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Gujarat High Court · body

2020 DIGILAW 209 (GUJ)

Rakesh Punjaram Joshi v. Special Secretary

2020-01-31

A.S.SUPEHIA

body2020
ORDER : 1. Rule. Learned Assistant Government Pleader Mr.Shah waives service notice of Rule on behalf of respondent Nos.1 to 3. 2. Draft amendment is allowed in terms of the draft. 3. By the consent of the learned advocates appearing for the respective parties, the matter is taken up for final hearing. 4. In the present writ petition, the petitioner is, inter alia, praying for the following relief: “(A) YOUR LORDSHIPS may kindly be pleased to issue a writ of mandamus, or any other appropriate writ in the nature of mandamus, order or direction quashing and setting aside the order dated 13.08.2018 passed by the respondent no.1- Special Secretary, Revenue Department in Revision Application No. MVV/JMN/GDN /5 / 2018 as well as order dated 23.03.2018 passed by the District Collector in Appeal /CB/RTS/Randesan/ Revision/Dasu./ 20 of 2018 Revision Application No. 146 of 2015 as well as order dated 7.11.1990 passed by the learned Deputy Collector;” 5. Learned advocate Mr.Purohit, on the instructions of the petitioner, has submitted that the petitioner is ready and willing to pay any premium or any amount with regard to the objections raised by the respondent authorities so that the land in question may be regularized and entry to that effect in his name may be recorded in the revenue record. 6. The issue raised in the present petition pertains to the Entry No.559 certified on 29.01.1991 with regard to the land at Survey No.17/4 paiki, admeasuring 12141 sq. mts., Village Randesan, Taluka Gandhinagar, District Gandhinagar. 7. From the record, it is established that the land bearing Survey No.17/4 paiki, admeasuring 12141 sq. mts., Village Randesan, Taluka Gandhinagar, District Gandhinagar was originally allotted to one Shri Mansangji Chanduji by the order dated 14.04.1966 passed by the District Collector. It transpires that in the year 1982, the Prant Officer, Gandhinagar initiated the proceedings under Section 79A of the Gujarat Land Revenue Code, 1879, (“the Code”) against the original owner for breach of condition of the original allotment order and vide order dated 07.11.1990, the land in question was forfeited into the State Government on the ground that the land had remained uncultivated as well as the occupancy price was also not deposited by the original owner. It further transpires that the revenue Entry No.559 came to be mutated in the revenue record pursuant to the order passed by the Deputy Collector on 21.11.1990. It further transpires that the revenue Entry No.559 came to be mutated in the revenue record pursuant to the order passed by the Deputy Collector on 21.11.1990. Further, the said entry was never given effect in the 7/12 Extract of the revenue record. After the death of the original owner, Entry No.562 came to be mutated in the revenue record, whereby the name of the legal heirs of the original owner came to be mutated in the revenue record and it is observed that no notice under Section 135D of the Code came to be served upon to the occupants. The original heirs preferred an application before the Mamlatdar for conversion of the land in question from new tenure to old tenure and vide order dated 14.03.2001, the Mamlatdar granted the aforesaid permission converting the land from new tenure to old tenure. Accordingly, the restrictions of new tenure were lifted by the revenue authorities and the effect of the said order came to be given in the revenue record vide Entry No.903 dated 17.03.2001 and subsequently, the same came to be certified by the competent authority on 11.07.2001. 7.1 The petitioner, thereafter, wanted to purchase the land in question and, therefore, he had approached the heirs of the original land owner and accordingly, the petitioner verified all the revenue record and obtained the title clearance certificate from the solicitor as well as paper publication of the requisite notice on 08.09.2009. After carrying out the necessary search and obtaining title clearance certificate, by the registered sale deed dated 29.01.2010, the petitioner purchased the aforesaid land from the heirs of the original land owner and an entry, with respect to the aforesaid sale transaction, came to be mutated in the revenue record vide Entry No.2187 and the said entry came to be certified by the competent authority, after following the necessary procedure. The petitioner, thereafter, preferred an application before the Deputy Collector, Gandhinagar for obtaining permission for block division and vide order dated 02.03.2013, the Deputy Collector granted such permission and the land in question was divided into two parts, whereby new block numbers were given by the Deputy Collector. Block No.17/4/B, admeasuring 3567 sq. mts. as well as Block No.17/4/A, admeasuring 8574 sq. mts. Block No.17/4/B, admeasuring 3567 sq. mts. as well as Block No.17/4/A, admeasuring 8574 sq. mts. After the procedure was carried out by the Deputy Collector, the petitioner transferred the land bearing Block No.17/4/B in favour of Shri Ketan Pashabhai Patel and Pravinsinh Ishwarsinh Vaghela by way of registered sale deed and the aforesaid persons also transferred the land in question in favour of Shri Ganibhai Vadiya and Anjumbhai Ganibhai Vadiya by way of registered sale deed dated 28.03.2015 and an entry to the effect being Entry No.2970 was also certified by the competent authority. Thus, the remaining land bearing survey No.17/4/A remained with the petitioner and he is the sole owner and occupier of the said land. In the year 2018, as the petitioner was desirous to develop the land in question for non-agricultural use, he preferred an application before the concerned authority to convert the land in question from old tenure to non-agricultural use. After preferring the aforesaid application, the petitioner came to know that on 07.11.1990, the Deputy Collector had already forfeited the land in question into the State Government and, therefore, the title was not clear. 