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2021 DIGILAW 631 (GUJ)

PATEL BABUBHAI DHULABHAI v. STATE OF GUJARAT

2021-07-27

VINEET KOTHARI

body2021
ORDER : 1. This writ petition is directed against the order dated 19.03.2007 / 26.03.2007 passed by the the Principal Secretary (Litigation) (Mr. Haresh Patra) rejecting the revision application filed by the Petitioners which was directed against the order dated 21.07.2000 / 03.08.2000 passed under Rule 108(6)A of the Bombay Land Revenue Code, rejecting the revision application filed by the petitioners. 2. The dispute is with regard to Survey No.739 (Old Survey No.75), situated at Mouje: Balasinor, Taluka: Balasinor as claimed by the Petitioners and City Survey No.1029 as indicated in the Map at Annexure-H produced by the Petitioners. The Petitioners claim that they were fetching water from the Well in Survey No.739 and between Survey No.739 (Old Survey No.75) and City Survey No.1029, a 12 mtrs. wide road was laid by the concerned Government Authorities and the Petitioners were prevented from fetching the water from the Well in Survey No.739 and hence, the dispute arose. All the three authorities unfortunately rejected the contentions of the Petitioners by non-speaking orders. 3. The relevant extracts of the said orders in vernacular are reproduced hereinbelow for ready reference: (i) “Order of the Deputy Collector, Nadiad dated 26.07.1999 “xxxxxxxxxxxxxxxx” English Translation (by learned Assistant Government Pleader) “Having considered the contents of the appeal memo, arguments of the parties along with evidences presented by them and the record pertaining to the dispute of the concerned office, it arises that, this appeal has been preferred against the decision by which it has been held that the Well on S. No. 739 is part of the public street. The case, at a point in time, was remanded to establish the ownership and possession of the well, however at the time of hearing, no evidences by either parties have been produced. On the date of registration of the appeal memo i.e. 26.03.1996, the copy of the patrabook of R.S. No. 739 old Survey No. 75/1p, given by the Assistant District Land Allotment Office, shows that the said patrabook dates to 24.03.1917, in which it is shown that the well is on the public street. Also on page 2 of the will dated 22.02.1927, where the boundaries of S No. 739 are described, where, the well is stated to be on the south of Survey No. 739. It thus is established that the Well is not on Survey No.739. Also on page 2 of the will dated 22.02.1927, where the boundaries of S No. 739 are described, where, the well is stated to be on the south of Survey No. 739. It thus is established that the Well is not on Survey No.739. Under the circumstances it is established that the Well is not on S No. 739 but is a part of the public street and to that extent the order of the subordinate authority is just and proper. The application is therefore dismissed. The following order is hence passed. ORDER The application of the applicants is dismissed. As per the discussion made above, the order dated 26.07.1997 of the subordinate authority is upheld. Order to be communicated to the parties in writing, Signed and stamped on this dated 26.07.1999 Sd/- (Kamal N. Shah) Deputy Collector, Nadiad” (ii) Order of the Collector, Kheda dated 21.07.2000 / 03.08.2000 “xxxxxxxxxxxxxxxxxxxx” English Translation (by learned Assistant Government Pleader) “Having considered the case papers, contents of the application written submissions and written arguments of the Opponents No. 4 and 5 respectively, it appears that City Survey of Balasinor was held in 1964-1965. Revenue Survey No. 739 was given City Survey No. 3268 as can be noticed from the record of the Dy. Collector on bearing a map on Page 77. This dispute was first raised before the Dy. Collector Anand, by the opponent no. 5 on 17.08.1995, when the Dy. Collector had held that the well and the land appurtenant to the well was declared a public street, however the case was remanded on a technical ground that though such position was consistent with the revenue record, such revenue record was not kept with such declaration. Thus a fact declared in 1964 post inquiry was vitiated by a remand after a considerable period which ought not to have done and which has given rise to a litigation. None of the parties (except Opponent no. 4) have placed any reliable evidences establishing there rights over the well. Dy. Collector’s record on Page 70 depicts a map from which it is clear that the well and the land appurtenant thereto forms to be a part of the public street. Additionally, the City Survey Suprintendent in his order dated 23.07.1997 in his remand case No. 9/95-96 has held that the boundaries have become final on the basis of scrutiny of 1857. Additionally, the City Survey Suprintendent in his order dated 23.07.1997 in his remand case No. 9/95-96 has held that the boundaries have become final on the basis of scrutiny of 1857. Thus the well is used as a part of the public street and therefore neither the applicant’s nor the opponent no. 5s arguments are tenable, and therefore the order of the Deputy Collector, deserves to be upheld. Hence ordered as under. ORDER Application of the applicant is dismissed. Order of the Dy. Colector dated 26.07.99 passed in CTS Appeal No. 64/98 and 66/98 is upheld. Parties to the proceedings be communicated the order in writing. Signed and stamped on this dated 21/07/2000. Sd/- (Bhagyesh Jha) District Collector Kheda, Nadiad” (iii) Order of the Principal Secretary (Litigation) dated 19.03.2007 / 26.03.2007 “xxxxxxxxxxxxx” English Translation (by learned Assistant Government Pleader) “Having considered the facts borne out from the revision application of applicant, arguments of their advocate, written arguments of the Opponent No. 5, the order impugned passed by the Collector, and the original record of the case availed from the concerned office, it is noticed that, the dispute arises owing to the order of the Inquiry officer in the findings whereof a Well situated on Survey No. 739 of Village & Taluka Balasinor has been held to be a public street. Concurrently, the Deputy Collector Anand/Nadiad, the Collector Kheda, and the