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2016 DIGILAW 1095 (GUJ)

Mashru Ajubhai Rabari v. State of Gujarat

2016-06-14

R.M.CHHAYA

body2016
JUDGMENT : R.M. Chhaya, J. 1. By way of this petition under Article 226 of the Constitution of India, the petitioners have challenged the validity of the order dated 27.11.1999 passed by respondent No. 1 - State of Gujarat and also the communication dated 31.1.2000 and has further prayed for an appropriate writ, order or direction directing the authorities to pass the order of regularizing the land in question. 2. Following facts emerge from the record of the petition:- That, one Rabari Mashru Ajubhai, the original petitioner was in possession of land admeasuring 5 gunthas bearing survey No. 172/42 of Village Agdol. It is alleged by the petitioner that he was in possession since more than 30 years. It is further the case of the petitioner that the petitioner has spent huge amount for leveling the said land and also dug well and erected pump for irrigation. It is also the case of the petitioner that he has also constructed a house in the said land. The record indicates that the petitioner applied for regularization of the possession of the said encroachment. However, the same was not granted. The record indicates that the petitioner and his four brothers inherited jointly agricultural land about 8 acres and 18 gunthas and according to the family partition, the area of 1 acre and 28 gunthas came to the share of the petitioner and the remaining lands had gone to the share of other brothers. However, due to oversight, the said fact was not recorded in the revenue record. The record indicates that the petitioner, by an application dated 18.4.1993, requested respondent No. 2 to regularize the encroachment upon the land on the ground that the petitioner was in possession of the land in question since last 30 years. As averred in the petition, on receipt of such application, the District Collector, Banaskantha directed respondent No. 3 - Mamlatdar to inquire and submit his report and thereafter, the Mamlatdar directed the Circle Inspector, Zerda to inquire into the matter and submit the report. It is the case of the petitioner that pursuant to such directions issued, the Circle Inspector visited the site and conducted a detailed inquiry after recording the statement and also prepared Panchnama of the site and ultimately, by a report dated 1.9.1993, the Circle Inspector opined that the encroachment be regularized. It is the case of the petitioner that pursuant to such directions issued, the Circle Inspector visited the site and conducted a detailed inquiry after recording the statement and also prepared Panchnama of the site and ultimately, by a report dated 1.9.1993, the Circle Inspector opined that the encroachment be regularized. It is further averred by the petitioner that respondent No. 3 - Mamlatdar after taking into consideration the report so filed by the Circle Inspector also concluded that there is no objection if the land is regularized and accordingly, the report came to be submitted to the Deputy Collector, Banaskantha. It is a matter of record that it was respondent No. 3-Mamlatdar who came to the conclusion that the petitioner is in possession of the land in question since year 1972-73 and that the petitioner has also spent huge amount for levelling the land and also dug well in the said land. The report also indicates that the petitioner belongs to Bakshi Panch community and is holding 1 acre and 18 gunthas which has come as share of joint family property and therefore, in opinion, it was averred that the petitioner shall have total area of 6 acres and 28 gunthas if the land is regularized and the value of the land in question was fixed at Rs. 7,500/- per acre. Based upon such report, the Deputy Collector, Banaskantha prepared the proposal and submitted it for appropriate decision. The record indicates that the Collector, Banaskantha, after scrutinizing the proposal, decided to regularize the land as prayed by the petitioner vide order dated 11.3.1998 and was further pleased to direct the petitioner to pay the amount of Rs. 75,000/- as Ekwadi Kabja Hak. It is also provided in the said order that if such amount is not paid, then, it would be considered that the petitioner is not interested in the land. It is the case of the petitioner that the petitioner was made to understand that on making such payment, only the formal order is required to be passed by the Collector. It is the say of the petitioner that on receipt of such communication, the petitioner paid the said amount on 27.3.1998 and informed the Collector, Banaskantha about the factum of such payment. It is the say of the petitioner that on receipt of such communication, the petitioner paid the said amount on 27.3.1998 and informed the Collector, Banaskantha about the factum of such payment. The record indicates that thereafter, the District Collector, Banaskantha forwarded the proposal for approval to respondent No. 1 State on 17.2.1999 and so also for passing the formal order of regularization. 3. The petitioner has averred that however, by the impugned communication dated 27.11.1999, proposal of the petitioner for regularization of the occupation came to be rejected by the State Government on the ground that the petitioner holds the land admeasuring 3 Acres and 18 Gunthas which has come by way of joint family share and therefore, as per the Resolution dated 8.1.1980, total holding of the petitioner would be more than 8 Acres. On the aforesaid ground, the proposal came to be rejected. It is contended by the petitioner that on receipt of such communication, the petitioner informed the authorities that the total holding upon the regularization of the possession qua the lands in question would be only 6 Acres and 18 Gunthas. However, the same was not acceded to and therefore, this petition. 