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2024 DIGILAW 2012 (GUJ)

Becharbhai Dhanrajbhai Anjana v. State Of Gujarat

2024-10-30

PRANAV TRIVEDI, SUNITA AGARWAL

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JUDGMENT : (PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL) This intra-court appeal is directed against the judgment and order dated 13.08.2013 passed by the learned single Judge in dismissing the writ petition with the cost of Rs. 25,000/-. 2. The relevant facts to adjudicate the controversy, at hands, as narrated in the writ petition, are that the grand-father of the petitioner Nos. 1 and 2 namely late Dhanrajbhai Hathibhai and the grand-father of respondent No.3 (originally impleaded through his heirs and legal representatives) namely Dahyabhai Lalabhai (called as Lala Harkha) were cultivating the land bearing Survey No. 86 of mouje Jalotra on Eksali lease basis, separately. The part of the land bearing Survey No. 86, which was being cultivated by the grand-father of the petitioners has been mentioned being known as Survey No. 86/1, whereas the remaining part of the land, cultivated by late Lala Harkha, is mentioned as being known as 86/2. It is stated that the actual measurement of Survey No. 86 was 29 Acres 4 Gunthas (29.04). 3. The contention in the writ petition is that vide order dated 29.10.1955, the Prant Officer, Palanpur granted the land bearing Survey No. 86/2 on permanent basis to late Lala Harkha by charging occupancy charge of Rs. 95 on the condition of new and impartable tenure. It is contended in the writ petition that the grand-father of the petitioners namely late Dhanrajbhai Hathibhai was cultivating the land admeasuring 11 Acres and 30 Gunthas, whereas late Lala Harkha was cultivating the land admeasuring 17 Acres and 24 Gunthas, though they were permitted to cultivate one half portion of Survey No. 86 on Eksali basis. It is further stated in paragraph No. 4.3 of the writ petition that the total measurement of the land bearing Survey No. 86 was 29 Acres and 24 Gunthas. 4. In the year 1958, the road named as Danta Ambaji road was constructed utilising the portion of the land bearing Survey No. 86, resulting into division of the said plot into four parts, which were renumbered as Survey Nos. 86/A, 86/B, 86/C and 86/D. It is contended that Survey No. 86/A and 86/C were jointly owned and cultivated by the predecessor-in-interest of the petitioner Nos. 1 and 2 and the Survey No. 86/D was owned and cultivated by the respondent No.3. 86/A, 86/B, 86/C and 86/D. It is contended that Survey No. 86/A and 86/C were jointly owned and cultivated by the predecessor-in-interest of the petitioner Nos. 1 and 2 and the Survey No. 86/D was owned and cultivated by the respondent No.3. However, as per the revenue record, Survey No. 86/B was recorded in the name of Late Lala Harkha. 5. The further contention is that pursuant to the order dated 20.10.1962 of the Prant Officer, Late Dhanrajbhai Hathibhai (grandfather of the petitioners) was granted the land bearing Survey No. 86/A admeasuring 6 Acres and 30 Gunthas, by regularising his possession and Revenue Entry to the effect was mutated in the revenue record bearing Entry No. 488. 6. Vide another order dated 16.11.1963, the Prant Officer, Palanpur had forfeited the land granted to late Lala Harkha for the breach of the conditions of new and impartable tenure land and the land was ordered to be vested in the State Government and the possession of the land-inquestion was also taken from late Lala Harkha. However, vide another order dated 11.05.1967, the Prant Officer, Palanpur ordered to re-grant the land bearing Survey No. 86/B to late Lala Harkha by charging penalty. The number of the land in the order of re-grant had been shown as 86/1 and the measurement was shown as 19 Acres. It is contended in the writ petition that the said measurement was a result of the mistake about the area entered in the revenue record. In the order of re-grant, the Mamlatdar, Vadgam noticed the mistake and stated that instead of 19 Acres, the actual possession of 17 Acres and 19 Gunthas (17.19) was to be handed over to late Lala Harkha. The mistake of Survey No. shown as 86/1 instead of 86/B was also noticed and a report in that regard was submitted by the