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2015 DIGILAW 499 (GUJ)

KAMUBEN NATHUBHAI KATARA v. STATE OF GUJARAT

2015-04-28

A.G.URAIZEE, K.S.JHAVERI

body2015
JUDGMENT : K.S. JHAVERI, J. 1. By way of this appeal, the appellant has challenged the order passed by the learned Single Judge in Special Civil Application No. 19523 of 2007 on 6/8/2007, whereby the learned Single Judge has dismissed the petition with costs of Rs. 2500/on the ground of suppression of material facts. 2. Brief facts of the present appeal are that the petitioner was granted the land bearing Survey No. 39 of village Shamlaji admeasuring 8 acres by order dated 24/1/1992. Prior thereto, the State Government made full inquiry on 10.2.1988 and obtained reports and Collector. On 15.2.1989, the Government passed a Resolution giving benefit of granting land for maintenance for those families which did not have sufficient means to maintain themselves in the nature of maintenance grant. As stated above, on 24.1.1992, the appellant was given grant of the land bearing survey No. 39 of village Shamlaji admeasuring about 8 Acres by order of grant passed by the Collector, Himatnagar. The Collector had given such a grant after fully considering all the aspects of the matter and had specifically provided in the order that the said land is given to the appellant for personal cultivation and only for agricultural purpose. It has been provided that if the appellant does not cultivate the land and if she commits breach of any of the conditions of the grant then grant will be forfeited. 2.1 The said order of grant was challenged by the village people backed by Sarpanch. However, by order dated 15/6/1992 of the Deputy Secretary (Appeals) the challenge to order of grant failed. On 5/3/1992 sanad as been issued in favour of the appellant and possession was also handed over to the appellant. 2.2 The said order was challenged before this Court by way of Special Civil Application No. 4966 of 1992, which has been dismissed by this Court on 27/7/1992. The said matter was not carried further and it became final. In the meanwhile by order dated 25/2/1994 passed by the Deputy Secretary (Appeals) in Revision Application No. 32 of 1993 which was the revision against the order certifying entry in favour of the appellant being Entry No. 186, dismissed the revision application and therefore, the entry was certified. 2.3 Thereafter, Civil Suit was filed by the village people contending that they are in possession of the land in question and in that suit, application Exh. 2.3 Thereafter, Civil Suit was filed by the village people contending that they are in possession of the land in question and in that suit, application Exh. 5 was filed challenging the order of grant in favour of the appellant on the ground that the same has been obtained by suppression and prayer was made in application Exh. 5 not to disturb the possession and not to act in furtherance of the order of grant. The same was disposed of by the learned Civil Judge by holding that the grant is prima facie legal and that the plaintiffs in the said suit i.e. village people have not been able to prove their possession. Against the said order, Civil Misc. Appeal No. 22 of 1994 was filed by the village people, but the same was dismissed by the learned Assistant Judge. 2.4 The appellant also filed Regular Civil Suit No. 154 of 1992 against the village people with a prayer not to disturb her possession of the suit land and not to obstruct her from cultivating the land. In the said suit an order was passed below application Exh. 5 directing the defendants – village people not to disturb the possession of the appellant and the possession of the appellant was believed and the challenge to the order of grant was prima facie not believed. 2.5 The above order of the Trial Court was carried in Misc. Appeal before the learned Assistant Judge, Himmatnagar being Civil Misc. Appeal No. 23 of 1994, but the same was dismissed by the learned Assistant Judge and the order in favour of the appellant was confirmed. It is pertinent to point out that the Government had filed the written statement in Suit No. 47 of 1993 filed by the village people – Ramji Punjaji and others clearly admitting the order of grant and having handed over the possession to the appellant, which shows that now only by an afterthought, that the grant is being cancelled. Having failed in all the revenue proceedings and the order of the Civil Court being against them, the Public Interest Litigation being Special Civil Application No. 6800 of 1996 was filed by the Gram Panchayat at the instance of the Sarpanch who was always against the appellant challenging the order of grant in favour of the appellant. Having failed in all the revenue proceedings and the order of the Civil Court being against them, the Public Interest Litigation being Special Civil Application No. 6800 of 1996 was filed by the Gram Panchayat at the instance of the Sarpanch who was always against the appellant challenging the order of grant in favour of the appellant. The said PIL has been dismissed by this Court after referring to all the revenue records and the Civil Suits. However, with a view to harass the appellant, a false Criminal case was filed under Section 145 of the Code of Criminal Procedure which were challenged by the appellant by way of filing Criminal Revision Application No. 121 of 1993 and the said proceedings were quashed and set aside by this Court. Mr. Sanjanwala states that the appellant is being unnecessarily harassed by all the civil, criminal and revenue proceedings. However, on 27.11.2001, the Collector cancelled the grant without giving adequate opportunity to the appellant. 