Research › Search › Judgment

Gujarat High Court · body

2024 DIGILAW 588 (GUJ)

Suresh Vithalbhai Patel v. State Of Gujarat

2024-03-19

NIRZAR S.DESAI

body2024
JUDGMENT : 1. With the consent of learned advocates for the parties, the matter was taken up for final hearing. Hence, RULE. Learned AGP Mr. Nikunj Kanara waives service of notice of rule for and on behalf of the respondents – State. Direct service is not filed for the respondent no. 6. However, respondent no.6 being a Cooperative Society who has already sold the land to the petitioner, prima facie this Court is of the view that the respondent no. 6 – Society’s absence in this petition would not affect the merits of the matter as the petition is preferred by the petitioner challenging the orders passed by the Special Secretary, Revenue Department as well as the Collector whereby the proceedings for breach of condition are directed to be initiated and Entry No. 1269 dated 16.01.2008 is cancelled. 2. Heard learned advocate Mr. J. C. Vyas appearing for the petitioner and learned AGP Mr. Nikunj Kanara appearing for the respondent – State. 3. By way of this petition, the petitioner has challenged the order dated 25.01.2016/23.02.2016 passed by the Special Secretary, Revenue Department (Appeals) in Revision Application No. MVV/HKP/AMD/174/2013 whereby the Revision Application was rejected and the order passed by the Collector, Ahmedabad dated 26.08.2013 in Application No. LB/RA No.62/2011 was confirmed. 4. The brief facts giving rise to the present petition are stated as under:- 4.1. The land bearing Survey No. 48 situated at Village: Melasana,Taluka: Sanand, District: Ahmedabad admeasuring 27013 sq. mtrs. was granted to the respondent no. 6 i.e. Jay Shri Mevadi Samudayik Kheti Sahkari Mandali Ltd. as new tenure land vide order dated 16.04.1986. It is pertinent to note that the aforesaid land was granted by the Government to the members of the aforesaid Mandali for earning their livelihood. Though the aforesaid fact is not stated in the petition by making the averments from the orders which are annexed with the petition, the fact about the purpose behind the grant of land can be gathered. 4.2. According to the petitioner, vide order dated 17.03.2007 passed by the Mamlatdar, Sanand, the land was converted into old tenure land only for agricultural purpose and other conditions stipulated in the order. 4.3. As per the condition no. 4.2. According to the petitioner, vide order dated 17.03.2007 passed by the Mamlatdar, Sanand, the land was converted into old tenure land only for agricultural purpose and other conditions stipulated in the order. 4.3. As per the condition no. 4, the land was to be utilized only for agricultural purpose and the purpose of the land cannot be changed without prior permission of the Competent Authority but what is most important is condition no. 8 which provides that unless the order is reviewed by the Deputy Collector, the land cannot be transferred to any other person. 4.4. In the instant case, immediately after the land was converted into old tenure land only for agricultural purpose vide order dated 17.03.2007, the land was sold to the petitioner by respondent no. 6 – Mandali vide registered sale deed dated 23.03.2007 for which a Revenue Entry No. 1269 was mutated in the revenue record on 16.01.2008 and the same was certified on 13.03.2008. 4.5. According to the petitioner, thereafter, due to some misunderstanding among the office bearers of the Respondent No.6, an appeal was preferred by the respondent no. 6 on 11.04.2008 under Rule 108 (5) of the Bombay Land Revenue Code and the notice was not served upon the petitioner at his proper address and despite that the respondent no. 3 proceeded with the appeal and the order was passed on 02.09.2008 in RTS Appeal No. 89 of 2008 and the Mutation Entry No. 1269 was cancelled and the land was directed to be vested into Government without there being any charge over the land in question. The petitioner challenged the aforesaid order dated 02.09.2008 by way of Revision Application No. LB/Revision Application No. 254 of 2008 and the Collector vide his order dated 13.07.2009 rejected the petitioner’s application and confirmed the order passed by the Deputy Collector dated 02.09.2008. 4.6. The petitioner challenged the order passed by the Collector, Ahmedabad by way of Revision Application No. MVV/HKP/AMD/96/2009. In the said revision application, the petitioner’s application for stay was rejected and therefore, the petitioner preferred Special Civil Application No. 8313 of 2010 which was disposed of by this Court vide order dated 21.07.2010 and the parties were directed to maintain status quo as prevailing on the date of the order till final disposal of revision application. In the said revision application, the petitioner’s application for stay was rejected and therefore, the petitioner preferred Special Civil Application No. 8313 of 2010 which was disposed of by this Court vide order dated 21.07.2010 and the parties were directed to maintain status quo as prevailing on the date of the order till final disposal of revision application. The Revision Application No. 96 of 2009 was ultimately partly allowed by the Special Secretary, Revenue Department (Appeals) and the matter was remanded back to the Collector, Ahmedabad by quashing and setting aside the earlier order dated 13.07.2009 passed by the Collector, Ahmedabad. The aforesaid was done vide order dated 19.01.2011 passed in Revision Application No. 96 of 2009. 