7.2 It is the case of the petitioner that on being advised, he approached the concerned authority for obtaining necessary revenue record as well as the order passed by the Collector, Gandhinagar and after obtaining the aforesaid order, the petitioner preferred an appeal under Section 203 of Code before the District Collector, Gandhinagar challenging the order dated 07.11.1990. A separate application for condonation of delay was also filed in challenging the aforesaid order. The District Collector vide order dated 23.03.2018 rejected CB/RTS/Randesan/Revision No.20 of 2018 filed by the petitioner and while rejecting the appeal, the District Collector observed that the land in question was already forfeited into the State Government in view of the order passed by the Deputy Collector dated 07.11.1990 and it was observed that the effect of the said order was given in the revenue record vide Entry No.559, however, due to irregularities committed by the concerned officer, the effect of the same was not given in 7/12 Extract of the revenue record. The appeal of the petitioner was mainly rejected on the ground of delay as the same was preferred after a period of 27 years. The appeal of the petitioner was mainly rejected on the ground of delay as the same was preferred after a period of 27 years. 7.3 The petitioner, thereafter, filed Revision Application No.MVV/Jaman/Gadhan/5 of 2018 before the respondent No.1 SSRD, however, the revision application was rejected vide order dated 13.08.2018 confirming the order passed by the Collector, wherein it was observed that since the petitioner was ready and willing to deposit the amount of premium, it was open for him to approach the State authority in view of the provisions of the Circular dated 17.03.2017 of the State Government. 7.4 It appears that, thereafter, for the first time, vide order dated 19.01.2019, the Collector, Gandhinagar rejected the application of the petitioner dated 01.09.2018 for reviewing his earlier order, by observing that since in the 7/12 Extract, the land belongs to the State Government and the present writ petition is pending, his application does not deserve to be allowed. Before the aforesaid order was passed, for the first time, in the Village Form No.6, Entry No.3437 was mutated on 15.02.2018 showing the land to be vested in the State Government. 8. Learned advocate Mr.Purohit appearing for the petitioner has invited the attention of this Court to the observations made by the concerned authorities. He has submitted that the aforesaid facts would suggest that the petitioner is a bona fide purchaser and hence, he is required to be given the benefit of the Circular dated 17.03.2017. 8.1 Learned advocate Mr.Purohit has submitted that the despite the orders of the SSRD observing to the effect that the petitioner can approach the concerned Collector for obtaining the benefit of the Circular dated 17.03.2017, in the Village Form No.6, Entry No.3437 is certified. He has submitted that since the petitioner is ready and willing to pay whatever the expenses or amount with regard to the objections raised by the respondent authorities, the said entry should not have been affected. 8.2 Learned advocate Mr.Purohit has submitted that looking to the observations from the order dated 09.11.1990, by which the land in question was vested in the State Government till the year 2018, when the same has not been given effect, the petitioner cannot be blamed. He has submitted that after carrying out necessary exercise and obtaining title clearance certificate, it was realized that the said entry was only given effectively in the 7/12 Extract. He has submitted that after carrying out necessary exercise and obtaining title clearance certificate, it was realized that the said entry was only given effectively in the 7/12 Extract. 8.3 Learned advocate Mr.Purohit has also submitted that thus, after issuing a public notice in 2009, the petitioner purchased the aforesaid land. He has submitted that despite the aforesaid issuance of public notice, no one had approached raising any objections including the revenue authorities and hence, the petitioner is a bona fide purchaser since he has purchased the aforesaid land. He has submitted that, thereafter, the land was also divided in two Block Numbers being Block Nos.17/4/A and 17/4/B and Entry No.2766 dated 05.03.2013 was also certified. Thus, he has submitted that after the petitioner was asked to carry out necessary procedure and accordingly, he has carried out the same. It is submitted that if the effect to Entry No.559 is not given, it would have an adverse effect on the title of the petitioner. Thus, he has submitted that the impugned orders of the respondent authority may be set aside. 