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2022 DIGILAW 1020 (GUJ)

Vijabhai Pathubhai Suthar v. State Of Gujarat

2022-09-07

SANGEETA K.VISHEN

body2022
JUDGMENT : This Court, vide common oral judgment dated 10.10.2022, has disposed of writ petitions being Special Civil Application nos.2908 of 2014 and allied matters. The group of captioned writ petitions being identical, barring date of the orders passed by the revenue authorities, are also being disposed of by this common order. 2. Issue rule, returnable forthwith. Mr J.K. Shah, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents. 3. By these petitions, inter alia, under Article 226 of the Constitution of India, the petitioners, are seeking quashing and setting aside of the order dated 28.7.2014 passed by the Deputy Collector, Tharad as well as order dated 5.3.2016 passed by the Collector, Banaskantha at Palanpur whereby, the order of the Deputy Collector, directing vesting of the land in the State Government, has been confirmed. 4. Tersely stated are the facts as culled out from the lead matter being Special Civil Application no.7557 of 2016; except the villages and survey numbers, the facts involved in rest of the petitions are almost identical. 4.1. The ancestors of the petitioners were refugees and were allotted land situated at survey no.96 paiki at village Bambhansar, taluka Rapar, district Kachchh. Since the land was infertile, the ancestor of the petitioners (hereinafter referred to as “the allottee or the petitioners, wherever the context warrants”) did not take possession and requested the concerned authorities to allot the land at some other place. The petitioners were unable to find appropriate occupation in Rapar taluka, district Kachchh and shifted to village Tharad, district Banaskantha, where, the allottees were allotted the land in Santhani of survey no.23/1B/p for the purpose of rehabilitation, vide order dated 28.04.1988 (hereinafter referred to as “the land in question”). Since then, the allottees were residing at Tharad and have been cultivating the land in question. 4.2. Apropos the inquiry, the District Collector, Kachchh, passed an order dated 13.11.2013, directing restoration of the possession of the land, which was allotted at village Bambhansar, taluka Rapar, district Kachchh and the State Government so also, the Mamlatdar were directed to take possession. To the shock and surprise of the petitioners, a notice came to be issued under section 79A of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as the “Code”), requiring the petitioners to vacate the land in question at Tharad, district Banaskantha. 4.3. To the shock and surprise of the petitioners, a notice came to be issued under section 79A of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as the “Code”), requiring the petitioners to vacate the land in question at Tharad, district Banaskantha. 4.3. The petitioners appeared and pointed out that the land in question is the only source of livelihood of the petitioners which has been in their possession since last more than 27 years. The petitioners also pointed out that they have no interest in the land allotted at district Kachchh and urged that considering the condition of the petitioners, the proceedings under Section 79A of the Code, may be dropped, more particularly, in absence of any breach of conditions on their part. The Assistant Collector disregarding the request, passed an order dated 30.5.2012 as he was of the opinion that the petitioners were obliged to hand over the possession of the land at district Kachchh; however, they failed to do. Also, the land has been sold and therefore, the conditions enumerated in the allotment order of the year 1988 passed by the Collector, Tharad, have been breached. The Assistant Collector concluded that the petitioners have not got the land cancelled and availed of the benefits at two places and therefore, directed vesting of the land in the State Government. 4.4. Being aggrieved, an appeal was preferred before the Collector who, passed an order dated 8.5.2014 allowing the appeal and the matter was remanded to the Deputy Collector to decide it afresh. As a result whereof, the Deputy Collector, passed an order dated 28.7.2014 which, was challenged in appeal before the Collector who, passed an order dated 5.3.2016. Hence, the present writ petitions. 