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2015 DIGILAW 854 (GUJ)

Haribhai Khimabhai v. State of Gujarat

2015-09-02

C.L.SONI

body2015
JUDGMENT : C.L. Soni, J. 1. The matter is taken up for final hearing and disposal with the consent of learned Advocate for the petitioner and learned Assistant Government Pleader for respondent Nos. 1 to 4. Hence, Rule. Learned Assistant Government Pleader Mr. Ronak Raval waives service of Rule for respondent Nos. 1 to 4. Respondent No. 5 being formal party, no Rule is required to respondent No. 5. By the present petition filed under Arts. 226/227 of the Constitution of India, the petitioner has made following prayers in Para 16: "(A) A writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction may kindly be issued quashing and setting aside the impugned order dated 30-1-2015 at Annexure-G passed by the learned Secretary (Appeals), Revenue Department in Revision Application No. 31 of 2013 and order dated 8-6-2009 passed by the Collector, Bhavnagar in Appeal No. 52 of 2008-2009 and order dated 18-5-2008 passed by the Dy. Collector, Bhavnagar in Case No. 362 of 2002; (B) Pending admission, hearing and final disposal of this petition, an interim injunction may kindly be granted staying further operation, implementation and execution of the impugned order dated 30-1-2015 at Annexure-G passed by the learned Secretary (Appeals), Revenue Department in Revision Application No. 31 of 2013; (C) Your Lordships may be pleased to remand the matter to the State Government to decide afresh on merits and in accordance with the law after giving opportunity of being heard to the petitioner. (D)...." 2. From the facts stated in the petition, it appears that deceased Haribhai Khimabhai was granted the land bearing Survey No. 2/1 Paiki admeasuring 4 acres in village Velavadar (Bhal), Taluka and District Bhavnagar on permanent basis in the year 1971 for agricultural purpose. Since then, he had been in occupation and cultivating the land. However, in the year 2001-2002, when the petitioner, son of deceased Haribhai-original grantee, applied for removal of restrictions of new tenure, the Mamlatdar from the revenue record found that during the year 1984-1985 to 1993-1994, the land remained uncultivated for 3 years and reported to the Deputy Collector for initiation of inquiry for breach of the condition of grant. Upon such report of the Mamlatdar, the Deputy Collector initiated the proceedings for breach of the condition of grant by registering Case No. 362 of 2002. Upon such report of the Mamlatdar, the Deputy Collector initiated the proceedings for breach of the condition of grant by registering Case No. 362 of 2002. In such proceedings, the petitioner pointed out that on account of drought situation, since the land could not be cultivated, it could not be said that there was breach of the condition of grant. The Deputy Collector, however, passed order dated 18-5-2008 to vest the land to the State Government for breach of the condition of grant and to summarily evict the father of the petitioner. Such order of the Deputy Collector was challenged before the Collector by preferring Appeal No. 52 of 2008 by the petitioner, which came to be dismissed by the Collector and the order of the Deputy Collector was confirmed. It is against this order, the petitioner preferred revision application before the Secretary, being Revision Application No. 31 of 2013 under Sec. 211 of the Bombay Land Revenue Code. The Secretary by impugned order rejected the revision application of the petitioner on the ground of limitation as also on merits. 3. Learned Advocate Mr. Trilok Patel for the petitioner submitted that the Secretary has failed to appreciate that the petitioner, who is a farmer, was not responsible for delay in filing the revision application but had raised good grounds to entertain the revision application on merits. Mr. Patel submitted that the Secretary also committed serious error in rejecting the revision application on merits while not entertaining the revision application on delay. Mr. Patel submitted that as observed by the Deputy Collector and the Collector in their orders, the petitioner continued to cultivate the land except 3 years of drought and at no point of time, any action of breach of the condition was taken prior to petitioner making application in the year 2001 for permission to convert the land into old tenure. Mr. Patel submitted that when there was drought situation, because of which the father of the petitioner could not cultivate the land for 3 years of drought, it could not be said that the father of the petitioner had committed any breach of the condition, and therefore, the order of cancellation of grant worked harsh upon the petitioner. Mr. Mr. Patel submitted that when there was drought situation, because of which the father of the petitioner could not cultivate the land for 3 years of drought, it could not be said that the father of the petitioner had committed any breach of the condition, and therefore, the order of cancellation of grant worked harsh upon the petitioner. Mr. Patel submitted that the Deputy Collector and Collector have observed in their orders that since the petitioner has continuously cultivated the land right from 1994 till the year 2008, the petitioner could apply for re-grant of the land. Mr. Patel submitted that in such facts situation, the Secretary ought not to have rejected the revision application of the petitioner. Mr. Patel submitted that in any case, breach of the condition alleged was during the period of three years between 1985 to 1993, whereas action for breach of the condition was initiated in the year 2008, which was after a long unreasonable delay and on such grounds also, the impugned orders are required to be quashed and set aside. 