 2004. In the latter decision of this Court dated 8th December, 2004 in Special Civil Application no. 11107 of 2004, the earlier decision dated 26th november, 2004 rendered in Special Civil Application no. 5877 of 2004 was also referred to and relied upon. At paragraph no. 4 it has been observed as under:-" 4. In the latter decision of this Court dated 8th December, 2004 in Special Civil Application no. 11107 of 2004, the earlier decision dated 26th november, 2004 rendered in Special Civil Application no. 5877 of 2004 was also referred to and relied upon. At paragraph no. 4 it has been observed as under:-" 4. Upon hearing the learned advocates parties, it appears that the questions which arise for consideration by this court in these petitions are as to what was the procedure required by the revenue authority for coming to conclusion that the landhasremained uncultivated or not used for agricultural purpose and what was the procedure required to be followed even if the revenue authority had to rely upon the revenue record and/or the panchnama prepared by Talati-cum-Mantri or other officers of the revenue department. There is no dispute on the point that the aforesaid issues are covered by the decision of this court, dated 21. 9. 04 in SCA Nos 3802/04 with SCA No. 3803/04 and another decision dated 26. 11. 2004 in SCA No. 5877/04. In respect to exercise of power for forfeiture of the land in question at part 6 in the aforesaid decision, dated 21. 9. 04 in SCA 3802/04 with SCA No. 3803/04 it has been observed as under: "6. Even if the matter is considered on the substance of the subject matter also, the net effect would be that as there was cultivation shown in the revenue record of village Form 7/12 of the land in question, the Prant Officer proceeded on the basis that the land is transferred in breach of conditions since it was a new tenure land, and therefore, the land is ordered to be forfeited. Merely because the show cause notice has been issued and the owner of the land could not represent the case would not be a sufficient ground to hold that the land is transferred to a third party, may be for cultivation. It is well settled that the village Form 7/12 or revenue record is relevant only for fiscal purposes and merely mutation or other aspect of cultivation is recorded in revenue record, no right which otherwise exists in accordance with law gets altered qua the property in question. It is well settled that the village Form 7/12 or revenue record is relevant only for fiscal purposes and merely mutation or other aspect of cultivation is recorded in revenue record, no right which otherwise exists in accordance with law gets altered qua the property in question. If there is any authenticated record in the village panchayat or with Talati-cum-Mantri showing those rights are created by the transfer by the holder of the land in favour of some other party it may stand on different footing. It appears that there was no record available for altering the rights, possession and/or ownership of the land in question before the Prant Officer. In the absence of such record, the Prant Officer could not have come to conclusion that the land is transferred in breach of conditions. As regards the orders of the State Govt in revision are concerned, it has proceeded on the basis as if the burden is upon the owner of the land to show that he has not transferred. When a statement is made or it is the case of the petitioner that the land is not transferred and is in possession and ownershipofthe petitioner, it will be for the authority to consider if there is any authenticated record available for transfer. In the absence of any lawful document for transferring or creating lawful right in the property in question, it could not be even concluded that the property is transferred in breach of conditions. It may be recorded that the person who is alleged to have transferred the land namely Vardhabhai is represented through respondent Nos 4 and5,legal representatives of deceased Vadhabhai pranlal. Mr. Goswami, Ld. counsel for respondent Nos 4 and 5 also confirms the position that no transfer whatsoever has taken place. It also appears that before the State Govt in the proceedings of revision the affidavit was also filed for such purpose. Further, it appears that the orders are passed by the Prant officer simply on the basis of noting in village Form No. 7/12 of the land in question showing that the cultivation is by other person and not by petitioner and therefore the land is ordered to be forfeited to State. Further, it appears that the orders are passed by the Prant officer simply on the basis of noting in village Form No. 7/12 of the land in question showing that the cultivation is by other person and not by petitioner and therefore the land is ordered to be forfeited to State. When it is a matter pertaining to taking away the property of any citizen mere reliance upon revenue record of village Form No. 7/12 can not be said as sufficient proof for breach of condition. As such, when such aspect is denied by the holder of the property, it must be examined as to whether concerned talati-cum-Mantri made such entry on the basis of hearsay or on the basis of so called material which can not be relied upon or on some extraneous consideration and, if yes, then such entry in village form No. 7/12 can not assume value authorising for concluding the breach and consequential forfeiture of the property. There must be cogent, authenticated and lawful material for altering the rights in immovable properties for such breach. Moreover, even if it is established that there is a breach, and if the authority is to take action of forfeiture, then it should also be examined as to whether the breach was due to circumstances beyond the control of the holder of the property and, if yes, then in that case, harsh action of forfeiture of the property would not be required but the authority will have to consider the matter for imposition of fine/penalty considering the gravity of the breach, including the period for such breach. If it is a matter resulting intoactionof forfeiture of land, then principles of natural justice to its full extent considering the facts and circumstances of the case will be required to be followed. Therefore, only entry in village Form No. 7/12 can not be said as sufficient material attracting the power of authority for forfeiture of the land to the State Government. (emphasis supplied) Under the circumstances, it is apparent that the Prant Officer as well as the State Govt have committed apparent jurisdictional error in exercising power on the basis of the entry in village Form no. 7/12 and holding that there is breach of conditions of grant of land and holding that the land deserves to be forfeited to the State