4.7. Upon remand, the Collector, Ahmedabad in LB/Revision No. 62 of 2011 vide order dated 26.08.2013 confirmed the order passed by the Deputy Collector and quashed and set aside the Entry No. 1269 dated 16.01.2008 as well as cancelled the order dated 17.03.2007 passed by the Mamlatdar whereby the tenure of land was changed from new tenure to old tenure and has further directed the Deputy Collector to initiate the proceedings for breach of condition. 4.8. The aforesaid order dated 26.08.2013 was challenged before the Special Secretary, Revenue Department (Appeals) by way of Revision Application No. MVV/HKP/AMD/174 of 2013 and as the Special Secretary, Revenue Department (Appeals) vide order dated 25.01.2016/23.02.2016 rejected the revision application of the petitioner and confirmed the order passed by the Collector, Ahmedabad dated 26.08.2013. Being aggrieved by and feeling dissatisfied with the same, the petitioner has preferred this petition with prayers which is already referred in foregoing paragraphs. 5. Learned advocate Mr. J. C. Vyas appearing for the petitioner has made following submissions:- 1) That the order passed by the Collector and confirmed by the Special Secretary, Revenue Department (Appeals) are passed in Cross utilization of powers as the proceedings were in respect of revenue entry and in that proceedings, the Deputy Collector observed the breach of condition and directed the land to be vested into Government. However, subsequently, in the remand proceedings though the Entry No. 1269 was quashed, the Collector, Ahmedabad ought not to have directed to initiate the proceedings for breach of conditions. 2) Learned advocate Mr. Vyas relied upon the decision of this Court in the case of Laxmi Associates V/s. Collector, Vadodara and Anr. However, subsequently, in the remand proceedings though the Entry No. 1269 was quashed, the Collector, Ahmedabad ought not to have directed to initiate the proceedings for breach of conditions. 2) Learned advocate Mr. Vyas relied upon the decision of this Court in the case of Laxmi Associates V/s. Collector, Vadodara and Anr. and submitted that in view of cross utilization of powers which was held to be illegal, the impugned order was quashed by this Court by way of above judgment which is reported in 2006 (3) GLR 1982 . 3) Learned advocate Mr. Vyas further submitted that the petitioner is a bonafide purchaser of the land in question and he is an agriculturist and therefore, as per the conditions of the order dated 17.03.2007, such transfer of land is not prohibited and therefore, the impugned order is bad and the same is required to be quashed and set aside. 4) Except the above submissions, no other submissions are made by learned advocate Mr. Vyas for the petitioners. 6. Learned AGP Mr. Nikunj Kanara appearing for the respondent – State vehemently opposed the petition and submitted that the say of the petitioner that there is no breach of condition and the petitioner being an agriculturist, he was entitled to purchase the land as there is no prohibition in the condition of the order dated 17.03.2007 while converting the land from new tenure land to old tenure land for the agricultural purpose is misconceived. 6.1. Learned AGP Mr. Nikunj Kanara drew attention of this Court to the condition no. 8 of the said order which indicates that the aforesaid order was subject to review by the Deputy Collector and until that exercise is over, the land was not to be transferred to any other person. 6.2. Learned AGP Mr. Kanara submitted that the order dated 17.03.2007 was passed converting the land from new tenure land to old tenure land for agricultural purpose and even before the said order could be reviewed immediately within a period of 1 week, a Registered Sale Deed was executed in favour of the petitioner by the respondent no. 6 on 23.03.2007 and therefore, there is a clear breach of condition no. 8 of the order dated 17.03.2007. He, therefore, submitted that the authorities have rightly quashed and set aside Entry No. 1269 dated 16.01.2008 and the authority has rightly ordered the proceedings for breach of condition. 6 on 23.03.2007 and therefore, there is a clear breach of condition no. 8 of the order dated 17.03.2007. He, therefore, submitted that the authorities have rightly quashed and set aside Entry No. 1269 dated 16.01.2008 and the authority has rightly ordered the proceedings for breach of condition. 6.3. Learned AGP Mr. Kanara further submitted that while doing so, the Collector, Ahmedabad vide his order dated 26.08.2013 has also quashed and set aside the impugned order dated 17.03.2007 whereby the land was converted into old tenure land. Learned AGP Mr. Kanara submitted that in all the proceedings, the present petitioner was a party and at no point of time, any objection in respect of what is being argued before this Court today were taken by the petitioner. 