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2017 DIGILAW 343 (GUJ)

Koli Popatbhai Talsibhai v. Secretary-Appeal

2017-02-10

ABHILASHA KUMARI

body2017
JUDGMENT : Abhilasha Kumari, J. 1. Rule. Mr. Tirthraj Pandya, learned Assistant Government Pleader waives service of notice of Rule for the respondents. 2. By preferring this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged the order dated 16.04.2013 passed by the Secretary (Appeals), Revenue Department (SSRD for short), the first respondent herein, whereby the application for review of the order dated 03.10.2007 o f the SSRD was not entertained, the order dated 03.10.2007 of the SSRD, the order dated 29.01.2003 passed by the second respondent, Collector, Rajkot and the order dated 10.03.1997 passed by the Deputy Collector. 3. Briefly stated, the facts of the case are that land bearing Survey No. 222, admeasuring 5 Acres and 20 Gunthas, situated at Village Nakrawadi, District Rajkot (the land in question), was granted to the father of the present petitioner as "Santhani" land for the purpose of cultivation. This land was granted as new tenure land, subject to certain conditions as contained in the order of allotment dated 18.07.1975. It is the case of the petitioner that ever since the allotment, the land was being regularly cultivated by the father of the petitioner and, thereafter, by the petitioner. Condition No. 7 in the order of allotment states that if the land remains fallow, without any reason, it would be liable to be resumed by the State Government. A Show Cause Notice dated 13.01.1997 was issued by the Deputy Collector, calling upon the petitioner to show cause as to why the land in question should not be ordered to vest in the State Government, on the ground that it was kept fallow for the years 1991-92 and 1994-95. The petitioner replied to the Show Cause Notice in March 1997, explaining that he could not cultivate the land due to financial difficulties, a poor monsoon and the illness of his father. The petitioner explained that his family consists of twelve members and the entire family is solely dependent upon the land in question for their livelihood. The petitioner also pointed out that immediately after the period of the breach, the land has been cultivated by him and even at the time of replying to the notice, the land was under cultivation, which aspect could be verified by an inquiry. The petitioner also pointed out that immediately after the period of the breach, the land has been cultivated by him and even at the time of replying to the notice, the land was under cultivation, which aspect could be verified by an inquiry. The reply of the petitioner did not find favour with the Deputy Collector who, by his impugned order dated 10.03.1997, directed that the land be vested in the State Government. 4. It appears from the said order that before the Deputy Collector directed the vesting of the land, he had called for a report from the Talati-cum-Mantri of the concerned village wherein it was observed that after the grant of the land in the year 1975, the father of the petitioner had made it cultivable and was growing crops thereupon. However, it was found, on the basis of the revenue record, that there was no cultivation during the years 1991-92 and 1994-95. 5. Aggrieved by the above order of the Deputy Collector, the petitioner approached the Collector who, by the impugned order dated 29.01.2003, rejected the appeal of the petitioner on several grounds that would be adverted to at the relevant stage. The petitioner approached the SSRD by filing a Revision Application, which was rejected by the impugned order dated 03.10.2007. Thereafter, the petitioner filed a review application before the SSRD, which was not entertained for lack of jurisdiction, as stated in the order dated 16.04.2013. Under the circumstances, the petitioner is before this Court. 6. Considering the facts of the case, this Court, vide order dated 25.02.2016, directed that a "Panchnama" of the land in question be prepared by an officer not below the rank of a Mamlatdar, indicating the extent of cultivation as well as photographs of the land. The said Panchnama has been prepared and will be discussed later on. 7. Mr. Pravin S. Gondaliya, learned counsel for the petitioner submits that the father of the petitioner and, later on, the petitioner himself, have regularly cultivated the land ever since it was granted in the year 1975. This aspect has been stated in the order of the Deputy Collector as well. The petitioner and his family members have worked hard to make the land cultivable and would have no other means of livelihood if the land is taken away from them. This aspect has been stated in the order of the Deputy Collector as well. The petitioner and his family members have worked hard to make the land cultivable and would have no other means of livelihood if the land is taken away from them. It is submitted that no doubt, there is a condition in the order of allotment stating that the land would be liable to be resumed by the State Government if found to be lying fallow, however, the said condition clearly stipulates that this eventuality would occur only if the land remains uncultivated without any reason. Hence, the reason put forth by the petitioner, that there was a poor monsoon during the periods when the land remained uncultivated, has not been considered or verified. This reason is beyond the control of the petitioner who cannot be punished for it. Besides, the father of the petitioner was facing financial difficulties as well. It is contended that since 1975 the land has been regularly cultivated, except for the two periods during 1991-92 and 1994-95 when there was a poor monsoon. Even thereafter the land, which is still in the possession of the petitioner, is being regularly cultivated. The respondents ought to have ascertained whether there was any reason for not cultivating the land, instead of ordering its vesting without a proper inquiry. 