4. The matter came to be admitted by this Court vide order dated 21.9.2000 and interim relief was also granted as prayed for. 5. In response to the notice issued by this Court, the respondents have filed affidavit-in-reply and have mainly contended that the total holding of the petitioner, out of the land, which has come to the share of the petitioner by way of account No. 57, 59 and 60 would be more than 8 Acres and therefore, as per the Government Resolution dated 8.1.1980, possession of the petitioner cannot be regularized as it would be more than 8 Acres i.e. 8 Acre and 18 Gunthas. It is contended that on the aforesaid basis that the proposal of regularization has been rightly rejected. 6. The petitioner has also filed rejoinder and has brought on record that the total holding which has come by way of heirship from the 3 accounts being account No. 57, 59 and 60 to the share of the petitioner would be 2 Acres and 10 Gunthas. 6. The petitioner has also filed rejoinder and has brought on record that the total holding which has come by way of heirship from the 3 accounts being account No. 57, 59 and 60 to the share of the petitioner would be 2 Acres and 10 Gunthas. The petitioner has also filed an additional affidavit and has also explained the steps which are to be taken as per the provisions and the procedure which is to be followed as per the Government Resolution dated 8.1.1980. 7. Heard Mr. Abhimanyu Rathod, learned advocate for Mr. Mehul Rathod, learned advocate for the petitioner and Ms. Maithili Mehta, learned Assistant Government Pleader for the State Government authorities. 8. Mr. Rathod, learned advocate for the petitioner has contended as under:- 8.1 That, the impugned orders deserve to be quashed and set aside as the same are contrary to the evidence which is brought on record by the petitioner. 8.2 That, both the orders have been passed without giving an opportunity of being heard to the petitioner. 8.3 That, the authorities have ignored the report of Circle Inspector which was prepared by the Circle Inspector after due verification and inquiry made at the site and therefore, there is total non-application of mind on the part of the authorities while passing the impugned orders. 8.4 Mr. Rathod has also drawn attention to the fact that as per the statement issued by Talati-cum-Mantri of Ajod Gram Panchayat, the total holding of the original petitioner, out of 3 accounts No. 57, 59 and 60 would be 2 Acres and 10 Gunthas and therefore, on regularization, the total holding of the petitioner would be less than 8 Acres. 8.5 Mr. Rathod contended that on bare reading of Resolution dated 8.1.1980, it transpires that the total extent of holding should not exceed 8 Acres. 8.6 It is contended that even assuming without admitting that the total holding of the petitioner would be 8 Acres and 18 Gunthas, as contended by the respondents, the same does not mean that the land to the extent of 8 Acres also cannot be regularized. It is contended that even if it is presumed that the total holding of the petitioner would be more than 8 Acres, the petitioners are ready and willing to give back land which is more than 8 Acres. It is contended that even if it is presumed that the total holding of the petitioner would be more than 8 Acres, the petitioners are ready and willing to give back land which is more than 8 Acres. It was therefore submitted that the authorities below, with respect, have misread the provisions of Resolution dated 8.1.1980. 8.7 It is also contended that even though from the initial report prepared by the Circle Inspector, it has come on record that the petitioner has been in possession since 1972-73 and that the petitioner has incurred huge expenses for levelling the land in question and to convert it into the cultivable; such vital fact and the very basis of the Resolution dated 8.1.1980 is totally ignored and brushed aside by the authorities below without assigning any cogent reasons. On the aforesaid grounds and on the basis of the rejoinder and the additional affidavit in particular, it was contended that the petition deserves to be allowed as prayed for. 9. Per contra, Ms. Maithili Mehta, learned Assistant Government Pleader has opposed the petition. It is contended that as averred in the affidavit-in-reply, total holding of the petitioner would come to 8 Acres and 18 Gunthas and therefore, he is not entitled for any regularization of the possession of the lands in question under the Resolution dated 8.1.1980. It was, therefore, contended that the petition is misconceived and the same deserves to be dismissed. 10. No other or further contentions and/or submissions are made by the learned advocates appearing for the respective parties. 