5. During the course of hearing of the captioned writ petitions, Mr Meet Kakadiya, learned advocate for Mr S.P. Majmudar, learned advocate for the petitioners has tendered the affidavit-cumundertaking in each of the petitions, on behalf of the petitioners. The same is directed to be taken on record. The contents of one of which, read thus: “1. I state that the petitioners have not availed any benefits from the land granted at Rapar Kachchh. It is further stated that in fact, the petitioners have not even taken possession of the said land at Tal: Rapar, Dist: Kachchh. The same is directed to be taken on record. The contents of one of which, read thus: “1. I state that the petitioners have not availed any benefits from the land granted at Rapar Kachchh. It is further stated that in fact, the petitioners have not even taken possession of the said land at Tal: Rapar, Dist: Kachchh. It is stated that the petitioners are not interested in the land situated at Tal: Rapar Kachchh and are only interested in the land situated at Vill: Tharad, Dist: Banaskantha where the petitioners have settled and are cultivating and using the same since 1988. 2. It is submitted that therefore, the petitioners undertake that they will not claim land at Tal: Rapar, Kachchh and furthermore, order of vesting such land in the Government has already been passed which has not been challenged and further that the petitioners have even earlier also availed no benefits from the said land at Tal: Rapar Dist: Kachchh.” 6. Mr Kakadiya, learned advocate, submitted that the petitioners, have not committed any breach of the conditions with respect to the land in question at Tharad and in absence of any breach, no order could have been passed by the Deputy Collector, holding that the petitioners have failed to place on record any evidence. The Collector, directed vesting of the land in the State Government, which would be legally impermissible. 6.1 It is submitted that the allottees, that is, ancestors of the petitioners of Special Civil Application no.2908 of 2014, in the year 2007, addressed the communication dated 2.1.2007 to the Mamlatdar, pursuant to the advertisement dated 27.8.2006 in Kachchh Mitra Dainik. It was brought to the notice of the authorities that the land at village Bambhansar is running in the name of the allottees and third parties are trying to illegally dispose of the land and therefore, necessary steps are required to be taken. It is submitted that the said communication was duly received by the authority concerned, followed by the another letter of the same date to the Collector wherein, it was also requested that the possession of the revenue record be taken and the same be sealed, as some illegal disposal of land is likely to take place. It is submitted that the said communication was duly received by the authority concerned, followed by the another letter of the same date to the Collector wherein, it was also requested that the possession of the revenue record be taken and the same be sealed, as some illegal disposal of land is likely to take place. The said letter was also sent through R.P.A.D. Again, in the year 2008, one of the allottees, that is, ancestors of the petitioner of Special Civil Application No.2903 of 2014 had addressed a letter to the Collector to take the steps so as to save illegal disposal of the land. It is submitted that no steps were taken and it was only in the year 2011, that the order has been passed by the Collector, Kachchh, directing vesting of the land in the State Government. 6.2. It is submitted that thereafter, the Collector, Kachchh, passed the order dated 13.11.2013 on the same lines and directed vesting of the land in the State Government. It is submitted that in the said order passed by the Collector, Kachchh, there is not a single allegation against the petitioners that they have played any mischief or have taken the benefits arising out of the land situated at Rapar. 6.3. It is next submitted that the said order dated 13.11.2013 of the Collector has attained finality and in absence of any allegations of mischief against the petitioners, order dated 28.7.2014 passed by the Deputy Collector, Tharad, holding that the petitioner has been unable to produce any evidence, would be unjust and illegal. It is submitted that everything was brought to the notice before the Collector by filing a revision application; however, the Collector, Banaskantha, disregarding the stand of the petitioners, mechanically passed an order, confirming the order of the Deputy Collector, Tharad. 6.4. It is submitted that when the Collector, Kachchh has passed an order, proceedings under Section 79A of the Code could not have been initiated by the Deputy Collector, Tharad and therefore, the order dated 28.7.2014 passed by the Deputy Collector and confirmed by the Collector vide order dated 5.3.2016, deserves to be quashed and set aside, the same being arbitrary, illegal and perverse. 6.5. It is submitted that the State Government, considering the condition of the petitioners, had formulated policy for grant of land to the refugees, who have migrated from Pakistan. 