Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 1644 (GUJ)

COLLECTOR v. HARIJAN DANA LAKHU

2022-11-29

ARAVIND KUMAR, ASHUTOSH J.SHASTRI

body2022
JUDGMENT : ARAVIND KUMAR, J. 1. The State has questioned the correctness and legality of the order dated 8.9.2016 passed in Special Civil Application No. 3254 of 2001 and Special Civil Application No. 3258 of 2001. The land bearing Survey Nos. 192, 146, 216, 147, 120, 760, 742, 748, 641 and 300 of Village: Padana, District: Jamnagar were declared as surplus by order of Mamlatdar dated 23.11.1980 under Section 21 of the Gujarat Agricultural Lands Ceiling Act (hereinafter referred to as ‘Ceiling Act’) in Case No. 41 of 1976. Said order was challenged before the Deputy Collector who by order dated 13.9.1982 remanded the matter back to the Mamlatdar and he confirmed the same. Respondent No. 5 who were the erstwhile owners filed an appeal before the Deputy Collector which came to be dismissed vide order dated 4.2.1983 and the revision application preferred before the Gujarat Revenue Tribunal against the order dated 4.2.1983 was dismissed vide order dated 6.2.1985. Special Civil Special Civil Application No. 3185 of 1986 filed before this Court challenging the same ended in its dismissal dated 25.6.1986 and was confirmed by the Hon’ble Apex Court by order dated 23.2.1987 passed in Special Leave Petition No. 7592 of 1986. Thus, the claim of respondent No. 5 viz. erstwhile owners insofar as declaration of surplus land had attained finality. Thus, the lands vested with the government free from all encumbrances as prescribed under Section 29 of the Ceiling Act with effect from 2.12.1988. 2. By virtue of the excess land having vested in the State, an order came to be passed by the Assistant Collector on 31.3.1989 distributing the excess land in favour of the writ applicants which order contemplated that allottees should file an undertaking in accordance with the Gujarat Land Revenue Rules, 1972 and on such undertaking being filed, the mutation entry was carried in Form No. 7/12 in favour of the writ applicants and accordingly, the entries were made and possession of the lands was also handed over to the writ applicants. These aspects were not seriously disputed by the learned Assistant Government Pleader. Against the order of the allotment made in favour of the writ applicants, respondent No. 5 filed an appeal before the Collector in Appeal Case No. 1 of 1989 which came to be dismissed on 21.8.1989. These aspects were not seriously disputed by the learned Assistant Government Pleader. Against the order of the allotment made in favour of the writ applicants, respondent No. 5 filed an appeal before the Collector in Appeal Case No. 1 of 1989 which came to be dismissed on 21.8.1989. Being aggrieved by the said order, respondent No. 5 challenged the said order before the Special Secretary, Revenue Department who allowed the revision by order dated 15.3.1991. This was challenged by the writ applicants in Special Civil Application No. 2710 of 1995 which was allowed by order dated 15.2.1993 and the order dated 15.3.1991 passed by the Special Secretary, Revenue Department was set aside with a direction to the Special Secretary, Revenue Department to hear the petition and pass fresh orders since the writ applicants contended that they were not joined as parties in the said proceedings. Thereafter the Special Secretary, Revenue Department passed a fresh order on 13.2.2001 by observing that the writ applicants had not paid the occupancy price which they ought to have filed as per the undertaking given under the Gujarat Land Revenue Rules, 1972. Being aggrieved by the said order, the writ applicants filed Special Civil Application No. 3254 of 2001 and Special Civil Application No. 3258 of 2001 challenging the order of Special Secretary, Revenue Department dated 13.2.2001, which was allowed by the learned Single Judge by order dated 8.9.2016. Hence, this intra-court appeal. 3. It is pertinent to observe at this juncture itself that certain lands declared as excess came to be acquired for the benefit of Reliance Industries by issuance of notification dated 15.2.1993 under Section 4, followed by declaration under Section 6 dated 18.5.1994, which ultimately resulted in an award being passed on 12.12.1994 and possession of the lands were taken from the writ applicants. The said beneficiary of the acquisition namely, Reliance Industries filed Civil Application No. 6333 of 2001 in Special Civil Application No. 3254 of 2001 for being impleaded as respondent which came to be dismissed and yet again another Civil Application No. 10807 of 2014 was filed which came to be withdrawn as not pressed by the said Reliance Industries. Challenging the order dated 8.9.2016 passed in Special Civil Application No. 3254 of 2001 and Special Civil Application No. 3258 of 2001, respondent No. 5 filed Letters Patent Appeal No. 360 of 2017 which was withdrawn on 