6.4. Learned AGP Mr. Kanara thereafter relied upon a decision of this Court in case of Devrajbhai Valjibhai Gada V/s. State of Gujarat decided on 21.11.2016 in respect of Special Civil Application No. 10489 of 1999 and Special Civil Application No. 10497 of 1999 with Special Civil Application No. 10499 of 1999 and by relying upon aforesaid judgment and more particularly paragraph no. 11 of the decision, learned AGP Mr. Kanara submitted that the Collector was well within his powers to direct the concerned authority to initiate the proceedings for breach of condition. By relying upon the paragraph no. 11 of the aforesaid judgment, learned AGP Mr. Kanara pointed out that this Court while deciding the aforesaid petition has held that while deciding the RTS proceedings and while setting aside the entries made by the Revenue Authority when the Collector prima facie, found that there is a violation of section 63 of the Tenancy Act, he directed the Mamlatdar and ALT to initiate the proceedings under section 84 (C) of the said Act and the Collector himself did not exercise the powers under section 84 (C) of the Tenancy Act and in the 84(C) proceedings as the parties will get the opportunity of hearing, the said act or observation of the Collector cannot be said to be illegal. 6.5. Learned AGP Mr. Nikunj Kanara further submitted that the record clearly indicates that the condition no. 8 of the order dated 17.03.2007 was that until that order is reviewed by the Deputy Collector, any transfer could not have taken place. 6.5. Learned AGP Mr. Nikunj Kanara further submitted that the record clearly indicates that the condition no. 8 of the order dated 17.03.2007 was that until that order is reviewed by the Deputy Collector, any transfer could not have taken place. Despite that within a week from the date of order i.e. 17.03.2007, the petitioner has purchased the land from the respondent no. 6 and therefore, there is a clear violation of condition no. 8 and therefore, the proceedings is rightly directed to be initiated for breach of conditions and Entry No. 1269 dated 16.01.2008 is rightly quashed and set aside. 6.6. Learned AGP Mr. Kanara further submitted that as and when such proceedings are initiated, the notice would be issued to the petitioner and the petitioner will get a chance to defend the aforesaid proceedings and as the petitioner is going to get full opportunity to defend the aforesaid proceedings, the impugned order cannot be said to be illegal. 6.7. Learned AGP Mr. Kanara also submitted that in the instant case, the Government is on much better footing as the Collector has exercised the powers under the Bombay Land Revenue Code only and has directed to the concerned authority to initiate the proceedings for breach of condition which is also an exercise of powers well within the provision of Bombay Land Revenue Code and therefore, it cannot be said to be cross utilization of the powers by the Collector, 6.8. By making the aforesaid submissions, learned AGP Mr. Kanara prayed for dismissal of this petition. 7. I have heard learned advocates for the parties and perused the record. On perusal of record, I found that the land in question was originally allotted to the respondent no. 6 for earning livelihood for its members. At the relevant point of time, the land was enjoying the status of new and impartiable land. However vide order dated 17.03.2007 passed by the Mamalatdar, sanand the land was converted into old tenure land for agricultural purpose. One of the condition i.e. condition no. 8 of the aforesaid order was that until and unless the aforesaid order is reviewed by the Deputy Collector, no transfer of land was permissible. However vide order dated 17.03.2007 passed by the Mamalatdar, sanand the land was converted into old tenure land for agricultural purpose. One of the condition i.e. condition no. 8 of the aforesaid order was that until and unless the aforesaid order is reviewed by the Deputy Collector, no transfer of land was permissible. Despite that the petitioner purchased the land in question immediately after a week from the date on which the land was converted into old tenure land vide order dated 17.03.2007 as the petitioner executed registered a sale deed in respect of purchase of land in question on 23.03.2007. 8. In view of aforesaid sale deed and Mutation Entry No. 1269 dated 16.01.2008 was mutated and it is the respondent no. 6 – Society which challenged the aforesaid entry by way of first proceedings i.e. RTS Appeal No. 89 of 2008 wherein the impugned Mutation Entry No. 1269 dated 16.01.2008 was quashed and land was directed to be vested in Government. 