4. Learned Assistant Government Pleader Mr. Raval on the other hand submitted that there is no dispute about the fact that the father of the petitioner was found not to have cultivated the land at least for 3 years during the period from 1984-1985 to 1993-1994, and therefore, it was a clear case of breach of the condition of grant. Mr. Raval submitted that subsequent cultivation of the land by the father of the petitioner and the petitioner would not condone breach already committed. Mr. Raval submitted that delay in initiation of action for breach of the condition would not regularize breach already committed by the father of the petitioner. Mr. Raval submitted that in any case, as observed by the authorities below, it is always open for the petitioner to apply for regrant of the land. 5. Having heard learned Advocates for the parties, it appears that the land in question was granted to deceased Haribhai Khimabhai father of the petitioner in the year 1971 for cultivation as new tenure land, however for 3 years, between 1984-1985 to 1993-1994, the land was not found to be cultivated. 5. Having heard learned Advocates for the parties, it appears that the land in question was granted to deceased Haribhai Khimabhai father of the petitioner in the year 1971 for cultivation as new tenure land, however for 3 years, between 1984-1985 to 1993-1994, the land was not found to be cultivated. It is however not the case that thereafter, at no point of time, till the action for breach of condition was initiated by the Deputy Collector in the year 2002, the land in question was not cultivated. In fact, what is observed by the Collector in his order is that from 1994-1995 to 2007-2008, the land was found to have been continuously cultivated by the petitioner. It is required to note that for alleged breach of the condition of not cultivating the land for 3 years between 1984-1985 to 1993-1994, the action was initiated after the petitioner applied for removing the restrictions placed on the land in the year 2002. It was at that stage while processing the application of the petitioner, the Mamlatdar found that for above-said 3 years, the land was not cultivated. 6. The reasons provided by the petitioner for not cultivating the land for said period of 3 years was that in the area where the land was situated, drought situation was prevailing. Even if such ground was not acceptable, except the above-said period of 3 years, the father of the petitioner and then the petitioner has been continuously cultivating the land right from 1971 onwards. In view of such facts situation, the Deputy Collector ought not have initiated action after long period of about 7 years for breach of the condition of grant. From perusal of the impugned order, it does not appear to be a case that the father of the petitioner or the petitioner had intentionally committed breach of the condition of grant. Such facts situation ought to have been appreciated by the Secretary while deciding the revision application of the petitioner. The Secretary, however, has not entertained the revision application on the ground of delay and merits both. The Court finds that the petitioner has tried to explain the delay in late approaching the Secretary by stating that he was made aware about the order of the Collector on 22-7-2013, and thereafter, he asked for some copies of the revenue records. The Secretary, however, has not entertained the revision application on the ground of delay and merits both. The Court finds that the petitioner has tried to explain the delay in late approaching the Secretary by stating that he was made aware about the order of the Collector on 22-7-2013, and thereafter, he asked for some copies of the revenue records. Such explanation from the petitioner whose father was granted the land for cultivation should have been accepted by the Secretary. This Court since finds that in the facts of the case, there was no justification for initiation of the action for breach of the condition of grant, the delay in approaching the Secretary, especially when the explanation for such delay was provided, should not have come in the way of the petitioner. The Secretary thus failed to exercise the jurisdiction vested with him. The petition is therefore, required to be allowed. It is accordingly allowed. Impugned orders dated 18-5-2008 passed by the Deputy Collector in Case No. 362 of 2002, dated 8-6-2009 passed by the Collector, Bhavnagar in Appeal No. 52 of 2008-2009 and dated 31-1-2015 passed by the Secretary in Revision Application No. 31 of 2013 are quashed and set aside. If the land is vested with the State Government on the basis of the impugned orders, it shall be restored to the petitioner as per the original grant. Rule is made absolute to the aforesaid extent. Direct Service is permitted. Order accordingly.