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2015 DIGILAW 352 (GUJ)

State of Gujarat Secretary v. Hamirsinh Mohansinh

2015-03-30

R.M.CHHAYA

body2015
JUDGMENT : R.M. Chhaya, J. 1. The State of Gujarat and other authorities, by way of this petition under Articles 226 and 227 of the Constitution of India, have challenged the order dated 7.4.2010 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN/BS/24/2009, whereby the Tribunal rejected the said Revision Application filed by the petitioners, confirming the orders passed by the authorities below. 2. The facts which emerge from the record of the petition are as under:- 2.1 It appears from the record that the Mamlatdar & ALT initiated proceedings under the Land Ceiling Act which came to be registered as Ceiling Case No. 122 of 1981 for the lands situated at Village Vankaneda, Taluka Palsana, District Surat. The said proceedings culminated into an order dated 23.2.1982 passed by the Mamlatdar & ALT (Ceiling), Palasana, whereby the lands bearing block Nos. 89, 153, 159, 159/1 and 85 were declared to be excess land bearing 69.03 sq. mtrs. 2.2 The said order dated 23.2.1982 passed by the Mamlatdar & ALT (Ceiling), Palasana came to be challenged before the Deputy Collector, Surat which was registered as Ceiling Appeal Case No. 1 of 2004. The said appeal was partly allowed by the Deputy Collector vide order dated 30.11.2004, whereby the order dated 23.2.1982 was quashed and set aside and the proceedings were remanded back to the Mamlatdar & ALT. 2.3 The said order dated 30.11.2004 passed by the Deputy Collector was acted upon and on remand, vide order dated 2.4.2005, the Additional Mamlatdar & ALT (Ceiling), Taluka Choryasi, District Surat came to the conclusion that the provisions of Agricultural Land Ceiling Act would not apply to the lands in question and withdrew the notice given to the private respondents. 2.4 It appears that the private respondent Nos. 1 to 5 herein preferred an appeal which came to be registered as Ceiling Appeal Case No. 4 of 2005 before the Deputy Collector, Choryasi Prant, Surat. The said appeal came to be dismissed vide order dated 31.1.2008. 2.5 The said order dated 31.1.2008 passed by the Deputy Collector, Choryasi Prant, Surat came to be challenged by way of filing a Revision Application by the State, which came to be registered as Revision Application No. TEN/BS/24/2009. The Gujarat Revenue Tribunal, Ahmedabad by the impugned order dated 7.4.2010 was pleased to dismiss the said Revision Application. 2.5 The said order dated 31.1.2008 passed by the Deputy Collector, Choryasi Prant, Surat came to be challenged by way of filing a Revision Application by the State, which came to be registered as Revision Application No. TEN/BS/24/2009. The Gujarat Revenue Tribunal, Ahmedabad by the impugned order dated 7.4.2010 was pleased to dismiss the said Revision Application. 2.6 Being aggrieved by the said order dated 7.4.2010 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN/BS/24/2009, the State Government has filed the present petition before this Court on 7.5.2013. 3. Mr. Manan Mehta, learned AGP for the petitioners has taken this Court through the aforesaid factual background as well as the impugned order. It was contended that though there is a delay of more than four years in preferring this petition, the delay deserves to be condoned as stated in Paragraph 7 of the petition. It was further contended that the Gujarat Revenue Tribunal has not considered the available record and has in fact also not considered the fact that the Deputy Collector entertained the appeal after a period of 23 years and thus, contended that it is wrongly held that the land belongs to the public at large and therefore, the same cannot be considered to be excess vacant land. It is submitted that such a finding arrived at by the authorities below deserves to be quashed and set aside. 4. Per contra, Mr. J.M. Patel, learned advocate for the respondents has relied upon the affidavit in reply filed by respondent Nos. 1 to 5 and has contended that the petition deserves to be dismissed only on the ground of delay and laches. It is submitted that the contention that the appeal was preferred by the private respondents before the Deputy Collector after a lapse of 23 years is dealt with by the Deputy Collector itself in his order. It is further contended that the Mamlatdar passed an order on 23.2.1982 without issuing a notice and in fact the order came to be passed against the dead person and considering these facts, the Deputy Collector has condoned the delay. It is further contended that the Mamlatdar passed an order on 23.2.1982 without issuing a notice and in fact the order came to be passed against the dead person and considering these facts, the Deputy Collector has condoned the delay. It is further submitted that the land was never allotted to any individual person, but it was in the name of 4 to 5 persons who are administrators of the said land as it is Gauchar land which came to be donated and therefore, it is not a holding of any individual person. It is therefore contended that there is no error apparent on the face of the record which warrants interference of this Court in its extraordinary jurisdiction under Article 226 and/or 227 of the Constitution of India. It is further submitted that no explanation except the vague explanation has been given for preferring this petition after a lapse of about 3 years. Mr. Patel relying upon the averments made in Paragraph 23 of the affidavit in reply filed by the respondents, contended that no cause much less any sufficient cause is stated by the petitioner to prefer this petition after a long lapse of nearly 3 years. 