9. Thereafter, from time to time, there were challenges to the orders which were adverse to the petitioner and the matter was remanded back and ultimately lastly upon remand, the matter was heard by the Collector, Ahmedabad, he quashed and set aside the impugned Entry No. 1269 dated 16.01.2008 by noticing the breach of condition. The Collector, Ahmedabad while passing the order dated 26.08.2013 has also observed that though the land was converted into old tenure land vide order dated 17.03.2007, the said order was not reviewed and approved by the Higher Authority. No documentary evidence to that extent were produced by the parties. To review the order passed by the Mamlatdar is mandatory as per the Government Resolution and in the instant case, the said exercise was not done and therefore, there is a clear breach of condition. 10. Since the aforesaid order dated 17.03.2007 was not reviewed, the said order cannot be said to be in operation because the said order would become operational only if the same is approved by the Higher Authority and hence, the Collector, Ahmedabad held the land to be a new tenure land in view of original order of grant of land in favour of the respondent no. 6 – Mandali and therefore, the Collector, Ahmedanad held that there is a breach in respect of section 73 (B) of Bombay Land Revenue Code and therefore, he rightly quashed and set aside the Entry No. 1269. 11. Further upon perusal of record, I found that the District Collector, Ahmedbad has specifically stated in the impugned order that for breach of condition, a separate proceedings are required to be initiated and therefore, he only recommended the initiation of proceedings for breach of condition. 12. The Special Secretary, Revenue Department while confirming the aforesaid order passed by the Collector, Ahmedabad and rejecting the revision application considered the aforesaid aspect and confirmed the order which in my view is absolutely just, legal and proper as both the Revenue Authorities namely the Collector and Special Secretary, Revenue Department have taken a right view while considering the grievance of the petitioner. 13. As far as the submission in respect of cross utilization of powers is concerned, in the instant case, on perusal of record, I am of the view that when the Revenue Entry No. 1269 was challenged by the respondent no. 6 – Society and validity of that entry was being examined, if it was noticed that the aforesaid entry was not in consonance with the conditions of order dated 17.03.2007, the entry was rightly cancelled and the proceedings for breach of condition has rightly been initiated which was also done by initiating the proceedings for breach of section 73 (b) of the Bombay Land Revenue Code and therefore, the same cannot be termed as cross utilization of powers as the powers available under one statute were not exercised in respect of another statute. 14. Since, I am holding that this is not a case of cross utilization of power, the judgment relied upon by learned advocate Mr. Vyas in case of Laxmi (supra) will not help the petitioner. 15. As far as the submission made by learned AGP Mr. Kanara, based upon the decision of this Court in case of Devrajbhai Valjibhai Gada (supra) is concerned, in paragraph no. 11 of the said decision, the Court has observed as under:- “11. Vyas in case of Laxmi (supra) will not help the petitioner. 15. As far as the submission made by learned AGP Mr. Kanara, based upon the decision of this Court in case of Devrajbhai Valjibhai Gada (supra) is concerned, in paragraph no. 11 of the said decision, the Court has observed as under:- “11. In the instant case, vide the impugned order the Collector has set aside the entries made in the revenue record, which were prima facie found to be in violation of the Section 63 of the Tenancy Act and therefore, directed the Mamlatdar and ALT to initiate proceedings under Section 84C of the said Act. The Collector himself has not exercised the powers under Section 84C of the said Act as sought to be submitted by Mr.Mehta. In the inquiry before the Mamlatdar under Section 84C, the petitioners would have the opportunity of hearing and to produce the material. It is needless to say that the revenue entries are made only for the fiscal purpose and they themselves do not create any right, title or interest in favour of any party.” 16. In the instant case also, as there is only direction to initiate the proceedings for breach of condition and once the aforesaid proceedings are initiated, the notice shall be given to the present petitioner and all other interested parties, the petitioner is going to get full chance to put forward his version and to defend the aforesaid proceedings and therefore, as none of the rights of the petitioner are curtailed by aforesaid direction, I don’t see any reason to interfere with the orders passed by the Collector and confirmed by the Special Secretary, Revenue Department by way of impugned orders. I don’t see any illegality or error committed by either the Collector, Ahmedabad or Special Secretary, Revenue Department (Appeals) by passing the impugned orders and therefore, there is no reason to interfere with the impugned orders. 17. Resultantly, the present petition is required to be dismissed and the same is dismissed. Rule is discharged. No order as to costs.