6.5. It is submitted that the State Government, considering the condition of the petitioners, had formulated policy for grant of land to the refugees, who have migrated from Pakistan. Once there was a beneficial policy floated, such a harsh action and that too, without there being any evidence, would be unjust and improper. It is submitted that bare perusal of the documents on record, clearly suggests that there is no breach committed by the petitioners; however, it is urged to condone the inadvertent lapse, as the land granted to the petitioners is the only source of livelihood and if the land is directed to be taken, the petitioners would be rendered landless. 7. On the other hand, Mr.J.K. Shah, learned Assistant Government Pleader tried to justify the order passed by the Deputy Collector as well as the Collector. It is submitted that the petitioners were initially granted the land at District: Kachchh. As the land was infertile, acceding to the request of the allottees, a decision was taken to allot the land at Tharad. It is submitted that there was an obligation on the part of the allottees to have returned the land; however, they did not take any steps and the land remained in their name and taking undue advantage of continuation of the names, that illegal transactions were executed which, severely affected the interest of the State Government. It is submitted that even the FIR has been registered with the concerned police station and the investigation is still under way. It is concluded by submitting that therefore, the orders of the Assistant Collector and the Collector do not warrant interference and the petition be not entertained. 8. Heard the learned advocates appearing for the respective parties and perused the documents available on record. 9. As is discernible from the record, approximately 42 families, being the refugees, were resettled at Kachchh and for the said purpose, the Assistant Collector has passed an order allotting the land. The land, since was infertile, it is the case of the petitioners that the possession of the land was not taken. Somewhere in the year 1988, the Assistant Collector, Tharad, in exercise of the powers conferred under the Code, passed an order allotting the government waste land of A 10 – 00 gunthas to each families. The land, since was infertile, it is the case of the petitioners that the possession of the land was not taken. Somewhere in the year 1988, the Assistant Collector, Tharad, in exercise of the powers conferred under the Code, passed an order allotting the government waste land of A 10 – 00 gunthas to each families. On the basis of the order of the Assistant Collector dated 28.04.1988, the Mamlatdar, Tharad, passed consequential order incorporating various terms and conditions. As per condition 10, the allottee was obliged to hand over the possession of the land of Santhani at taluka Rapar. Condition 11, was to the effect that if the breach is found of any of the conditions, the possession of the land would be taken by the State Government. It appears that the allottees, got settled at taluka Tharad and were in possession and cultivating the land in question. No steps were taken, either by the petitioners or by the revenue authorities, for handing over or taking over the possession of the land at district Kachchh. 10. Pertinently, as is discernible from the record, there were some illegalities committed by third parties, which led to an inquiry by the revenue authorities and as a result whereof, the orders were passed by the District Collector in the year 2011, directing vesting of the land in the State Government. On the basis of the order passed by the Collector, Kachchh, proceedings were initiated by the Assistant Collector, Tharad, which led to the passing of orders with respect to other villages. The said order, was unsuccessfully challenged before the Collector. A group of writ petitions, being Special Civil Application no.2898 of 2014 and allied matters, Special Civil Application no.2900 of 2014 and allied matters and Special Civil Application no.2908 of 2014 and allied matters were filed before this Court. The said writ petitions, have been disposed of by separate common judgments dated 7.9.2022 and 10.10.2022 respectively. In the common judgment passed in Special Civil Application no.2900 of 2014 and allied matters, this Court, has observed thus:- “9. Perceptibly, till the year 2011, the land continued to remain in the name of the allottee/petitioners. During the year 2011, it came to the notice of the revenue authorities that the land, which was granted on new and impartible tenure, has been sold in favour of some third parties. Perceptibly, till the year 2011, the land continued to remain in the name of the allottee/petitioners. During the year 2011, it came to the notice of the revenue authorities that the land, which was granted on new and impartible tenure, has been sold in favour of some third parties. As a result whereof, the report was prepared by