8. Learned counsel for the petitioner further contends that while passing the impugned order, the Collector, has travelled much beyond the scope of the Show Cause Notice and made observations that are not at all warranted or germane to the said notice. By raising grounds not specified in the Show Cause Notice, the Collector has committed a breach of the principles of natural justice as the petitioner has had no opportunity to reply to the said grounds. 9. It is further submitted that the land in question has been cultivated even after the breach, which is clear from the "Panchnama" prepared by the Mamlatdar under the orders of this Court. The petitioner is solely dependent on the monsoon for the cultivation of the land in question as there is no other means of irrigation available. 9. It is further submitted that the land in question has been cultivated even after the breach, which is clear from the "Panchnama" prepared by the Mamlatdar under the orders of this Court. The petitioner is solely dependent on the monsoon for the cultivation of the land in question as there is no other means of irrigation available. Without verifying the reason regarding failure of the monsoon during the relevant periods of time, which reason is beyond the control of the petitioner, the respondents have committed a serious error, by directing the land to be vested in the State Government, leading to a grave miscarriage of justice to the petitioner. 10. In support of the above submissions, learned counsel for the petitioner has placed reliance upon the following judgments: "(i) Bharwad Vela Mepa Legal heir of Bharwad Mepa vs. State of Gujarat, reported in (2005) 8 GHJ 673 . (ii) Satyakalyan Coop Farming Society Ltd. Thro Chairman vs. State of Gujarat, reported in (2005) 8 GHJ 712 ." 11. The petition has been opposed by Mr. Tirthraj Pandya, learned Assistant Government Pleader, appearing for the respondents. It is submitted by learned Assistant Government Pleader that in the reply to the Show Cause Notice, the petitioner has admitted that there was a breach of the condition of the allotment order during the relevant periods of time as his father was ill and the monsoon was poor. Hence, the action of the respondents in directing the vesting of the land is proper and as per the conditions of the allotment order. 12. That the petitioner filed a revision application against the order of the Collector after a delay of four years, without filing any application for condonation of delay, therefore, the revision application has rightly not been entertained by the SSRD on the ground of delay. 13. It is further submitted that though there is no provision for filing a review application, the petitioner did so, which application has rightly not been entertained by the SSRD. Learned Assistant Government Pleader further contends that if the petitioner is still cultivating the land, as stated by learned counsel for the petitioner, it would tantamount to an encroachment, as the land has now been vested in the State Government since the year 1997. 14. On the strength of the above submissions, learned Assistant Government Pleader has prayed for the rejection of the petition. 15. 14. On the strength of the above submissions, learned Assistant Government Pleader has prayed for the rejection of the petition. 15. Having heard learned counsel for the respective parties and upon according thoughtful consideration to the rival submissions and the material on record, it emerges that the land in question, which was government waste land, was granted to the father of the petitioner on 18.07.1975, for the express purpose of cultivation. The said grant is in consonance with the beneficial policy of the State Government in granting parcels of Government waste land to poor, landless persons, who have no means of livelihood. As such, the policy that is the cornerstone of the grant of the land in question to the father of the petitioner is a benevolent one. No doubt, certain conditions are attached to the grant, which are enumerated in the order of allotment. Condition No. 7 of the order of grant is to the effect that the land in question would be liable to be resumed by the State Government if found to be uncultivated without any reason. This condition is also in consonance with the purpose for which the land is granted, namely for cultivation, which would provide a sustainable means of livelihood for the person and family in whose favour it is granted. However, it cannot be lost sight of, that this condition would only operate if it is found that the land has remained uncultivated "without any reason". These are the key words in this condition which require that the authority concerned which alleges the breach, is bound to satisfy itself by a proper inquiry and verification that there was, indeed, no reason for the land being left uncultivated. The State Government in its wisdom and experience, is aware of, and alive to, the possibility that farmers, especially in the arid region of Saurashtra where the land is situated, can face certain difficulties in cultivation and there can be a valid reason for the land remaining fallow. Only when it is found that the land has remained uncultivated "for no reason" as stipulated in Condition No. 7, can the competent authority, in this case the Deputy Collector, direct the vesting of the land in the State Government and not otherwise. This stipulation is clear from a perusal of Condition No. 7 of the allotment order. Only when it is found that the land has remained uncultivated "for no reason" as stipulated in Condition No. 7, can the competent authority, in this case the Deputy Collector, direct the vesting of the land in the State Government and not otherwise. This stipulation is clear from a perusal of Condition No. 7 of the allotment order. There can be no automatic vesting of the land due to its remaining fallow at any given period without ascertaining the reason for this. To direct so would defeat the very purpose of the beneficial policy of the State Government. 