8.3.2017. Challenging the order dated 8.9.2016 passed in Special Civil Application No. 3254 of 2001 and Special Civil Application No. 3258 of 2001, respondent No. 5 filed Letters Patent Appeal No. 360 of 2017 which was withdrawn on 8.3.2017. In fact, two applications viz. Misc. Civil Application No. 11108 of 2016 and Misc. Civil Application No. 3390 of 2016 were filed seeking review of the order passed in Special Civil Application No. 3254 of 2001 and Special Civil Application No. 3258 of 2001 which came to be dismissed as withdrawn, vide order dated 21.11.2016. These orders have attained finality. The common order passed by the learned Single Judge on 8.9.2016 which has been challenged in this appeal is assailed by the State on the ground that the land which has been acquired for the benefit of Reliance Industries is a government land which had been declared as surplus vacant land under the Ceiling Act and same had been allotted to respondent Nos. 1 to 4 for personal cultivation on permanent basis upon payment of occupancy price, which was never paid as reflected in the judgment under challenge and as such contending that original order of granting land in question is ab initio void and non est order passed by appropriate government and hence, he contends that the order of the learned Single Judge which seems to have been passed on the basis of concession made by learned advocate appearing for the writ applicants requires to be set aside. He would further contend that learned Single Judge ought to have appreciated that revenue records reflected the name of respondent Nos. 1 to 4 herein viz. writ applicants. When the order of allotment itself was void, there was no right created in favour of the writ applicants. Hence, he would submit that order of the learned Single Judge is liable to be set aside. He would further contend that fixing of the price retrospectively is only to permit the writ applicants to avail benefit of compensation of land though not paid by the allottees of the surplus land and as such the order of the learned Single Judge is liable to be quashed and set aside. He would further contend that fixing of the price retrospectively is only to permit the writ applicants to avail benefit of compensation of land though not paid by the allottees of the surplus land and as such the order of the learned Single Judge is liable to be quashed and set aside. He would submit that revenue entries made in favour of the writ applicants would not clothe them with any right, particularly when the order dated 31.3.1989 has been set aside by the Special Secretary, Revenue Department on 15.3.1991 and as such the revenue entry which was made pursuant to the order of the Assistant Collector, Jamnagar is non est. Hence, he prays for appeal being allowed and Special Civil Application being dismissed. 4. Per contra, Mr. Vin, learned advocate appearing for the writ applicants would support the impugned order and prays for the appeal being dismissed. 5. Having heard the learned advocates appearing for the parties and on perusal of records, it would clearly disclose that in the order dated 31.3.1989 passed by the Assistant Collector allotting or disbursing the land in favour of the writ applicants, it has been clearly held that said allotment would be subject to an undertaking given by the writ applicants in Form No. 1(1) as prescribed under the Gujarat Land Revenue Rules, 1972 and undisputedly undertaking came to be given by the allottees on 1.6.1989. It is pursuant to the same that Form No. 7/12 was issued with entries in Form No. 6 in favour of the writ applicants. The said entries made in the record of rights disclose possession and the land was handed over to the petitioner which is not seriously disputed by the learned Assistant Government Pleader, though respondent No. 5, i.e. erstwhile owner also attempted to challenge the said order has been unsuccessful and his right if any to the land having stood extinguished by virtue of the order dated 13.9.1982 being confirmed by the Hon’ble Apex Court in Special Leave Petition No. 7592 of 1986 vide order dated 23.2.1987. Hence, we are of the considered view that right of respondent No. 5 even if any had stood wiped out. Hence, we are of the considered view that right of respondent No. 5 even if any had stood wiped out. In fact, his challenge laid by questioning the order dated 31.3.1989 passed by the Assistant Collector allotting the land in favour of the writ applicants also having failed in Letters Patent Appeal No. 360 of 2017 and the review applications also having withdrawn, nothing remained for respondent No. 5 to espouse the cause even if any. 6. The writ applicants having challenged the order of the Special Secretary, Revenue Department dated 13.2.2001 in Special Civil Application No. 3254 of 2001 and Special Civil Application No. 3258 of 2001 successfully, would not call for interference at our hand and since the writ applicants