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2012 DIGILAW 490 (GUJ)

Dhabawala Hasanbhai Kasambhai v. State of Gujarat

2012-07-02

P.B.MAJMUDAR, PARESH UPADHYAY

body2012
Judgment P.B. Majmudar, J.—Both these appeals are directed against the order of learned Single Judge dated 4.11.2003 passed in Special Civil Application No. 15551 of 2003. By the impugned order, learned Single Judge dismissed the writ petition and confirmed the order passed by Deputy Collector, Chhota Udepur dated 15.9.2003. 2. As regards three parcels of land, the proceedings were initiated against the concerned land owners under the provisions of Section 65 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short, ‘the Tenancy Act’). Since the owner of the concerned land had not carried out agricultural activity though it is an agricultural land, a show cause notice was issued by the Deputy Collector against the appellants as to why the management should not be assumed by the State Government under the provisions of Section 65 of the Tenancy Act for the period of 10 years. After hearing the concerned land owner, the Deputy Collector in Tenancy Case No. 1 of 2003 passed an order under Section 65 of the Tenancy Act by which the land in question is ordered to be taken away by the State Government for the purpose of its management for the period of 10 years. 3. The Deputy Collector came to the conclusion that since the land in question is not utilized for the agricultural activity for last more than 5 years and it is kept as waste land except growing the grass, there is no agricultural activity going on. The order under Section 65 of the Tenancy Act was passed by which the management of the land in question is taken away by the State Government for the period of 10 years. The said order of the Deputy Collector was challenged by the petitioners by way of aforesaid special civil application which we have referred to herein above. The learned Single Judge dismissed the said petition against which, these Letters Patent Appeals have been filed. The same are admitted long back and which are taken up for final hearing today. 4. Learned counsel Mr. Patel argued that even though there is only one writ petition being Special Civil Application No. 15551 of 2003 and since there are 3 parcels of land and there are 3 different owners, these 2 LPAs are filed, one of which is filed by two occupants and another is filed by another occupant. It is argued by Mr. Patel argued that even though there is only one writ petition being Special Civil Application No. 15551 of 2003 and since there are 3 parcels of land and there are 3 different owners, these 2 LPAs are filed, one of which is filed by two occupants and another is filed by another occupant. It is argued by Mr. Patel that the appellants, in the instant case, led evidence before the Deputy Collector that the land in question is a very small piece of land surrounded by residential area. He also argued that as regards one of the lands, it is near railway crossing and since it is on main road, no agricultural activity is possible in-spite of best efforts. It is submitted by Mr. Patel that the Deputy Collector has not considered evidence at all in his order and has passed mechanical order. It is submitted by learned advocate Mr. Patel that learned Single Judge has not properly appreciated the aspect as to whether the appellants have led appropriate evidence to show that agricultural operation was not possible looking to the situation of the land. It is further submitted that so far as the order of the Deputy Collector under Section 65 of the Tenancy Act is concerned, as per the decision of the Division Bench of this Court in case of Abhesinh K.Solanki and Anr. vs. The State of Gujarat and Anr. reported in 1997 (2) GLH 780 , there is no other alternative remedy except to approach this Court by way of Special Civil Application. It is submitted by Mr. Patel that, in any case, now the provision of Section 65 is already deleted from the statute by the Legislation being Gujarat Act No. 10 of 2009 dated 24th July, 2009. In view of the same, even otherwise, there is no machinery available for the State to manage the land for 10 years after taking management. The State is required to maintain account, cultivate the land and after 10 years, land is required to be surrendered back to the concerned holder. It is submitted that in view of the same, the order passed by the Deputy Collector cannot be now enforced. 5. Learned AGP Ms. The State is required to maintain account, cultivate the land and after 10 years, land is required to be surrendered back to the concerned holder. It is submitted that in view of the same, the order passed by the Deputy Collector cannot be now enforced. 5. Learned AGP Ms. Calla, on the other hand, submits that since the concerned appellants failed to cultivate the land, and kept the land as it is for more than 5 years, the Deputy Collector was justified in invoking Section 65 of the Tenancy Act. It is submitted by her that the Deputy Collector has found that the petitioners have not taken any steps for converting this land into N.A. land and under the circumstances, no fault can be found with the order of the Deputy Collector. She, however, conceded the fact that subsequently in the year 2009, Section 65 is deleted from the statute. 