the Mamlatdar and the proceedings were initiated, which, culminated into passing of the order dated 5.7.2011 by the Collector, Kachchh. The Collector, Kachchh passed an order and directed the land to be vested in the State Government with a further direction to the Mamlatdar to take over the possession. The premise on which the order has been passed by the Collector, is that the benefits have been taken by the allottee at two places. The Collector, called for the report of the Assistant Collector, and as per the report dated 4.5.2011, there was a breach of the conditions by the allottee. Hearing, took place before the Collector and the heirs of the allottee remained present and showed willingness that if the land is taken back they have no objection. The statement was recorded of the heirs and/or representatives, that they were not aware about the fact of land in question running in their name. The Collector, after considering the stand of the allottee, categorically recorded that refugees, were granted land on a new tenure basis and some of whom had shifted to taluka Tharad. The Collector, also noted that after the allottee had shifted, the land came to be allotted to him at taluka Tharad and in the order passed allotting the land at taluka Tharad, certain conditions were incorporated. As per the conditions 10 and 11, the possession of the land was to be handed over to the State Government. The Collector; however, observed that no steps have been taken by the allottee. The Collector, also recorded that there appears to be some communication gap between two offices namely office at taluka Rapar, district Kachchh on one hand and the office at taluka Tharad, district Banaskantha on the other. Since the allottee, agreed for vesting of the land in the State Government, the Collector directed the Mamlatdar to take the possession. 10. The Collector, also recorded that there appears to be some communication gap between two offices namely office at taluka Rapar, district Kachchh on one hand and the office at taluka Tharad, district Banaskantha on the other. Since the allottee, agreed for vesting of the land in the State Government, the Collector directed the Mamlatdar to take the possession. 10. With the aforesaid observations, the Collector, passed an order dated 5.7.2011 whereby, the land in question was directed to be vested in the State Government; with a further direction to the Mamlatdar, Rapar to take over the possession. Clearly, the order passed by the Collector, does not suggests that there was any malafide intention on the part of the allottee to take advantage or undue benefit of the lands at both the places namely at taluka Rapar, district Kachchh and the land at taluka Tharad, district Banasktantha. It is not even the case of the revenue authorities, that any mischief has been played by the allottee and by doing so, the allottee, knowingly took advantage. On the contrary, as is discernible from the order of the Collector, Kachchh, the allottee, had extended consent to hand over the possession. It appears that the allottee, was not aware about the procedure to be followed for handing over the possession. Mere continuation of names in the revenue record, it cannot be said that benefits have been taken by the allottee at both the places i.e. at Rapar as well as at Tharad. Therefore, from the contents of the order of the Collector, Kachchh, it is difficult to conclude that there was any malafide or ill intention on the part of the allottee to have continued with the possession at Rapar. Moreover, nothing has been placed on record to suggest that the petitioners have enured any benefits by cultivating the land, both at talukas Rapar and Tharad. Also, nothing has been placed on record to suggest that after the order was passed in the year 1988 allotting the lands, that the authorities at Rapar have taken any steps. Having not taken any steps and then to find exclusive fault of the allottee/petitioners would not be proper. 11. Also, nothing has been placed on record to suggest that after the order was passed in the year 1988 allotting the lands, that the authorities at Rapar have taken any steps. Having not taken any steps and then to find exclusive fault of the allottee/petitioners would not be proper. 