Govt. "further at paragraph no. 7/12 and holding that there is breach of conditions of grant of land and holding that the land deserves to be forfeited to the State Govt. "further at paragraph no. 5 on the point of holding the enquiry whether the land is utilised for agricultural purpose or not this Court observed as under:- "5. Even in the matter of arriving at the conclusion 5. Even in the matter of arriving at the conclusion as to whether the land has remained unutilised for the agricultural purpose or not fully utilised for agricultural purposes during the period of two years under section 65 of the Bombay Tenancy and Agricultural Lands Act, this court in the aforesaid decision in SCA No. 5877/04 at para 8 and 9 has observed as under:"8. ON true construction of Section 65 of the Act, it appears that the State government is clothed with the power to declare that the management of such land shall stand assumed if it appears to the state Government that for any two consecutive years the land has remained uncultivated or full and affective use of the land is not made for the purpose of agriculture, through the default of the holder or any other cause whatsoever, not beyond his control. Further before such declaration, an inquiry is required to be made and thereafter only the declaration can be made for taking management of the land in question or assuming the management of the land. The scope of the inquiry would be as to whether the land has remained uncultivated or whether there is no full or effective use of the land for the purpose of agriculture, but while holding the inquiry it is also obligatory on the part of the authority to inquire and to arrive at an finding as to whether such non-cultivation or non-use of the land to the fullest extent is for the reason beyond the control of the holder of the land or not. Therefore, merely because there is non-cultivation of the land for two consecutive years or merely because there is no full and effective utilization of the land for agricultural purpose for a period of two years, itself is not sufficient for assuming the management of the land, but power may be exercised by the State Government only if it finds that such has happened because of voluntary action or in action on the part of the holder of the land but not on the ground or cause beyond the control of the holder of the land. (emphasis supplied ). Further, for the scope and ambit of the inquiry under Section 65 of the Act, this court in the case of "sanjaybhai induprasad Bhatt v. State of Gujarat", reported in 2000 (3) GLH, 768 has held at para 19, inter alia, as under: "19. . . . The question is that inquiry which has been contemplated under the provisions of Section 65 it has to be understood in light of the principles of the natural justice. Inquiry cannot be considered as formal or merely empty formality for arriving at a particular conclusion. While exercising the powers of the State Government by the Deputy collector, he should have hold proper inquiry because while exercising the powers under Section 65, especially when the Deputy Collector is deciding the right of the petitioner or to decide or adjudicate the question whether the land in question has remainedwithout cultivation or not. That determination of this issue, the Deputy Collector has to consider various aspects keeping in mind the relevant provisions of Section 65 of the Act. It is noted that Section 65 clearly provides that if the land in question remains uncultivated on the ground that it is beyond the control of the petitioner or the land holder, it cannot be considered to be a ground for initiating the inquiry and to passe the order under Section 65. So these are the reasons which were required to be kept in mind while exercising the powers under section 65 of the Act. The inquiry initiated against the land holders who are the owners of the land and result of the inquiry is to deprive the person from the land in question because the land vested with the Government. So these are the reasons which were required to be kept in mind while exercising the powers under section 65 of the Act. The inquiry initiated against the land holders who are the owners of the land and result of the inquiry is to deprive the person from the land in question because the land vested with the Government. Therefore, when any inquiry if it is ultimately likely to result into deprivation of livelihood of the person/s then it is the responsibility of the authority to give just, proper, adequate and reasonable effective opportunity to the persons against who the inquiry has been initiated by the Deputy Collector. Inquiry which is suggested under Section 65, it is not exparte inquiry but it requires to give opportunity to the persons who is the holder of the land in question. If there no provision is made under the statute about inclusion of principles of natural justice even then the same has to be read impliedly and during the course of inquiry under the relevant provisions, principlesof natural justice should be followed in initiating such proceedings. "9. Not only that but even in respect to the report prepared by RTS Team vis-a-vis the observance of the principles of natural justice, it has been observed by this Court in the said decision at para 17, inter alia, as under: "17. . . . The land holder in absence of report of the RTS team and the material and documents on which the reliance was placed, and the Deputy collector wanted to have answer or explanation of show cause notice from the land holder. Thus it is a clear violation of principles of natural justice because how the land holder can defend or give explanation of the show cause notice effectively in absence of the report of the RTS team along with material and documents which have been collected by the RTS team behind the back of land holder. Therefore, if any reply or explanation even if it is tendered by the land holder, that cannot be considered to be an effective and reasonable opportunity has been given by the Deputy Collector. Therefore, if any reply or explanation even if it is tendered by the land holder, that cannot be considered to be an effective and reasonable opportunity has been given by the Deputy Collector. That one another important aspect which requires to be noted here is that after reasonable reply from the land holder, the Deputy collector had fixed the matter for hearing and calling the land holder to remain personally present in such inquiry and at that time merely right of representation has been given to the land holder but even at that occasion also, a copy of the report prepared by RTS team along with documents and material were not supplied to the land holder. Not only that but even during the course of inquiry, the Deputy Collector has not