Mamlatdar to the Deputy Collector, Palanpur on 20.07.1967. It is, thus, submitted that the Deputy Collector, Palanpur vide order dated 11.08.1967 amended the earlier order of regrant dated 11.05.1967 mentioning the measurement of the land granted to late Lala Harkha to be read as 17 Acres and 24 Gunthas instead 19 Acres. The revenue entry No. 906 dated 11.08.1967 certified on 12.10.1967 was, thus, entered in the revenue records. The revenue entry No. 906 dated 11.08.1967 certified on 12.10.1967 was, thus, entered in the revenue records. It is further contended that vide another order dated 11.09.1967, the Prant Officer, Palanpur granted the land bearing survey No. 86/C admeasuring Acre 0.17 Guntha and Survey No. 86/D admeasuring Acre 0.15 Gunthas to late Dhanrajbhai (grand-father of the original petitioners). 7. The names of heirs and legal representatives of the deceased Lala Harkha were recorded in the revenue records in the year 1972 and 1990. In the year 1992, the heirs of late Lala Harkha had applied to the Deputy Collector for partition of the land bearing Survey No. 86/B, which was granted on 11.06.1992 and Entry No. 1606 was mutated to that effect. It is sought to be submitted in the writ petition that the partition of Survey No. 86/B admeasuring 17 Acres and 24 Gunthas was undertaken and, thus, the measurement of 1967 which was corrected by the Mamlatdar, was accepted till the year 1994. 8. However, on 04.01.1994, one of the heirs of late Lala Harkha namely Ashokbhai Amarbhai Dabhi moved an application to the Mamlatdar, Vadgam requesting to change the measurement of the land in the revenue record of Survey No. 86/B as 19 Acres instead of 17 Acres and 24 Gunthas. The said application was rejected vide order dated 29.03.1995. In an appeal before the Deputy Collector, vide order dated 05.08.1995, the order passed by the Mamlatdar dated 29.03.1995, was confirmed with the dismissal of the said appeal. Further appeal filed before the Collector, Banaskantha was also dismissed vide order dated 29.02.1996, which has resulted in filing of Revision Application before the Secretary(Appeals), Revenue Department, Ahmedabad by Revision Application No. SRD/HKP/BNS/Dasu/4/96. The SSRD vide order dated 03.05.1997 had partly allowed the appeal and while quashing the order passed by the Collector, Banaskantha, the matter was remanded back for fresh consideration for re-measurment of the land-in-question. 9. Pursuant to the directions given by the SSRD, the Collector, Banaskantha made the re-measurement and vide order dated 03.03.1999, after hearing all concerned, dismissed the appeal confirming the order dated 05.08.1995 passed by the Deputy Collector, Palanpur. Shri Ashokbhai Dabhi has further challenged the order before the SSRD by Revision Application No. SRD/BND/BANAS/1/99, which has been allowed vide order dated 17.08.2000, whereby the order dated 03.03.1999 passed by the Collector has been set aside. 10. Shri Ashokbhai Dabhi has further challenged the order before the SSRD by Revision Application No. SRD/BND/BANAS/1/99, which has been allowed vide order dated 17.08.2000, whereby the order dated 03.03.1999 passed by the Collector has been set aside. 10. It is sought to be submitted that the Revision Application has been illegally allowed by the SSRD ignoring that there has been no challenge to the order dated 11.08.1967 of the Deputy Collector. The order dated 17.08.2000/06.09.2000 passed under Section 211 of the Gujarat Land Revenue Code, 1879 passed by the Secretary (Disputes), Revenue Department, Government of Gujarat, Ahmedabad was subject matter of challenge in the writ petition. 11. The learned single Judge while dismissing the writ petition has noted that in the order impugned, it was categorically recorded by the competent authority that the total area of the land bearing Survey No. 86 was 30 Acres and 4 Gunthas and the question remained was of the area in the possession of the petitioners, which was admeasuring 6 Acres and 30 Gunthas. It was noted in the order impugned itself that 6 Acres and 30 Gunthas of land should remain with the petitioners. That being so, the petitioner cannot have any grievance against the order passed by the Deputy Collector (Appeals). However, the petitioners were insisting that only 17 Acres and 24 Gunthas of the land could be given to the heirs and legal representatives of late Lala Harkha out of the Survey No.86. 