9. Per contra, learned Assistant Government Pleader Mr.Shah has invited the attention of this Court to Entry No.559, which was certified on 29.01.1991 in view of the order passed by the Prant Officer, Gandhinagar. He has submitted that it was the duty of the petitioner to investigate before entering into any transaction in the land in question. 9.1 Learned Assistant Government Pleader Mr.Shah has further submitted that admittedly, by the order dated 07.11.1990, the land had vested in the State Government and hence, the petitioner cannot be allowed to take benefit of the same. He has also submitted that as per the observations made by the SSRD, it is always open for the petitioner to approach the concerned Collector for taking the benefit of the Circular dated 17.03.2017. 10. I have heard the learned advocates appearing for the respective parties. 11. The conspectus of the aforenoted facts would suggest that Entry No.559, which was mutated on 22.11.1990 in Village Form No.6 shows vesting of the land in question in the State Government. After the said order, various proceedings, as noted hereinabove, have been undertaken with regard to the land. Initially, the land bearing Survey No.17/4 paiki, admeasuring 12141 sq. mts. 11. The conspectus of the aforenoted facts would suggest that Entry No.559, which was mutated on 22.11.1990 in Village Form No.6 shows vesting of the land in question in the State Government. After the said order, various proceedings, as noted hereinabove, have been undertaken with regard to the land. Initially, the land bearing Survey No.17/4 paiki, admeasuring 12141 sq. mts. of Village Randesan, Taluka Gandhinagar, District Gandhinagar was originally allotted to one Shri Mansangji Chanduji by the order dated 11.04.1966 passed by the District Collector. Entry No.562 dated 01.12.1990, by which the name of legal heirs of late Mansangji Chanduji came to be entered into the revenue record. Entry No.903 dated 17.03.2001, by which the land in question was converted from new tenure to old tenure subject to premium for nonagricultural permission. Entry No.2187 was certified on 04.08.2010 pursuant to the registered sale deed made in favour of the present petitioner. Entry No.2766 dated 05.03.2013 by which the Block was further divided into two parts, i.e., 17/4/A and 17/4/B. Thereafter, the Block No.17/4/B was sold by the present petitioner in favour of Shri Ketan Pashabhai Patel and Pravinsinh Ishwarsinh Vaghela by way of registered sale deed and the aforesaid persons also transferred the land in question in favour of Shri Ganibhai Vadiya and Anjumbhai Ganibhai Vadiya by way of registered sale deed dated 28.03.2015 and an entry to the effect being Entry No.2970 was certified by the competent authority. After all these proceedings, the only Block No.17/4/A remained with the petitioner and accordingly, the petitioner applied for non-agricultural permission in the year 2018. Thus, after the petitioner applied for non-agricultural permission, it was thereafter noticed by the authorities that in fact Entry No.559 was never given effect to. The petitioner, thereafter, was advised to file an appeal against the order dated 07.11.1990 passed by the Deputy Collector and accordingly, the petitioner preferred Appeal No.CB/RTS/Randesan/Revision No.20 of 2018 under Section 203 of the Code before the District Collector. After the petitioner carried out the aforesaid proceedings, the revenue authority has recorded that Entry No.559 was not given effect. Entry No.3437 was certified in Village Form No.6 vesting the land in question to the State Government. Thus, from the year 1990, i.e., from the date of the order 07.11.1990 till 2019, Entry No.559 and the order dated 21.11.1990 was never acted upon. Entry No.3437 was certified in Village Form No.6 vesting the land in question to the State Government. Thus, from the year 1990, i.e., from the date of the order 07.11.1990 till 2019, Entry No.559 and the order dated 21.11.1990 was never acted upon. The petitioner has also issued a public notice before purchasing the aforesaid land and after obtaining a title clearance certificate, he has purchased the land. Hence, the status of the petitioner being a bona fide purchaser cannot be questioned. Thus, once it is established that the petitioner is the bona fide purchaser, he would be entitled for the benefits of the Circular dated 17.03.2017. The SSRD has also observed that the petitioner can approach the Collector since it is established that the petitioner is the bona fide purchaser, he may approach the concerned authority for paying necessary premium or any amount as he is ready and willing to pay so that the aforesaid lacuna may be removed. 12. Thus, the impugned orders are hereby quashed and set aside. As a sequel, Entry No.3437 dated 15.02.2018 is also set aside. The petitioner is directed to approach the concerned Collector in order to take benefit of the Circular dated 17.03.2017. The Collector is also hereby directed to treat the petitioner as a bona fide purchaser and accordingly, fix the necessary amount of premium or any other amount in order to give the benefit of the Circular dated 17.03.2017. Necessary orders in this regard shall be passed within a period of three months from the date of receipt of the order of this Court. The petition stands allowed accordingly. Rule made absolute.