11. Adverting to the order which has been passed by the Assistant Collector, Tharad, it is required to be noted that the Assistant Collector has stated the facts in the first paragraph and in the operative portion, has made reference to the order dated 5.7.2011 of the Collector. On the basis of the contents of the order of the Collector dated 5.7.2011, the Assistant Collector, had concluded that there is a breach of conditions 4, 10 and 11, (in some of the cases only condition 10 and in some of the cases conditions 10 and 11) and therefore, the Assistant Collector, directed handing over the possession of the land allotted of the Village Tharad. The Assistant Collector also had concluded that the allottee/petitioners have taken the dual benefits by committing an irregularity; however, there is nothing recorded in the order as to how the allottee/petitioners, have taken the dual advantage by committing any irregularity or illegality. In the opinion of this Court, when, there is nothing placed on record to substantiate that the allottee, intentionally or otherwise has taken the benefit by committing any irregularity, findings recorded by the Assistant Collector would be perverse and illegal. It is required to be noted that the Assistant Collector, Tharad was of the opinion that the allottee, has taken the benefit; however, the order, is silent about the so called undue benefits enured by the allottee. Pertinently, what has been alleged by the Assistant Collector is breach of conditions 4, 10 and 11. The said conclusion, is on the basis of the order passed by the Collector, Kachchh dated 5.7.2011; however, in the order of the Collector Kachchh, there is not a whisper that the petitioner committed a mischief or the irregularity. Hence, in the opinion of this Court, the order of the Assistant Collector, Tharad, cannot be countenanced. 12. The petitioners, being aggrieved, have preferred an appeal before the Collector, Tharad who, passed an order dated 24.12.2013; however, the Collector, also failed to appreciate the factum about the benefits which have been taken by the allottees. Hence, in the opinion of this Court, the order of the Assistant Collector, Tharad, cannot be countenanced. 12. The petitioners, being aggrieved, have preferred an appeal before the Collector, Tharad who, passed an order dated 24.12.2013; however, the Collector, also failed to appreciate the factum about the benefits which have been taken by the allottees. It is required to be noted that the order of the Collector, is running into four paragraphs. In paragraph 1, it has only given the details of the proceedings, followed by the paragraph wherein, the contentions of the petitioners have been recorded. In unnumbered paragraph 3, the Collector, took note of the fact of allotment of the land on new and impartible tenure. In the penultimate paragraph, the Collector, while taking note of the order dated 5.7.2011 passed by the Collector, Kachchh as well as the order dated 30.5.2012 passed by the Assistant Collector, straightaway concluded that there is a breach of condition. Clearly, the order of the Collector, is bereft of any reasons. 13. In the case of Kranti Associates (P) Ltd. v. Masood Ahmed Khan reported in (2010) 9 SCC 496, the Apex Court, has laid down the principle for recording the reasons. It has been held and observed that the reasons, have virtually become an indispensable component of the decision making process observing principles of natural justice by judicial, quasi judicial and even by the administrative bodies. That reasons facilitates the process of judicial review by the superior courts. It is well settled proposition of law that when the administrative, judicial or quasi judicial authorities are passing any orders, the orders has to be a reasoned order. Any unreasoned order, would be in violation of principles of natural justice. Therefore, it was expected of the Collector, to have assigned the reasons. The order therefore is passed in violation of principles of natural justice. 11. In the present case, the Collector, Kachchh, has passed an order dated 13.11.2013. The Collector, has noted the facts about allotment in the year 1988. Also the fact that the allottees have not taken any steps and their names continued in the revenue record. With respect to the lands in the districts of Kachchh and Banaskantha, the Collector was also of the opinion that the allottees, have taken dual benefits. The Collector, has noted the facts about allotment in the year 1988. Also the fact that the allottees have not taken any steps and their names continued in the revenue record. With respect to the lands in the districts of Kachchh and Banaskantha, the Collector was also of the opinion that the allottees, have taken dual benefits. It is also recorded in the order that there appears to be communication gap between the two offices of the districts, namely, Kachchh and Banaskantha. The Collector, was of the opinion that the allottees have committed breach of condition 10 and therefore, directed vested of the land of Kachchh in the State Government. 