examined any persons either Talati cum mantri or Mamlatdar to prove the report and materials as well as the documents which were collected by the RTS team in inquiry. No right of cross examination has been given to the land holder and merely right of oral representation has been given to the land holder during the course of inquiry and therefore, the deputy Collector has decided the matter after relying the report which has been prepared by RTS team along with the material and document which were annexed with the report and considering the oral representation of the land holder come to the conclusion that Section 65 has been violated. Such procedure to my mind is totally contrary to the principles of natural justice inasmuch as the decision arrived by the Deputy Collector to deprive the persons of their respective lands in question which are livelihood of the land holder, therefore, the right to life and right to livelihood are required to be protected before passing any adverse orders and reasonable, proper effective opportunity is minimum barest requirements of principles of natural justice. The said procedure apparently unreasonableand contrary to the safeguard which has been provided under the principles of natural justice. . . . " if the observations made by this Court referred to herein above are considered, it is apparent that the competent authority i. e. Deputy Collector has not examined the matter as to whether there was any reason beyond the control of the holder of the land for not utilising the land for agricultural operations fully. . . . " if the observations made by this Court referred to herein above are considered, it is apparent that the competent authority i. e. Deputy Collector has not examined the matter as to whether there was any reason beyond the control of the holder of the land for not utilising the land for agricultural operations fully. Further on the aspects of cultivation of the land through tribals and not by members, the issue is also covered by the decision of this Court dated 30th November, 2004 passd in Special Civil Application No. 17988 of 2003 wherein at paragraph no. 8 it has been observed as under:- "8. In this regard, merely because the land is given for agricultural purpose to an Ex-army man as back as in the year 1966, it cannot be said that it is obligatory on the part of the concerned holder of the land to himself cultivate and he cannot engage any agricultural labourer or he cannot take assistance of anybody for the purpose of agricultural cultivation. If the said interpretation is made to the condition for cultivation, it would result into absurd situation. With the development of science it is always open to agriculturist to cultivate the land either by himself or through the person who are experts in cultivation and while doing so he can take assistance of the other agency also. In any event, the engagement of agricultural labourer was not prohibited even during the earlier days when the agriculturist had to undertake the activity of agriculture. With the advancement of science it is always not necessary for the agriculturist to cultivate through manual labour or bullock cart but he can get it cultivated through tractor or other scientific instrument, either himself or through labourers or through any agency which can be said as expert in undertaking such agricultural operations with a view to exploit maximum crop/income by the utilisation of the land for agricultural purpose. Under such circumstances, the aspect which may be required to be considered is as to whether such has been done at the instance of holder of the land and whether the holder of land can be said as principally responsible and whether holder of the land is finally to get the income or not. Under such circumstances, the aspect which may be required to be considered is as to whether such has been done at the instance of holder of the land and whether the holder of land can be said as principally responsible and whether holder of the land is finally to get the income or not. If the answer of the aforesaid is in affirmation, it cannot be said that the holder of the land has not cultivated or used the land for agriculture for himself or family members. In any case, there cannot be exhaustive list for the method or manner of such agricultural activities and thereby to earn more or to get maximum yield from the agricultural land and any attempt or activity in this regard by holder of the land cannot be said as breach of condition warranting forfeiture of land. I find it proper to leave the matter at that stage, without further examining the said aspects, more particularly because it has come on record by way of affidavit that the person who was engaged by the petitioner was engaged as agricultural labourer for cultivating the agricultural land. Therefore, I find that the conclusion arrived at by the District Collector that the land is not utilised for agricultural purpose by the petitioner is without properly considering the relevant aspects and there is jurisdictional error committed. The aforesaid is coupled with the aspect that the agricultural cultivation through other person had transpired in the statement of Talati-cum-Mantri, for which no opportunity of hearing has been given to the petitioner before taking final decision of forfeiting the land in question. " the aforesaid view of this Court deserves to be considered and the matter deserves to be reconsidered accordingly and the said aspect is not at all considered, the matter deserves to be remanded back to the authority for examining the matter in light of the observations made herein above. Even before the Collector as well as state Government the said aspects are not examined. Under the circumstances, in view of the observations made by this Court referred to herein above, the order passed by the Deputy Collector and its confirmation by the collector and the State Government cannot sustain in the eye of law and the matter deserves to be remanded back to the authority for reconsidering the issue in the light of the observations made herein above. ( 5 ) IN the result, the impugned orders passed by the deputy Collector, confirmed by the Collector in Appeal and further confirmed by the State Government in revision for resumption of the land on the ground of breach of condition are quashed and set aside. It is further directed that it would be open to the Deputy Collector to reconsider the matter in light of the observations made herein above and to decide the matter afresh after giving opportunity of hearing to the petitioner and to pass appropriate orders in accordance with law. Petition is allowed to the aforesaid extent. Considering the facts and circumstances, there shall be no order as to costs. Rule is made absolute. .