16. It is asserted by learned counsel for the petitioner and not denied by the respondents, that there is no other source of irrigation available for the land in question except the monsoon. The petitioner has to depend on the vagaries of the monsoon which does not follow any predictable pattern and is beyond the control of everybody, even in the present age of advanced technology. If there is no other means of irrigation for the land except the monsoon, it follows that during the years when there is a poor monsoon there would be no source of irrigation and it would not be possible to cultivate the land. Poor monsoon, leading to failure of cultivation, would lead to financial crisis for the petitioner who is dependent only on the land in question for his livelihood and to maintain his family of twelve members. This reason advanced by the petitioner in his reply to the Show Cause Notice, in the view of the Court, is a valid one which ought to have been examined, verified and inquired into by the Deputy Collector before passing the order of vesting the land in the State Government. However, this was not done and only on the basis of the revenue record produced by the Talati-cum-Mantri which showed that the land in question remained fallow for the two relevant periods of time, has the Deputy Collector passed the impugned order, that has drastic consequences for the petitioner. 17. It is an admitted position that ever since its grant in the year 1975, the land was being regularly cultivated by the petitioner's father and the petitioner, except for the two periods mentioned in the Show Cause Notice. 17. It is an admitted position that ever since its grant in the year 1975, the land was being regularly cultivated by the petitioner's father and the petitioner, except for the two periods mentioned in the Show Cause Notice. It is asserted by the petitioner and not denied by the respondents that the land is still being cultivated as the possession is with the petitioner. This aspect is supported by the Panchnama that was directed to be drawn by the Court. 18. The view of this Court that the Deputy Collector ought to have verified whether there was any reason for the land remaining fallow and without doing so no directions could have been issued for its automatic vesting in the State, is supported by the judgments relied upon by learned counsel for the petitioner. 19. In the case of Bharwad Vela Mepa Legal heir of Bharwad Mepa vs. State of Gujarat (supra), the facts were similar to the present case and the land remained uncultivated due to drought, as per the case of the petitioner of that petition. The land came to be forfeited to the State Government. In this context this Court held as below: "6. A perusal of the impugned order shows that neither the revenue authority has followed the procedure of giving opportunity of hearing to the concerned person by observing principles of natural justice before relying upon the revenue record of village Form 7/12 and/or the report of the Talati-cum-Mantri nor it has been considered as to whether the land was not cultivated due to circumstances beyond the holder of the land or not. As per the view taken by this court in the decision rendered in SCA 5877/04 read with the decision in SCA No. 3802/04 if it is found that the land was not used for agricultural purpose because of voluntary action or inaction on the part of the holder of the land, then only such power for resumption or forfeiture of the land is permissible. There is no examination on the said aspect by the revenue authority in the impugned order and even in the appeals before the Collector as well as in the revision before the State Govt. the said aspect is not considered. Under the above circumstances, the orders passed by the Dy. Collector and confirmation thereof by the Collector in appeals and further confirmation by the State Govt. the said aspect is not considered. Under the above circumstances, the orders passed by the Dy. Collector and confirmation thereof by the Collector in appeals and further confirmation by the State Govt. in the revision can not be sustained in the eye of law and the said impugned orders deserve to be quashed and set aside and hence they are quashed and set aside. It is further observed that it would be open to the Dy. Collector to issue a fresh show cause notice and after giving opportunity of hearing and after considering the case for the concerned land, in light of the observations made by this Court hereinabove and to decide the matter in accordance with law." 20. In Satyakalyan Coop Farming Society Ltd. thro Chairman vs. State of Gujarat (supra), this Court has held as below: "4. There must be cogent, authenticated and lawful material for altering the rights in immovable properties for such breach. Moreover, even if it is established that there is a breach, and if the authority is to take action of forfeiture, then it should also be examined as