Collector Kheda in his last order dated 21/07/2000 / 03/8/2000 have rejected the revision application of the present applicant. The City Survey Superintendent in his remand case No. 9/95-96 vide order dated 23/07/97 has clearly held that in the scrutiny of 1957 the boundaries have been demarcated, and that it has been used as a public street. Under the circumstances, the arguments of the Opponent No. 5 is not tenable. Dy. Collector, Nadiad has stated as such in detail in his order dated 29/07/1999. Order impugned of the Collector upholding the said order of the Dy. Collector, does not deserve to be interfered with. Moreover, the interveners who desired to be joined as parties to the present lis were informed of the hearing of the present case on 14/02/2007 despite which they have not appeared and therefore it is inferred that they are no longer interested. Hence the following order is passed. Collector, does not deserve to be interfered with. Moreover, the interveners who desired to be joined as parties to the present lis were informed of the hearing of the present case on 14/02/2007 despite which they have not appeared and therefore it is inferred that they are no longer interested. Hence the following order is passed. ORDER Revision application of the applicant and application for joining party of the intervenor Patel Jayantibhai Mangalbhai is dismissed. Order of the Collector Kheda No. CTS/RA/8/99 and 9/99 dated 22.07.2000- 03.08.2000 is upheld. Signed and stamped on this date 19.03.2007. In the name and under the orders of the Governor of Gujarat State (Haresh Patra) Principal Secretary (Disputes)” 4. The Petitioners in this case have raised following grounds before this Court: “(c) The petitioners humbly submit that the petitioners approached the City Survey Superintendent, Balasinor raising the grievance that they are in possession of the land in question and even the revenue record reflects the name of Shankarbhai Ranchhodbhai and others. It was brought to the notice of the authority that Shantibhai Motibhai Patel is not owner of the said well. The authorities below have not considered documentary evidence before rejecting the claim of the petitioners. (d) The petitioners humbly submit that the petitioners are using water from the said well and are in possession of the said well since last several decade. Even the forefathers of the petitioners have also laid down the pipelines across the road to fetch water from the said well for irrigation. This aspect has also not been considered by the authority. (e) The petitioners humbly submit that the petitioners also produced the Pani Patrak for the land in question. The authorities below have not considered the Pani Patrak which would clearly establish that the land in question where the well is situated is of the ownership of the petitioners. Copy of the Pani Patrak-A is annexed hereto and marked as Annexure-F to this petition.” 5. Mr. Premal R. Joshi, learned counsel for the Petitioners submitted that since non-speaking findings have been given by the Authorities below without assigning any cogent reasons and findings properly, the matter deserves to be remanded back to the Lower Authority viz. City Survey Superintendent, Balasinor – Respondent No.4 before this Court to re-examine the whole issue and since the matter is very old, the matter deserves to be decided expeditiously again. 6. City Survey Superintendent, Balasinor – Respondent No.4 before this Court to re-examine the whole issue and since the matter is very old, the matter deserves to be decided expeditiously again. 6. On the other hand, Mr.K.M. Antani, learned Assistant Government Pleader submitted that though the earlier round of litigation has been done before the Authorities and in the absence of any cogent evidence, the Well was not located in Survey No.739 but on a public street and therefore, the Petitioners were not entitled to fetch water from the same. 7. Having heard learned counsel for the parties and upon perusal of the documents as well as Map, this Court is of the opinion that the findings of lower authorities are laconic and non-speaking and therefore, the matter deserves to be remanded back to the First Authority again. The contention of the learned Assistant Government Pleader that the ‘Well’ was constructed on the public road and even if the Well is constructed later on or earlier point of time, a public road cannot be laid over a Well. Therefore, the Well has to be on the side of the public way. Without going into the merits of the rival contentions, the findings of the Lower Authority deserve to be given again properly after a physical survey of the site again. The Petitioners’ contention that they were drawing water for last large number of years and even now, a physical report with respect to the land is required to be made. Therefore, after allowing opportunity of hearing to the Petitioners and making a physical survey of the land, the matter may be decided again in accordance with law. Accordingly, the matter deserves to be remanded back to Respondent No.3 Deputy Collector, Nadiad, District: Kheda who may after obtaining suitable report from Respondent No.4 City Survey Inquiry Officer, Balasinor, District: Kheda, he may pass an appropriate order in accordance with law after giving opportunity of hearing to the Petitioners. 8. Accordingly, the Writ Petition is allowed and setting aside order of the Principal Secretary (Litigation) dated 19.03.2007 / 26.03.2007, the order of the Collector, Kheda dated 21.07.2000 / 03.08.2000 as well as the order of the Deputy Collector, Nadiad dated 26.07.1999, the matter is remanded back. 8. Accordingly, the Writ Petition is allowed and setting aside order of the Principal Secretary (Litigation) dated 19.03.2007 / 26.03.2007, the order of the Collector, Kheda dated 21.07.2000 / 03.08.2000 as well as the order of the Deputy Collector, Nadiad dated 26.07.1999, the matter is remanded back. In view of the matter being very old, it is directed that the fresh order by the Deputy Collector may be passed within a period of six months from today. Without any further notice, the parties may appear before the Deputy Collector, Kheda in the first instance on 10.08.2021 at 11.00 a.m. No costs.