6. We have heard both the learned advocates and we have gone through the petition and the annexures forming part of the petition which is also part of the Letters Patent proceedings. At this stage, reference is required to be made to Section 65 of the Tenancy Act, which reads as under: “If it appears to the State Government that for any two consecutive years, any land has remained uncultivated or the full and efficient use of the land has not been made for the purpose of agriculture, through the default of the holder or any other cause whatsoever not beyond his control the State Government may, after making such inquiry as it thinks fit, declare that the management of such land shall be assumed. The declaration so made shall be conclusive. The declaration so made shall be conclusive. {(1A) The assumption of management of land under Sub-section (1) on the ground that the full and efficient use of the land has not been made for the purpose of agriculture shall be for such period as the State Government may, from time to time fix so, however, that such period shall not exceed ten years in the aggregate} (2) On the assumption of the management such land shall vest in the State Government during the continuance of the management and the provisions of Chapter IV shall mutatis mutandis apply to the said land: {Provided that the manager may in suitable cases give such land on lease at rent even equal to the amount of its assessment: Provided further that, if the management of the land has been assumed under sub section (1)) on account of the default of the tenant, such tenant shall cease to have any right to privilege under Chapter II or III, as the case may be, in respect of such land, with effect from the date on which such management has been assumed.” 7. It is required to be noted that as per the said provision, land can be assumed by State Government for the management for 10 years in case occupants without any reasonable ground fails to cultivate the land. In the instant case, the appellants have given statement to the Deputy Collector and pointed out that looking to the situation of the land, it is not possible to carry out agricultural activity in a small piece of land. In the statement, which is made before the Deputy Collector, it is stated that the land in question is situated just behind the Laxmi Society which is the housing area. It is submitted by the land owner that there is no agricultural land nearby his land. On going through the order of the Deputy Collector, we find that the Deputy Collector has not considered as to whether the say of the appellants that agricultural activities is not possible is correct or not or whether the say of the appellants is required to be accepted or not. On going through the order of the Deputy Collector, we find that the Deputy Collector has not considered as to whether the say of the appellants that agricultural activities is not possible is correct or not or whether the say of the appellants is required to be accepted or not. The Deputy Collector in his order observed that the appellants herein have not taken any proceedings for converting the land into N.A. The said statement is factually incorrect because the appellants had applied to the concerned authority for converting the agricultural land into N.A. but the said authority on 14.4.1997 rejected the same. It is also required to be noted that since July 2009, Section 65 has already been deleted from the statute book. As per the said provision of Section 65, the Government, after taking over management, is required to manage the land for a period of 10 years and to cultivate the land. Now, in view of deletion of the said section, it is argued by Mr. Patel that there is no machinery in existence to carry out the said activities and to manage the land etc. 8. Considering the aforesaid aspect and considering the fact that Deputy Collector has not considered the say of the appellants, in our view, the order of the Deputy Collector is required to be set aside as he has not discussed anything as to whether the say of the appellants is genuine or not regarding location of the land, area, and whether it is possible to carry agricultural activity or not. Even before passing the order, the appellants had already applied for N.A. permission in the year 1997. Since the aforesaid aspect has not been considered by the Deputy Collector, and in addition, considering the fact that Section 65 itself is not now in statute book, the order of the Deputy Collector and order of the learned Single Judge are required to be set aside. 9. Accordingly, both these appeals are allowed. The impugned order of the Deputy Collector as well as the order of the learned Single Judge are quashed and set aside. The proceedings initiated against the appellants under Section 65 of the Tenancy Act stand quashed and set aside. 10. Both these appeals are accordingly allowed with no order as to costs.