2.6 Thereafter, the appellant filed Special Civil Application No. 11257 of 2001 challenging the cancellation of the grant. By order dated 8/7/2005, this Court came to the conclusion that the appellant was not heard properly and therefore, had not disclosed the report of the Collector and therefore, the matter was remanded back allowing the appellant to raise all legal contentions including the contention that after a long gap of time, the order passed by the Government could not have been recalled or reopened. 2.7 The Collector had written a letter that grant should be cancelled, because there is a danger by some hooligans. However, it is clearly written by the Government that if some hooligans take the law into their hands and harass the schedule caste land and did not allow the implementation of the grant and if one such a ground, the grant is cancelled, then it may be taken as failure on the part of the District Officers and that full protection should be given to the appellant and to see that nobody obstructs her in doing cultivation and the Government may be informed immediately. In spite of this decision having already been taken by the Government, the grant is sought to be cancelled after a long time. After the order of remand, after lapse of two years, on 2.2.2007, the appellant was called upon to remain present with necessary documents. In spite of this decision having already been taken by the Government, the grant is sought to be cancelled after a long time. After the order of remand, after lapse of two years, on 2.2.2007, the appellant was called upon to remain present with necessary documents. The appellant gave detailed reply to the said report of the Collector as well as the letter dated 2.2.2007 clarifying the whole position. Without considering the objections raised by the appellant and without dealing with all the arguments advanced by the appellant, an order has been passed again cancelling the grant. Being aggrieved by the said order, the appellant preferred Special Civil Application No. 19523 of 2007 which has been dismissed by the learned Single Judge by order dated 6/8/2007. Hence, this appeal. 3. Learned Senior Advocate Mr. Sanjanwala appearing for the appellant contended that the learned Single Judge has committed an error in dismissing the petition only on the ground of suppression of facts without going into the merits of the matter. It is the case of the department that two facts have been suppressed that the husband of the appellant was a Government servant and the appellant was holding land at village Odh, which is 8 kms. away from the suit land. 4. He has further contended that the full-fledged inquiry was made by the Government before the grant was made. Even thereafter, reports were duly obtained from Mamlatdar, Circle Officer as well as the Collector before the grant was given. Even in the detailed report, it is clearly pointed out that the appellant has not committed any breach of any of the terms of the grant. Even if the matter is considered on merits, the appellant has not committed any breach of any of the conditions of the grant and it is not the case even of the department that there is breach of any of the conditions of grant. The order of grant clearly says that only for the breach of conditions of the grant, the grant can be cancelled. 5. He contended that the appellant was issued Sanad for the land in question and the possession was also handed over to the appellant. Therefore, once Sanad is given, it is a document of title, the powers under Section 211 of the Bombay Land Revenue Code cannot be exercised. 5. He contended that the appellant was issued Sanad for the land in question and the possession was also handed over to the appellant. Therefore, once Sanad is given, it is a document of title, the powers under Section 211 of the Bombay Land Revenue Code cannot be exercised. In support of said contention he has relied upon 1965 (6) GLR 34 in the case of Patel Raghav Natha vs. G.F. Mankodi, Commissioner, Rajkot Division and Ors. 6. Mr Sanjanwala, learned Senior Counsel next contended that the village people who were unauthorizedly cultivating the land have unnecessarily drawn the appellant, who is an Adivasi lady into various litigations. Of course, in all the litigations, the appellant has succeeded. He has thus contended that the learned Single Judge has failed in not considering the case on merits which was completely in favour of the appellant and even the reply filed by the appellant before the Collector has not been considered. 7. Per contra, learned AGP Mr. Bharat Vyas has supported the order passed by the learned Single Judge and contended that the learned Single Judge has passed just and proper order. Therefore, interference of this Court is not required. 8. We have heard learned Senior Advocate Mr. R.S. Sanjanwala assisted by learned advocate Mr. Dilip Kanojiya and learned AGP Mr. Bharat Vyas at length and in great detail. We have also perused the and order passed by the learned Single Judge as well as the orders passed by the below authorities. 9. As per the case of the appellant, the land was granted in favour of the appellant under the scheme of the Government, which was introduced for the Schedule Tribe and Schedule Tribe people, who are not able to maintain their family. 