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2017 DIGILAW 657 (GUJ)

Rabari Mewabhai Jodhabhai v. State of Gujarat

2017-03-23

K.M.THAKER

body2017
JUDGMENT : K.M. Thaker, J. 1. Heard Mr. Rathod, learned advocate for the petitioners, and Mr. Patel, learned AGP for the respondent-State. 2. In present petition, the petitioners have prayed, inter-alia, that:- "10(A) YOUR LORDSHIPS be pleased to issue a writ of certiorari or writ in nature of certiorari or any other appropriate writ, order or direction for quashing and setting aside the order dated 30.7.2001 passed by the Respondent No. 1 authority in Revision Application No. 4 of 1997 at Annexure-A to this petition and be pleased to confirm the order passed by the Mamlatdar dated 17.4.1993." 3. So far as factual background involved in present case and which gave rise to the proceedings before the statutory authority, can be summarized thus:- "At the outset, it is necessary and appropriate to mention that it is not in dispute that the land in question was originally government land. It has emerged from submissions an undisputed fact has emerged viz. sometime before the proceedings in question commenced, the petitioners herein had encroached upon the said government land. By way of encroachment, they came in possession and they continued occupation of the land in question. Somewhere in 1980, government framed and introduced policy for regularization of encroachment in respect of certain lands covered under the policy. It appears that in light of and on the strength of such policy, present petitioners approached the Mamlatdar with their request to regularize their possession in respect of the land bearing survey No. 24/6 paiki admeasuring Acres-6 Gunthas-00. The Mamlatdar considered their application and vide order dated 17.4.1993 regularized possession by granting/allotting 1-Acre land to each petitioner, i.e. in total 6-Acres of land, to six persons (who are petitioners in present petition)." 4. It has further emerged from the record that after the Mamlatdar passed order regularising the encroachment of land in question, one Mr. Vaktaji Hiraji Bhil, after lapse of almost 10 months, filed Appeal before Deputy Collector against the order dated 17.4.1993 passed by the Mamlatdar. The said Appeal came to be allowed, in absence of the complainant/ appellant, by Deputy Collector vide order dated 12.7.1995. 5. Feeling aggrieved by the order of Deputy Collector, the petitioners filed appeal before the Collector. The Collector also rejected the Petitioners' appeal vide his order dated 19.3.1996. Therefore, the petitioners approached Secretary (Appeals). The said Appeal came to be allowed, in absence of the complainant/ appellant, by Deputy Collector vide order dated 12.7.1995. 5. Feeling aggrieved by the order of Deputy Collector, the petitioners filed appeal before the Collector. The Collector also rejected the Petitioners' appeal vide his order dated 19.3.1996. Therefore, the petitioners approached Secretary (Appeals). The Secretary (Appeals) considered the revision application and vide his order dated 25.7.2001 rejected the revision application. In this background the petitioners have approached this Court. 6. Mr. Rathod, learned advocate assailed the order passed by the Deputy Collector, Collector and Secretary (Appeals) on diverse grounds. He submitted that the authorities have misread and misconstrued Mamlatdar's order inasmuch as the authorities have proceeded on the presumption that 6 Acres land is granted/regularised to one family whereas actually only 1 Acre of land is granted/regularised in favour of one petitioner i.e. 6 Acres land is granted/regularised amongst 6 persons who are not from one family. He further submitted that the authorities appear to have proceeded on the misconception viz. 6 persons are members of the same family whereas factually that is not so. He, of course also submitted that total holding of any petitioner does not exceed maximum permissible limit and that, therefore, there is no justification in setting aside the order passed by the Mamlatdar. 7. Mr. Patel, learned AGP opposed the submission and the contention by learned advocate for the petitioners. Learned AGP heavily relied on the reply filed by Deputy Collector. He further submitted that 3 concurrent orders are passed against the petitioners and that, there is no justification to interfere with the said order. He further submitted that the orders are based on material which were available on record before the authorities and the findings recorded by the authorities based on the relevant details and facts and sufficient reasons and findings recorded by the competent authorities. Learned AGP also relied on the affidavit dated 13.6.2002 filed by SDM-Deesa and in light of the details mentioned in the said 2 facts, learned AGP opposed the petition and submitted that the orders passed by the said 3 authorities does not suffer from any infirmity. 8. I have considered the submission by learned advocate for the petitioners and the respondents as well as the material available on record. 9. 8. I have considered the submission by learned advocate for the petitioners and the respondents as well as the material available on record. 9. It has emerged from the record that the appeal which came to be filed before Deputy Collector by one Mr. Vaktaji was never prosecuted by the said person. 9.1 It appears that after the appeal came to be filed, said Mr. Vaktaji-appellant, never remained present before the Deputy Collector and the intimation forwarded to said Appellant informing him about the date of hearing were also not served to the said appellant. 9.2 Likewise during the proceedings before the Collector as well as before the Secretary (Appeals), the said person never remained present. 9.3 Even during the hearing of this petition also the said person i.e. Mr. Vaktaji has never attended the proceedings. 9.4 In this background, learned advocate for the petitioners would contend that the person who initiated the appeal has never attended the hearing and he has, since long time, abandoned the proceedings and that, therefore, the proceedings should have been terminated in absence of appellant. It is also contended that the appeal was filed after expiry of prescribed period of limitation and that any application for condonation of delay was not filed, the Deputy Collector decided the appeal without passing any order with regard to delay and that therefore, the orders are unsustainable in law. 10. In view of the said contention by the petitioners, this Court also took steps to ascertain whether the private respondent is interested in opposing the petition, or not. 11. The Learned AGP was requested to make inquiry through office of the Collector and/or office of the Panchayat to find out the whereabouts of the concerned person. He was also instructed to get the voters list examined to find out as to whether persons has shifted to any other village in the same District. However, on inquiry through office of Panchayat/ Collector, the whereabout of the said private respondent i.e. Mr. Vaktaji are not known. 