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2014 DIGILAW 381 (GUJ)

ISHWARBHAI RAVJIBHAI v. STATE OF GUJARAT

2014-03-13

AKIL KURESHI, SONIA GOKANI

body2014
ORAL JUDGMENT AKIL KURESHI 1. The appellant original petitioner has challenged the judgement of the learned Single Judge dated 28.10.2010 rendered in Special Civil Application No.14292/2010. 2. Brief facts are as under : 2.1. The petitioner is an agriculturist and owned the agricultural land bearing survey no.32 paiki admeasuring 1 acre. Adjacent to his land, Government Kharaba land of survey no.35/1 paiki of Botad was situated. He applied for allotment of 1 acre and 38 gunthas of adjacent land of Government Kharaba to the Deputy Collector on 9.12.1996. After obtaining the report from the Mamlatdar, the Deputy Collector by his order dated 17.2.1997 granted the land to the petitioner on payment of Rs.1,97,225/-. He observed that the land is a fragment, is situated outside the city limits of Botad Nagarpalika. There is no Government reservation on the land. It is not possible to independently dispose of the land. The petitioner owned 1 acre of agricultural land adjacent to the Government land and does not have any other land in his name. 2.2. The order of the Deputy Collector was taken in revision by the Collector. After putting the petitioner to notice, he reversed the order of the Deputy Collector by his order dated 22.11.2001. Before the Collector, the petitioner raised several contentions namely, that the land was already allotted after due inquiry; that the petitioner has deposited the amount with the Government, taken possession of the land and also invested substantial amount for improvement of land. The order is otherwise also not required to be taken in revision. 2.3. The Collector however, held and observed that from the revenue records, it does not appear that the land was a fragment. The Mamlatdar, Botad in his report has not indicated that it is not possible to dispose of the land independently or whether the land is suitable for agriculture. No supporting documents have also been produced. Though there were other persons demanding the same land and the land could have been disposed of independently also, without verifying such facts, the order was passed by the Deputy Collector. It was further observed that survey no.35/1 paiki admeasured 44 acres and 39 gunthas. There was no indication that 1 acre and 38 gunthas of land in question was a fragment. The land was situated within 5 kms of an urban area. It was further observed that survey no.35/1 paiki admeasured 44 acres and 39 gunthas. There was no indication that 1 acre and 38 gunthas of land in question was a fragment. The land was situated within 5 kms of an urban area. Such land therefore, could not have been disposed of by the Deputy Collector since he had no power to do so. The petitioner had received his 1 acre of agricultural land by way of family partition from his father, solely, with a view to further acquire the Government land claiming his land to be adjacent to the Government land. On such premises, the Collector reversed the order of the Deputy Collector. 2.4. The petitioner thereupon approached the Secretary in the revision petition under section 211 of the Bombay Land Revenue Code. The Secretary dismissed the revision petition and confirmed the order of the Collector. It recorded that the petitioner failed to produce documents to show that the land was outside 5 kms. of Botad city limits. A portion of 44 acres and 39 gunthas of land of survey no.35/a paiki was alloted by way of grant which was not permissible. 2.5. Against such order, the petitioner approached the learned Single Judge who dismissed the petition on the following grounds : “3.0 As a result of hearing and perusal of the documents on record it is found from the map that the land situated in Survey No. 35/1 at Botad was consolidated. It is not mentioned in the report of the Mamlatdar, Botad that the land in question was in fragmentation or it is not disposable by individual or whether it was agricultural or not. There is no inquiry with regard to the land which was lying fallow adjacent to the land in question. Hence, though the land which was lying fallow was liable for disposal by individual, no actions were taken. From the map it is found that on Survey No. 35/1, there is land admeasuring 44 Acre 39 Gunthas. The land granted to the petitioners and other agriculturists was granted without considering the resolution passed by the Government. It is further found that the land in question was in the urban area. Hence, Prant Officer has no right for disposal of the land. The land is situated within the urban area. Therefore, it will not be appropriate to carry out agricultural activity in the urban area. It is further found that the land in question was in the urban area. Hence, Prant Officer has no right for disposal of the land. The land is situated within the urban area. Therefore, it will not be appropriate to carry out agricultural activity in the urban area. The view taken by the authority is just and proper. No interference is called for. The petition stands dismissed.” 3. Having heard learned counsel for the appellant and learned AGP for the respondents, we see no reason to interfere. The Collector, the revisional authority and the learned Single Judge have concurrently held that without proper inquiries and verification of significant details, the land was granted by the Deputy Collector to the petitioner. The land was situated within 5 kms of urban area. As per the Collector, therefore, the Deputy Collector had no power to grant such a land. As noted by the Secretary, the petitioner failed to establish that the land was situated beyond the limit of 5 kms. 4. The authorities have also noted that survey no.35/1/paiki of Government Kharaba land admeasured 44 acres and 39 gunthas. There is no evidence that land in question admeasuring 1 acre and 38 gunthas was a fragment. Significantly, the Collector also recorded that there were other claimants to the land. The Deputy Collector without examining their claims, alloted the land to the petitioner. In our opinion, this would amount to preferential allotment without considering other rival claims. The collector also noted that no inquires were made to verify whether the land was suitable for agricultural purpose. When this basic inquiries were not conducted, granting of the land to the petitioner was rightly interfered by the Collector. Further appellate orders of the Government and the learned Single Judge, therefore, are perfectly in order. 5. Though before the Collector it was argued that the petitioner had made considerable investment for improvement of the land, neither the extent of such investment nor supporting documents were produced before the Collector or before any other authority. We may also note that for the order passed by the Deputy Collector in February 1997, the Collector had already taken suo moto cognizance and issued notice the petitioner by August 1997. We may also note that for the order passed by the Deputy Collector in February 1997, the Collector had already taken suo moto cognizance and issued notice the petitioner by August 1997. Thus, the petitioner was put to notice that the order of the Deputy Collector granting the land was under revision before the Collector within barely six months of the date of order granting the land. The petitioner’s case therefore, that in the meantime the petitioner took great trouble and made huge investments for improvement of land, cannot be accepted. 6. Counsel for the petitioner vehemently contended that under similar circumstances, this Court had remanded the proceedings to the Deputy Collector for fresh inquiry and decision. Our attention in this respect was drawn to the order of the Division Bench of this Court dated 23.09.2008 passed in Letters Patent Appeal No. 954/2008 and connected appeals. We have perused not only such order of the Division Bench but also of the learned Single Judge out of which Letters Patent Appeal arose. We are of the opinion that such decision was rendered in entirely different factual background. It was a case where out of one parcel of land, allotments were made to several persons of a particular village. Collector cancelled such allotments. Revision petitions came to be filed before the Secretary. In some cases, the Secretary dismissed the revision petitions and in some cases, he remanded the proceedings to the Collector for fresh consideration. It was in this background, the learned Single Judge remanded the proceedings to the Collector, in turn, the Division Bench placed the proceedings back to the Deputy Collector. The entire background was thus different. 7. In the present case, we are concerned with a single grant of land by the Deputy Collector which was, for valid reasons recorded by the Collector, cancelled. 8. In the result, the Letters Patent Appeal is therefore, dismissed.