5. No other or further submissions are made by the learned advocates appearing for the parties. 6. The aforesaid factual position is not disputed. It is an admitted position that the Mamlatdar & ALT (Ceiling), Palasana did pass an order declaring 70 Acre 13 Gunthas of land as surplus under the Act by the order dated 23.2.1982. However, it also emerges from the record of this petition as well as the order passed in appeal by the Deputy Collector dated 30.11.2004 that the order was passed against the dead persons. It has come on record by way of affidavit in reply, which is not controverted that Dalpatbhai Madhubhai died prior to 1975, Prabhatbhai Merjibhai died on 19.5.1975 and Ravjibhai Virabhai died prior to 1970 who were Vahivatkartas of the land in question. Considering the fact that the inquiry was not properly conducted by the Mamlatdar & ALT, the Deputy Collector was pleased to remand the proceedings. On perusal of the aforesaid order passed by the Deputy Collector dated 30.11.2004, the Deputy Collector has specifically observed that proper inquiry is not made and considering the holding of dead person, the land has been declared to be excess land, as stated hereinabove. On perusal of the aforesaid order passed by the Deputy Collector dated 30.11.2004, the Deputy Collector has specifically observed that proper inquiry is not made and considering the holding of dead person, the land has been declared to be excess land, as stated hereinabove. On remand, the Additional Mamlatdar & ALT (Ceiling), Taluka Choryasi, District Surat has also taken into consideration the names of the persons who appear as Khatedar, which is based on the original record. On comparing the names which are mentioned in column No. 5 of the order passed by the Additional Mamlatdar & ALT (Ceiling), Taluka Choryasi, District Surat, it appears and as asserted by Mr. Patel that the order-in-origin dated 23.2.1982 passed by the Mamlatdar & ALT (Ceiling), Palasana was passed against the dead persons. On perusal of the order dated 2.4.2005 passed by the Additional Mamlatdar & ALT (Ceiling), Taluka Choryasi, District Surat, it appears that on the basis of the evidence on record and the original record, the Additional Mamlatdar & ALT (Ceiling), Taluka Choryasi, District Surat has come to the conclusion that the land in question is used for public purpose for grazing and that the provisions of the Act are not applicable. The Deputy Collector as well as the Tribunal has considered this aspect which is based on the original record. In fact, the record indicates that the order of remand was not challenged by the State Government, but it was challenged by way of an appeal before the Deputy Collector by the private respondents herein. 7. As far as the aspect of delay is concerned, the explanation rendered by the petitioners in Paragraph 7 is nothing but excuse put forward on the ground of some administrative exigencies and pre-occupation of the officers in election. It is an admitted position that the impugned order is dated 7.4.2010 and the present petition was presented before this Court on 7.5.2013. Therefore, there is a delay of more than 3 years. Considering the judgment of the Apex Court in the case of Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, reported in (2012) 5 SCC 157 and in the case of Postmaster General & Ors. Vs. Living Media India Limited & Anr., reported in (2012) 3 SCC 563 , the petition is hopelessly delayed. 8. Considering the judgment of the Apex Court in the case of Maniben Devraj Shah Vs. Municipal Corporation of Brihan Mumbai, reported in (2012) 5 SCC 157 and in the case of Postmaster General & Ors. Vs. Living Media India Limited & Anr., reported in (2012) 3 SCC 563 , the petition is hopelessly delayed. 8. In light of the aforesaid therefore, this Court finds that there is no error much less any error apparent on the face of the record, which warrants interference by this Court in its extraordinary jurisdiction under Article 226 and/or 227 of the Constitution of India and the petition also deserves to be dismissed on the ground of delay. 9. It is, however, clarified that the land in question is to be used for the said public purpose of grazing only. 10. The petition therefore fails both on merits and delay and the same is dismissed. Notice discharged. Ad-interim relief granted earlier stands vacated. There shall be no order as to costs. Petition dismissed.