11.1 Besides this the petitioner has filed affidavit dated 23.2.2015 and declared that: "2. I say and submit that thereafter vide order dated 18.1.2017, this Hon'ble Court was pleased to direct the Ld. Advocate for the petitioners to take appropriate steps as it was reported that the respondent No. 5 has expired. Vaktaji are not known. 11.1 Besides this the petitioner has filed affidavit dated 23.2.2015 and declared that: "2. I say and submit that thereafter vide order dated 18.1.2017, this Hon'ble Court was pleased to direct the Ld. Advocate for the petitioners to take appropriate steps as it was reported that the respondent No. 5 has expired. I say and submit that once against, the petitioners have inquired with the Village people and the Village Panchayat Office, however, neither Vaktaji Hiraji nor any of his heirs nor family members are found to be residing at Village Nani. It is submitted that none of the village people are also award about such person or their whereabouts and hence, the petitioners have obtained a certificate in this regard from the Talati of Village Nani. The petitioners beg to annex a copy of certificate dated 7.2.2017 at Annexure-I to this affidavit. 3. I say and submit that the fact that said Vaktaji Hiraji is not residing in the Village is also evident from the order of the Dy. Collector dated 12.7.1995 (Annexure-C) and thus it becomes clear that since the beginning of the proceedings in the present case, such person is not existing/residing in the village and therefore also, the initiation of the present proceedings itself is baseless and frivolous. 4. I further say and submit that all the petitioners are not belonging to one family and are residing separately with their individual families. I say and submit that none of the petitioners are holding any land in excess of the stipulated limits. It is further submitted that all the petitioners have spent huge amounts of money for developing the land allotted to them and have constructed their residential houses as well as irrigation facilities under the assistance of the scheme of the State Government. Moreover, the petitioners have also availed loans from financial institutions. In this regard, I beg to annex a copies of Ration Cards of petitioners at Annexure-II to this affidavit." 11.2 In this view of the matter the petition is heard in absence of said respondent. 12. On reading the award as well as the affidavits filed by SDM-Deesa and Deputy Collector, it appears that the authorities have proceeded on the belief that the concerned persons are members of the same family. 12. On reading the award as well as the affidavits filed by SDM-Deesa and Deputy Collector, it appears that the authorities have proceeded on the belief that the concerned persons are members of the same family. 12.1 It appears that relevant documents have not been examined by the concerned authorities to ascertain as to whether the said persons are actually persons of the same family or not and whether they would be entitled for regularization of land as a member of single family or separate families. 13. However, so far as the petitioner's contention on the ground that the total holdings of the petitioners do not exceed maximum permissible limit is concerned, actually the first criterion for considering the request for regularisation of encroachment would be as to whether any land, even small parcel of land, is possessed by or owned by or is in possession of the concerned applicants or not and secondly it cannot be overlooked that encroachment remains encroachment and regularisation cannot be demanded as matter of right even if the Policy for regularisation is framed and adopted by the Government. The government can consider such application within the boundaries of the Policy framed by it. 14. If actually all applicants are members of the same family then allotment/regularisation of almost 6 acres of land for land which was encroached upon in favour of one family would be, of course unjustified because it would deprive some other needy person who may not have any land in their possession. 15. Therefore, the issue as to whether the applicants belong to one family and whether they are members of same/single family should have been addressed and decided by the competent authority on the basis of cogent material and not merely on the basis of assumption and belief. It appears that the said aspect has not been examined by the concerned authorities on the basis of cogent material. 16. From the reply filed by the concerned authority it also appears that according to the policy one of the factors taken into account for the purpose of regularisation is whether applicants are dependent on the land in question for their source of income or not. 17. 16. From the reply filed by the concerned authority it also appears that according to the policy one of the factors taken into account for the purpose of regularisation is whether applicants are dependent on the land in question for their source of income or not. 17. From the submissions by the learned advocate for the petitioners, it has emerged that the claim by the petitioners that they are agriculturalists and have been cultivating the land in question and some of them are residing on the said land in question, is not considered/examined by the authority. 18. It is also contended that the concerned person have invested sizable amount for construction of irrigation facilities and have also availed loan for development of land in question. 19. Besides this, issue relating to time limit for initiating the proceedings against the order passed by the Collector is also raised by the Petitioners. Since these aspects are not taken into account by the authorities while passing the impugned orders, it appears that the matter deserves to be remanded to the concerned authority for re-consideration and for fresh order after hearing the petitioners and after granting opportunity to the petitioner to place relevant and cogent evidence in support of their submissions. 20. Therefore, following order is passed: "(a) Impugned order by the Secretary (Appeals) is set aside and the matter is remanded to the Secretary (Appeals) who will reconsider the case and pass appropriate fresh speaking and reasoned orders in accordance with law without being influenced by the previous order. (b) It is clarified that if the Secretary (Appeals) finds it necessary that the matter should be decided by any of the subordinate authorities i.e. Deputy Collector or Collector then it will be open to pass appropriate order. The authority shall decide above discussed issues, more particularly the contention that the petitioners are not members of one family but they are members of separate families. The authority shall decide the case afresh in accordance with law and applicable Rules and guidelines/policy. The petitioners are at liberty to put forward the material and details as may be deemed necessary and relevant to support the request for regularisation of lands in question. (c) With the aforesaid clarification, the petition is partly allowed. Rule is made absolute to the aforesaid extent." Petition Partly Allowed.