to whether the breach was due to circumstances beyond the control of the holder of the property and, if yes, then in that case, harsh action of forfeiture of the property would not be required but the authority will have to consider the matter for imposition of fine/penalty considering the gravity of the breach, including the period for such breach. If it is a matter resulting into action of forfeiture of land, then principles of natural justice to its full extent considering the facts and circumstances of the case will be required to be followed. Therefore, only entry in village Form No. 7/12 can not be said as sufficient material attracting the power of authority for forfeiture of the land to the State Government. (Emphasis supplied) Under the circumstances, it is apparent that the Prant Officer as well as the State Govt. have committed apparent jurisdictional error in exercising power on the basis of the entry in village Form No. 7/12 and holding that there is breach of conditions of grant of land and holding that the land deserves to be forfeited to the State Government. have committed apparent jurisdictional error in exercising power on the basis of the entry in village Form No. 7/12 and holding that there is breach of conditions of grant of land and holding that the land deserves to be forfeited to the State Government. If the observations made by this Court referred to herein above are considered, it is apparent that the competent authority i.e. Deputy Collector has not examined the matter as to whether there was any reason beyond the control of the holder of the land for not utilising the land for agricultural operations fully." 21. Considering the above judicial pronouncements and as there has been no proper verification of the reason for not cultivating the land as submitted by the petitioner, this Court is firmly of the view that the land in question could not have been forfeited to the State Government as the concerned revenue authorities have themselves not followed Condition No. 7 of the allotment order in its true spirit. Forfeiture of land granted to a person such as the petitioner for the purpose of cultivation, which forms the only source of livelihood for his family of twelve members, is a very harsh step, considering the fact that the land has been regularly cultivated from 1975 onwards, except for the two relevant periods, till date. Such a drastic power ought not to have been exercised without properly examining and verifying whether the land remained uncultivated for reasons beyond the control of the petitioner or not. Merely relying on revenue entries is not the right method to do so. Revenue entries would never record the reason for non-cultivation of the land but only the factum of non-cultivation. It is the reason for non-cultivation that is to be examined and whether it is of a nature over which the petitioner had no power, such as the failure of the monsoon. The impugned orders of the revenue authorities, therefore, cannot be sustained on the above grounds. 22. Before parting with the case, this Court cannot but notice that while passing the impugned order, the Collector has travelled much beyond the scope and ambit of the Show Cause Notice, which was confined only to the two periods that the land remained fallow. The impugned orders of the revenue authorities, therefore, cannot be sustained on the above grounds. 22. Before parting with the case, this Court cannot but notice that while passing the impugned order, the Collector has travelled much beyond the scope and ambit of the Show Cause Notice, which was confined only to the two periods that the land remained fallow. The Collector has thought it fit to observe that the petitioner resides at Rajkot for educational purposes, not considering that Rajkot is very close to the village of the petitioner. There can be no embargo upon a farmer pursuing his education at the same time as farming his land. Moreover, the petitioner has a large family and self-cultivation includes cultivation by family members as well. Regarding the family of the petitioner the Collector has observed that the family of the petitioner consists of twelve persons which is against the Family Planning norms. This Court is astonished at this observation, which is as incongruous as it is irrelevant, in the context of the issue in dispute. Such loose and unnecessary observations are absolutely unwarranted and not expected from a responsible authority such as the Collector. 23. The issue of delay raised by the learned Assistant Government Pleader, which is one of the reasons why the SSRD did not entertain the Revision Application of the petitioner, pales into insignificance when the very basis of the initial order of forfeiture of land is found to be improper and unsustainable in law. The revenue authorities have not exercised the jurisdiction vested in them in a proper manner, as contemplated by Condition No. 7 of the order of grant. Hence, the cause of the petitioner cannot be defeated on the ground of delay. 24. Considering the totality of the facts and circumstance of the case as discussed hereinabove and for the aforestated reasons, this Court considers it just and proper to pass the following order: "The petition is allowed. The order dated 10.03.1997, passed by the Deputy Collector, the order dated 29.01.2003 of the Collector and the order dated 03.10.2007 of the Special Secretary (Appeals), Revenue Department are hereby quashed and set aside. Consequently, the order dated 16.04.2013, passed by the SSRD in the Review Application of the petitioner would no longer survive." Rule is made absolute. Parties to bear their own costs.