12. It was recorded that after construction of the road, the land lying on one side is admeasuring 25 Acres and 17 Gunthas, comprising of two plots namely Survey No. 86/A and 86/B, out of which only 6 Acres and 30 Gunghas was initially granted to the predecessor-in-title of the petitioners namely late Dhanrajbhai. In the order impugned, it has been specifically noted by the appellant authority that out of 25 Acres and 17 Gunthas, 6 Acres and 30 Gunthas has to be given to the petitioners and remaining land which is 18 Acres and 37 Gunthas has to go to the heirs and legal representatives of late Lala Harkha. In the order impugned, it has been specifically noted by the appellant authority that out of 25 Acres and 17 Gunthas, 6 Acres and 30 Gunthas has to be given to the petitioners and remaining land which is 18 Acres and 37 Gunthas has to go to the heirs and legal representatives of late Lala Harkha. It was also noted in the order impugned that though in the original order of grant, the area of land comprising of Survey No. 86 granted to late Lala Harkha was mentioned as 19 Acres, but since on the spot only 18 Acres and 37 Gunthas was available, the heirs and legal representatives of late Lala Harkha the applicant therein, would be entitled to 18 Acres and 37 Gunthas only. 13. There is no dispute about the fact that other two plots namely Survey Nos. 86/C and 86/D were granted to the petitioners subsequently and that these two plots are located on the opposite side of the road. The result is that after construction of the road, sub-divided four plots are on opposite sides, Survey Nos. 86/A and 86/B are located on the North side, whereas Survey Nos. 86/C and 86/D are located on the Southen side of the road. The learned single Judge has categorically noted this fact while further recording that so far as the re-grant to late Lala Harkha is concerned, there is no dispute. It appears that there was some error in the measurement and the Survey number which has been corrected by the order impugned passed by the SSRD, noticing that at the time of initial grant of the land to late Lala Harkha, Survey number mentioned was 86/1 comprising of area of 19 Acres. 14. Having noted the above, the learned single Judge has reached at the conclusion that there was no reason to interfere with the order passed by the SSRD. We may further go through the order of the SSRD dated 17.08.2000/16.09.2000, which was subject matter of challenge before the learned single Judge. 14. Having noted the above, the learned single Judge has reached at the conclusion that there was no reason to interfere with the order passed by the SSRD. We may further go through the order of the SSRD dated 17.08.2000/16.09.2000, which was subject matter of challenge before the learned single Judge. We may note that there is a categorical finding that total area of Survey No. 86 at mouje Jalotra Taluka Vadgam was Acre 30-04 Gunthas, out of which Acre 19-00 Guntha was allotted to late Lala Harkha vide order dated 18.10.1955, on the basis of which the possession price was fixed by the Prant Officer vide order dated 29.10.1955 and the said land was granted to late Lala Harkha as a New and impartable tenure land. However, there is no dispute about the order of re-grant dated 11.05.1967 passed by the competent authority. In the order of re-grant initially, the number and area of the land was shown as Survey No. 86/B admeasuring 19 Acres, but vide amendment order no. JMN/Vashi/3600 dated 11.08.1967, the measurement of the land for re-grant was corrected as Survey No. 86/B admeasuring Acres 17-24 Gunthas. It is noted by the SSRD that the application dated 04.01.1994 filed by Ashokbhai Dabhi has been rejected by the Mamlatdar, Vadgam vide order dated 29.03.1995, which has resulted in the further orders passed by the Deputy Collector and the Collector rejecting the appeals. In the first round of proceedings, the Secretary (Disputes) vide order dated 3.5.1997 noted that the land bearing Survey No. 86/B and 86/D were entered in the registered book as admeasuring Acre 17-24 Gunthas and Acre 1-32 Gunthas, both in the name of late Lala Harkha. The matter was, thus, remitted to the Collector for measurement and passing a fresh order. 