10. Before proceeding with the matter, it will not be out of place to mention that on 11/12/1986, the applicant for allotment of land has made an application which reads as under: “From: Kamuben Nathabhai Katara, At and Post: Samdaji, Taluka: Bhiloda, District: Sabarkantha, Dated: 11-12-1986 To, The Collector, Sabarkantha, Himmatnagar. Subject: With regard to waste land bearing S. No. 39 paiky 8-00 A.G. situated at Samdaji. Respected Sir, With due respect it is humbly stated that I am residing at the above address in a joint family and is doing agriculture labour work. Subject: With regard to waste land bearing S. No. 39 paiky 8-00 A.G. situated at Samdaji. Respected Sir, With due respect it is humbly stated that I am residing at the above address in a joint family and is doing agriculture labour work. That my husband Nathubhai Sdubhai Katara has applied to you vide application dated 15-4-85 and had requested to allot the land bearing Survey No. 39 acres 8-00 gunthas which is a waste land as per the government norms and has further stated and shown his willingness for payment of the possession amount. That the said application is requested to be proposed and forwarded and the land demanded by the applicant is to be given to him. That there is no objection by giving such land. That as the applicant is landless and his father has a small portion of land there is no objection in granting the said land to the applicant, that such opinion has been given by the Executive Engineer, Himmatnagar and the Mamlatdar , Bhiloda and Deputy Collector, Himmatnagar. That it has been suggested that the applicant is to be given acres 8-00 gunthas of land as per demand and there is no objection with regard to the same. That paper with regard to said opinion has been forwarded to the government. That from the government the application with regard to the proposal of the land to my husband has been forwarded to you is rejected and hence my husband has not got the land demanded by him and hence I request you that if any objection pertains with regard to the allotment of the said land in the name of my husband, then the said proposal and papers is to be forwarded in my name as I a living in a joint family and I am landless and doing agricultural labour work. With an anticipation for immediate allotment of the said land to me.” 11. With an anticipation for immediate allotment of the said land to me.” 11. It appears that while making an application dated 11/12/1986 the appellant has resorted to suppress material facts, inasmuch as that (i) though she was having interest in the agricultural land belonging to her father, which was barely 8 km away from her matrimonial home, (ii) that her fatheri-n-law was having two acres and 28 gunthas of land, (iii) that her husband, Nathabhai Katara, was serving in the Police Department and that earlier vide application dated 15th April 1985 applied for the grant of subject land, but the same was turned down. Thereafter, the present application made the application dated 11.12.1986 purposefully suppressing the aforesaid facts. Not only that, she has made false averments that she was not holding any land and that she is not in a position to maintain her family. In our view, this is not the case where it can be said that the appellant was not able to maintain her family since her husband was working in the Government department from the year 1986. It is very difficult to digest that she was not in a position to maintain her family from the income of the husband. The object of the Government policy is to ameliorate the financial difficulties of the poor and needy people belonging to the downtrodden strata of the society by granting the land so as to sustain themselves and their family. In our opinion, the appellant cannot be said to be a person who is in dire need of the land to maintain herself and her family because, as already noted hereinabove, her husband was serving in the Police Department, her fatherinlaw was having two acres and 28 gunthas of land and she was also having interest in the agricultural land of her father. If the grant of the land in favour of the appellant is upheld, the same would frustrate the purpose of the Government policy and real needy persons and the poor people who are living in abject poverty would not get the land to maintain themselves. 12. Moreover, as the applicant has made false statement in the application dated 11/12/1986 that she was not holding any land, this is a case where prosecution under section 195 is required to be initiated against her for making such false statement against the appellant. 12. Moreover, as the applicant has made false statement in the application dated 11/12/1986 that she was not holding any land, this is a case where prosecution under section 195 is required to be initiated against her for making such false statement against the appellant. However, looking to the fact that the appellant is by now a senior citizen, we are restraining ourselves to pass such an order. 13. In that view of the matter, we are in complete agreement with the view taken by the learned Single Judge. 14. In the result, the appeal deserves to be dismissed. Therefore, the same stands dismissed. 15. Learned advocate for the appellant requests to extend the stay. Considering the facts and circumstances of the case, the stay is extended for a period of four weeks from today. Appeal dismissed.