have already given the undertaking pursuant to the order dated 31.3.19189 under which the order the revenue authority was required to fix the occupancy price which undisputedly had not been done. As to the reasons for having not undertaken such an exercise, no material is placed by the State. Mere pendency of proceeding with regard to the mutation entry would not clothe the State to contend at this length of time that there was no necessity for the revenue authority to pass an order fixing the occupancy price which ought to have been done. Had the State undertaken such an exercise, fixed the occupancy price and had called upon the writ applicants to pay the same and same had not been paid, the contours of this appeal would have got completely changed. In other words, the writ applicants would not have been entitled to contend that still they are entitled to stake their claim over the land or for the compensation on account of said land having been acquired. It is on account of revenue authorities having failed to perform their statutory duty by not fixing the occupancy price and for the first time the Special Secretary, Revenue Department while examining the correctness of the order dated 31.3.1989 raised an issue with regard to non-payment of occupancy price. Said order has been rightly set aside by the learned Single Judge. In other words, the observations made by the Special Secretary, Revenue Department in the order dated 13.2.2001 with regard to nonpayment of occupancy price was after 12 years from the date of order allotting / disbursing on 31.3.1989 in favour of the writ applicants. Said order has been rightly set aside by the learned Single Judge. In other words, the observations made by the Special Secretary, Revenue Department in the order dated 13.2.2001 with regard to nonpayment of occupancy price was after 12 years from the date of order allotting / disbursing on 31.3.1989 in favour of the writ applicants. It has been the consistent stand of the writ applicants that they were and are ready and willing to pay the occupancy price and but for non-quantification of the said amount, the same had not been paid. This contention raised by petitioners before the learned Single Judge has been rightly accepted inasmuch as State and its authorities having failed to pass an order fixing occupancy price and calling upon the writ applicants to pay the said amount would not be entitled to now contend that learned Single Judge could not have issued a writ of mandamus directing the authorities to fix the occupancy price, particularly when the writ applicants having lost their right, title and interest over the subject land by virtue of the acquisition proceedings. However, the fact remains that the revenue records clearly reflects name of the writ applicants as owners and occupiers of the land. There is also no dispute by the State that writ applicants were in possession and enjoyment of the subject land till they were divested of their possession by virtue of the acquisition proceedings initiated under the Land Acquisition Act for the benefit of Reliance Industries. Hence, State cannot now contend that on account of the petitioners having been divested of the possession of the subject land would not be entitled to seek for regularisation of their possession which otherwise would have taken place in the normal course. The learned Single Judge has also taken note of the fact that on account of non-passing of the order fixing the occupancy price, the writ applicants would be required to pay interest on the price that would be so determined. Mr. Vin, learned advocate appearing for the petitioners has reiterated and submitted before this Court that claim of the petitioners even if any would only be restricted for seeking payment of compensation and not for possession of the subject land which has now been delivered to Reliance Industries Limited on account of the said land having been duly acquired. Mr. Vin, learned advocate appearing for the petitioners has reiterated and submitted before this Court that claim of the petitioners even if any would only be restricted for seeking payment of compensation and not for possession of the subject land which has now been delivered to Reliance Industries Limited on account of the said land having been duly acquired. It is also stated by him that writ applicants are not assailing the acquisition proceedings in any manner whatsoever. His submission and undertaking is placed on record. In that view of the matter, order passed by the learned Single Judge deserves to be affirmed. Hence, we proceed to pass following: ORDER: (i) Letters Patent Appeal No. 975 of 2018 stands dismissed. (ii) The order of the learned Single Judge dated 8.9.2016 passed in Special Civil Application No. 3254 of 2001 stands confirmed. (iii) No order as to costs. (iv) Civil Applications have already been allowed by order dated 25.6.2018. Hence, applications do not survive.