15. Having considered the rival contentions of the learned advocates appearing for the parties, the SSRD in the order impugned has noted that prior to the year 1955, the possession of the predecessor-in-interest of the applicant therein namely Lala Harkha had been shown in Survey Nos. 86 namely 86/1, which was re-numbered as 86/B, whereas Entry No. 488 in the name of late Dhanrajbhai, the predecessor-in-interest of the petitioners shows that Survey No. 86 paiki admeasuring 6 Acres and 30 Gunthas was granted to him. The Survey number granted to late Dhanrajbhai was mentioned as original Survey No. 86 paiki. 86 namely 86/1, which was re-numbered as 86/B, whereas Entry No. 488 in the name of late Dhanrajbhai, the predecessor-in-interest of the petitioners shows that Survey No. 86 paiki admeasuring 6 Acres and 30 Gunthas was granted to him. The Survey number granted to late Dhanrajbhai was mentioned as original Survey No. 86 paiki. Later on, its part was made and it seems that error in the number was occurred during the re-survey. 16. Be that as it may, it was recorded that the predecessor—in-interest of the applicant namely Lala Harkha, was re-granted an area of 19 Acres (Acre 19-00 Guntha) in the year 1955. However, there is no clarity as to how the mutation was made for an area of 17 Acres and 24 Gunthas instead of 19 Acres. No reason could be found on the record for the said change. The fact remains that in the year 1955, late Lala Harkha, the predecessor-in-interest of the applicant was re-granted an area of 19 Acres possession of which was also given. It was noted that, in brief, out of the government land of Survey No. 86 admeasuring 30 Acres 04 Gunthas, 19 Acres (19 Acres 00 Guntha), was granted to late Lala Harkha in the year 1955 and he continued in cultivation thereof. Though for some intervening period thereafter the name of the State Government had been recorded in the revenue record, but possession of Lala Harkha continued and fresh order of re-grant was passed in the year 1967. Some time prior to the year 1958, as per Entry No. 488, Survey No. 86 paiki admeasuring area 6 Acres 30 Gunthas was granted to the predecessor-intitle of the original petitioners and after construction of the road in the year 1958, Survey No. 86 was divided in four parts, as ‘A’, ‘B’, ‘C’ and ‘D’ as per Entry No. 352 dated 20.01.1958. 17. Further, the deduction of an area of 2 Acres and 3 Gunthas was made due to construction of the road. Upon deduction from the total area admeasuring 30 Acres 4 and Gunthas of Survey No. 86, the remainder would be 28 Acres and 1 Guntha, which must be available. Further, after deduction of 6 Acres and 30 Gunthas of the land granted to the predecessor-in-interest of the petitioners, the remainder would be 21 Acres and 10 Gunthas. Upon deduction from the total area admeasuring 30 Acres 4 and Gunthas of Survey No. 86, the remainder would be 28 Acres and 1 Guntha, which must be available. Further, after deduction of 6 Acres and 30 Gunthas of the land granted to the predecessor-in-interest of the petitioners, the remainder would be 21 Acres and 10 Gunthas. The Prant Officer vide order dated 16.11.1963 has recorded that vide order dated 18.08.1956, Survey No. 86/1 admeasuring 19 Gunthas was granted to late Lala Harkha, which was in his possession at that point of time. As per the record of the year 1958, four parts were created out of Survey No. 86 being ‘A’, ‘B’, ‘C’ and ‘D’. It was not clarified as to which part would form out of Survey No. 86/1, which was granted to late Lala Harkha. It seems that vide order dated 11.09.1967, the Prant Officer, Palanpur granted other two sub-divided plots being Survey Nos. 86/C and 86/D to late Dhanrajbhai predecessor-in-interest of the original petitions and Entry No. 914 dated 26.09.1967 was made, accordingly. It is noted by the learned SSRD that if the entire measurement of Survey No. 86 is considered, out of 30 Acres 4 Gunthas, deduction of 2 Acres and 3 Gunthas for the road has to be made, 6 Acres and 30 Gunthas granted to late Dhanrajbhai and 19 Acres regranted to late Lala Harkha, if considered, even then 2 Acres and 11 Gunthas land would be found to be in excess. Against that, the land bearing Survey