11. Considering the submissions made by the learned advocates appearing for the respective parties and on perusal of the record of the petition, it would be appropriate to refer to the relevant provisions of the Resolution dated 8.1.1980. The said Resolution of the Government clearly provides that the basic principle would be to remove the encroachment. It is also provided that if any land is required even in future for any public purpose, such encroachment cannot/should not be regularized. It is also provided that if any encroachment is made by backward class or persons belonging non-backward class, if it is found that the removal is likely to result into loss to such person and if such regularization is not going to affect the interest of the Government or that if it is not detrimental to public interest, the regularization may be granted. The said Resolution clearly provides that the total extent of any encroachment should not exceed 8 Acres and regularization may be done accordingly. It is also provided that in case if holding of such encroacher is more than 8 Acres, then, arrangements be made to evict the encroacher from the land "to that extent". On bare reading of such provision in the policy declared by the State by way of Government Resolution dated 8.1.1980, it transpires that same gives enabling power to the authorities of the State Government to regularize the encroachment to the extent of 8 Acres and any excess land is to be taken back. However, the said provision cannot be read in the manner in which the authorities have attempted to read. What is provided by such provision in the Resolution is the total extent to which regularization of encroachment can be granted. It does not provide that if the total holding of a person or an encroacher is more than 8 Acres, no regularization can be granted even for 8 Acres. Even from the affidavit which is filed before this Court, it can be said that it reflects that the stand of the Government is that if a person who owns more than 8 Acres, then, the total land cannot be given benefit of the Resolution dated 8.1.1980. In opinion of this Court, such reading of the provisions of Resolution dated 8.1.1980 is ex-facie erroneous. Thus, the very basis of the impugned orders is based on erroneous reading of the Resolution dated 8.1.1980. The petitioner has rightly contended that the authorities have not only misread the provisions of the Resolution dated 8.1.1980, but has also disregarded and discarded the report submitted by the revenue authorities. Though it can be said that the regularization is not a matter of right, but at the same breath, the State Government cannot be permitted to interpret its own Resolution in an erroneous manner as is done in the case on hand. The respondents have not even denied before this Court that the Resolution dated 8.1.1980 is not applicable in case of the petitioner. It is not even the case of the respondent authorities that the petitioner is otherwise not eligible. The respondents have not even denied before this Court that the Resolution dated 8.1.1980 is not applicable in case of the petitioner. It is not even the case of the respondent authorities that the petitioner is otherwise not eligible. It is also not the case of the respondents that the contention of the petitioner that he is in possession since more than 30 years is incorrect and therefore, the State Government should have examined the same in its true perspective. The Resolution dated 8.1.1980 is in form of a reform. Though such Resolution is to be strictly interpreted, the same cannot be interpreted indirectly in a negative manner as is done by the respondent authorities in the case on hand. In facts of this case, with respect, the respondent authorities have misread the Government Resolution dated 8.1.1980. Considering the record of the case, the respondent authorities ought to have examined the total holding of the petitioner and thereafter, should have taken a decision in accordance with law with the provision of Government Resolution dated 8.1.1980. Merely because the family arrangement does not properly reflected in the revenue records, the authorities ought to have called upon the petitioner to either furnish further details and/or proof of such family partition to determine as to what extent of land has come to the share of the petitioner by way of account No. 57, 59 and 60. Cumulatively therefore, it transpires that the impugned decisions are taken not only on wrong interpretation of the Government Resolution dated 8.1.1980, but the impugned orders are based on improper consideration of vital fact i.e. as to what is the total extent of land with the petitioner from the family property out of account No. 57, 59 and 60. It is also not denied by the respondents that on the petitioner being asked to deposit the amount of Rs. 75,000/- the petitioner has not deposited the same. Resultantly therefore, the impugned orders are an error apparent on the face of the record and therefore, deserves to be quashed and set aside. 12. In light of the aforesaid therefore, the impugned orders deserve to be quashed and set aside and are hereby quashed and set aside. The proceedings of application dated 18.4.1993 filed by the original petitioner are remanded and restored back to the file of the District Collector, Banaskantha. 12. In light of the aforesaid therefore, the impugned orders deserve to be quashed and set aside and are hereby quashed and set aside. The proceedings of application dated 18.4.1993 filed by the original petitioner are remanded and restored back to the file of the District Collector, Banaskantha. The District Collector, Banaskantah shall inquire into the same and after giving an opportunity of being heard to the legal heirs and representatives of the original petitioner, pass necessary orders. The concerned authorities shall endeavour to complete the said exercise as expeditiously as possible. Till the respondent authorities take such fresh decision, the petitioners also shall not make any change in the use and occupation of the lands in question. 13. The petition is thus allowed in the above terms. Rule is made absolute to the aforesaid extent. There shall be no order as to costs.