12. On the basis whereof, the Assistant Collector, Tharad, in the first instance, has passed an order dated 30.5.2012, directing vesting of the land, which was challenged before the Collector and the Collector, remanded the same. In remand, the Deputy Collector, passed an order dated 28.7.2014, making reference to the proceedings before this Court being Special Civil Application nos.2898, 2899 to 2912 of 2014, 2304 of 2014 and allied matters. The Deputy Collector, was also of the opinion that the allottees have not placed on record any evidence and having failed to do so, the land was directed to be vested in the State Government. In the order of the Deputy Collector, there is a specific reference of the application by the allottees to the Mamlatdar as well as the M.L.A. in the year 2007. The Deputy Collector, recorded that the alleged illegality was within the knowledge of the revenue authorities, but the Mamlatdar, Rapar, has not taken any steps. Reference is also made about the sale of the land of the allottees of Bambhansar and therefore, the Deputy Collector, observed that it is difficult to believe that the said illegality was not within the knowledge of the allottees. The Deputy Collector, therefore, concluded that the allottees have taken a dual benefit which aspect has been acknowledged by the Collector in order dated 13.11.2013. Hence, the Deputy Collector, directed vesting of the land in the State Government and the said order, was confirmed by the Collector vide order dated 5.3.2016. 13. Pertinently, this Court, while allowing the writ petition being Special Civil Application no.2908 of 2013, has considered the aspect about the knowledge and inaction on the part of the revenue authorities. Hence, the Deputy Collector, directed vesting of the land in the State Government and the said order, was confirmed by the Collector vide order dated 5.3.2016. 13. Pertinently, this Court, while allowing the writ petition being Special Civil Application no.2908 of 2013, has considered the aspect about the knowledge and inaction on the part of the revenue authorities. Perceptibly, it was the allottees, who have brought it to the notice of the revenue authorities about the illegality or the illegal transaction. The submissions of filing of the first information report on behalf of the State Government, is also misconceived for, the first information report has not been lodged by the State Government, but by the private parties against the persons, who have executed the illegal transaction. The Deputy Collector and the Collector, failed to consider the said aspect and committed the similar error, which has been committed by the Assistant Collector and the Collector in passing orders and directing vesting of the land in the State Government. This Court, has quashed and set aside the orders passed by the Assistant Collector, Tharad and Collector, Banaskantha and therefore, the issue being identical and the orders have been passed by the Deputy Collector and Collector on same lines, they also deserve to be quashed and set aside. 14. While concluding, it is pertinent to note that the land was granted in favour of the allottee with a laudable object of resettling the refugees. Since the land, was found to be infertile, the allottee did not take the possession; however, the name of the allottee continued in the revenue record. While acceding to the request of the allottee for grant of an alternate land, that a decision came to be taken in the year 1988 for allotment of the land at district Banaskantha and as a result whereof, the orders have been passed incorporating various conditions, one of which, is condition 10. According to which, as discussed hereinabove, there was an obligation on the part of the allottee to have handed over the possession; however, it appears that the allottee was unaware about the consequential steps to be taken. Therefore, the said ignorance on the part of the allottee/petitioners, cannot entail such a harsh action of taking away the livelihood. Even otherwise, the object with which the land has been granted was to resettle and rehabilitate the refugees. Therefore, the said ignorance on the part of the allottee/petitioners, cannot entail such a harsh action of taking away the livelihood. Even otherwise, the object with which the land has been granted was to resettle and rehabilitate the refugees. Therefore, decision of the Deputy Collector, Tharad dated 28.7.2014, would run counter to the policy with which, the land came to be granted in favour of the allottees. Therefore, on all the counts viz. considering the object with which the land was granted and the nature of the lapse which is being alleged to have been committed by the allottee/petitioners, so also on the ground of the orders being unreasoned and in violation of the principles of natural justice, the order of the Deputy Collector, Tharad dated 28.7.2014 as well as the order dated 5.3.2016 passed by the Collector, Kachchh, deserve to be quashed and set aside and are hereby quashed and set aside. 15. Accordingly, the petitions are allowed. Rule is made absolute. No order as to costs.