Njo. 86D admeasuring area Acre 0 and Guntha 29 and for the land bearing Survey No. 86C area Acre 1-35 Gunthas, as fragmented land, were granted to late Dhanrajbhai vide order dated 11.09.1967, total coming to 2 Acres and 24 Gunthas, which would be in excess of Acre 0-13 Gunthas of Survey No. 86, left over after construction of the road and allotment to the predecessor-in-interest of the petitioners and the respondents, much prior to 11.09.1967. It was then noted as to how and in what circumstances, order dated 11.08.1967 for amendment of the area of the land granted to late Lala Harkha admeasuring Acre 19-00 Guntha was made, was not clear. 18. It was then noted as to how and in what circumstances, order dated 11.08.1967 for amendment of the area of the land granted to late Lala Harkha admeasuring Acre 19-00 Guntha was made, was not clear. 18. Taking note of the above, it was decided by the SSRD that an area of Survey No. 86 divided into 86A and 86B lying on one side of the road was to be considered wherefrom 6 Acres and 30 Gunthas granted to late Dhanrajbhai predecessor-in-interest of the original petitioners was to be deducted, which would result in the left over area of 18 Acres 37 Gunthas of the land in Survey No. 86B which was re-granted to late Lala Harkha. It was, thus, concluded that the orders passed by the Deputy Collector dated 11.08.1967 and 5.8.1995 and order dated 3.3.1999 passed by the Collector, Palanpur were liable to be set aside. For Survey Nos. 86A and 86B, the land admeasuring 18 Acres and 37 Gunthas for which possession of late Lala Harkha and later his heirs was confirmed, is to remain in their possession. However, for the remainder of the land, in excess of 18 Acres 37 Gunthas, their possession is to be removed. 19. With regard to the dispute pertaining to Survey Nos. 86C and 86D granted to late Dhanrajbhai predecessor-in-interest of the petitioners, separate proceedings were directed to be conducted under the Fragmentation Prevention Act by the Collector. 20. Having gone through the order passed by the learned single Judge, as also the order passed by the SSRD, we may note that the only dispute raised by the original petitioners is with regard to the area of the land bearing Survey No. 86/B granted to late Lala Harkha. This issue has been duly considered on the basis of the material on record by the SSRD. The findings returned, as a result of the factual inquiry made by the SSRD, could not be interfered with within the scope of Article 226 of the Constitution of India. This issue has been duly considered on the basis of the material on record by the SSRD. The findings returned, as a result of the factual inquiry made by the SSRD, could not be interfered with within the scope of Article 226 of the Constitution of India. Reliance placed on the decisions of the Apex Court and of this Court about the limitation to exercise suo motu powers of revision are of no benefit, inasmuch as, in the facts and circumstances of the present case, in the inquiry conducted by the SSRD on the application filed by the heirs and legal representatives of the original grantee, no prejudice can be said to be caused to the petitioners. The identification of the correct area of the land bearing Survey No. 86/B granted in favour of the predecessor-in-interest of the applicant namely Ashokbhai Amarbhai Dabhi, vide order of re-grant dated 11.05.1967 is not subject matter of challenge before any court of law. 21. The learned single Judge has rightly concluded that once the authority has ascertained the area granted to the predecessor-in-interest of the original applicant and also ascertained the area of the Survey No. 86 allotted to the original petitioners being 6 Acres and 30 Gunthas and the area of the land granted, remained with the petitioners, no prejudice can be said to have been caused to the petitioners. 22. For the aforesaid, we do not find any good ground to interfere with the order passed by the learned single Judge. The appeal stands dismissed, accordingly. However, the cost imposed by the learned single Judge is made easy. Further Order The prayer made by the learned counsel for the appellant for extension of the interim protection granted in the appeal is hereby rejected, in view of the final order passed by us.