Najirbhai Alibhai Panja vs District Collector
2021 Latest Caselaw 17962 Guj

     C/SCA/20621/2017                              JUDGMENT DATED: 01/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 20621 of 2017


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER                  Sd/-

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1     Whether Reporters of Local Papers may be allowed                  No
      to see the judgment ?

2     To be referred to the Reporter or not ?                           No

3     Whether their Lordships wish to see the fair copy                 No
      of the judgment ?

4     Whether this case involves a substantial question                 No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                           NAJIRBHAI ALIBHAI PANJA
                                    Versus
                        DISTRICT COLLECTOR & 2 other(s)
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Appearance:
MR YN RAVANI(718) for the Petitioner(s) No. 1
MS DHWANI TRIPATHI, AGP (1) for the Respondent(s) No. 1,3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 2
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                               Date : 01/12/2021

                               ORAL JUDGMENT

1. Rule. Learned AGP waives service of notice of rule on behalf of respondent nos.1 and 3. With the consent of the parties, the matter is fixed for hearing forthwith.

2. By filing this petition, the petitioner has prayed to quash and set aside order of the Secretary, Revenue Department

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(Appeals), Ahmedabad, dated 30.8.2017 as well as order dated 17.12.2015 passed by District Collector, Gir Somnath, and further prayed to direct the respondent authorities to permit the petitioner to change the activity of dairy industry on the land in question granted to the petitioner by Sanad.

3. The brief facts of the case are that the petitioner had applied to grant land near Prabhaspatan of the then Veraval Taluka for extracting stone etc. by using crusher machine. On 4.9.1982, Deputy Town Planning Officer, Junagadh, assessed the price of the land at Rs.2.50 ps. Per sq.mtr. And opined to allot land of Survey No.1457/P of village-Prabhaspatan. On 3.7.1982, the General Manager of District Industrial Centre, recommended to allot the land for industrial purpose to the petitioner. After necessary formalities, the petitioner was granted 4800 sq.mtrs. of land by Sanad on deposit of entire amount. Sanad was issued under H-Form prescribed under the Gujarat Land Revenue Code.

3.1 As the land could not be utilized for the industrial purpose, the land was directed to be forfeited by the Collector on 26.10.1989 with 40 patts amount of penalty. Order of the Collector was challenged before Special Secretary by filing revision, which was rejected by order dated 7.2.1990. Against which the petitioner had filed Special Civil Application No.4606 of 1990 and the petitioner was granted order of stay by this Court. Thereafter, the petitioner made various representations. On 1.4.1997, the Government considered the representation and directed the District Collector to reclaim the land and on 29.7.1997, the Government further directed to delete the condition mentioned therein. Such a direction was given on a

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condition that the petitioner would withdraw Special Civil Application No.4606 of 1990 from the Honourable Court.

3.2 In view of decision of the State Government to re-grant the land to the petitioner, the petitioner deposited 40 patts penalty amount with Talati cum Mantri on 30.10.1997 and on 31.1.1998, land was re-granted to the petitioner.

3.3 Since the law relating to Forests had changed and it had become difficult for the petitioner to get stones required for running the crusher, the petitioner applied to District Collector, seeking permission to change the industrial activity to dairy industry or service industry.

3.4 On 29.5.2001, the District Collector did not grant permission to change the use and directed to forfeit the land. Petitioner has challenged the order of District Collector before Revenue Secretary (Appeals), who found that the order was erroneous. On 27.7.2011, Revenue Secretary (Appeals) remanded the matter back to re-consider the aspect of change of use. On 29.8.2011, District Collector, asked Deputy Collector to inspect the site and on 29.12.2011, Deputy Collector inspected the site and found that there are go-downs and even buffalos are kept and two partners are added by the petitioner. In view of this, the petitioner was asked to pay 20% of the current market price as premium and 4.90% as stamp duty. On 9.3.2015, the petitioner deposited such amount. Inspite of deposit of premium amount after inspection of site by the Deputy Collector, on 17.12.2015, District Collector passed the impugned order against which the petitioner preferred revision application, which also came to be rejected vide order dated

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30.8.2017. Being aggrieved by both these orders, the petitioner has preferred present petition.

4. Heard Mr.Yogesh Ravani, learned advocate for the petitioner and Ms.Dhwani Tripathi, learned AGP for the respondent-State.

5. Mr.Yogesh Ravani, learned advocate for the petitioner submitted that the petitioner is granted land by way of Sanad in Form-H of Rule-41 of the Gujarat Land Revenue Code after full payment of market price. He submitted that since the land was granted by Sanad, there was no power available with the authorities below under Section 211 of the Gujarat Land Revenue Code. He further submitted that this issue was considered in the case of Govind Murjibhai Patel (Kerai) and Others v. State of Gujarat and Others reported in 2007 (1) GLR 671.

5.1 Mr.Ravani further submitted that in case of breach of condition of Sanad, Civil Suit can be filed but same cannot be cancelled by powers under Section 211 of the Code. He further submitted that view of grant of Sanad, provisions of Indian Contract Act would apply and the revenue authorities will have no jurisdiction. He further submitted that after inspection of the site, the petitioner has also paid premium as directed by the authority, inspite of this no permission for change of use is granted and on the contrary impugned order is passed to take back the land.

5.2 He has also relied upon decision of the Supreme Court in the case of Andhra Pradesh Industrial Infrastructure

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Corporation Limited and Others v. S.N.Raj Kumar and Another reported in AIR 2018 SC 1981, to submit that breach of condition would not entitle the authority to take back the land.

5.3 In view of above, he prayed to allow present petition.

6. On the contrary, Ms.Dhwani Tripati, learned AGP for the respondent-State has supported the impugned orders and submitted that the authorities below have not committed any error while passing the impugned orders. She has submitted that the petitioner has committed breach of condition of Sanad and, therefore, the authorities have all the right to take the land back and the authorities have not committed any error in passing the order of vesting the land with the Government. She has relied upon following decisions in support of her submission.

(i) Patel Raghav Natha v. G.F.Mankodi, Commissioner, Rajkot reported in 1965 GLR 34.

(ii) Late Shri Mamaiyabhai Shardulbhai through his Legal Heirs Kukabhai and Others v. State of Gujarat and Others reported in 2018 (1) GLR 82.

6.1 In view of above, she has prayed to dismiss present petition.

7. Heard learned advocate for the petitioner and learned AGP for the respondent State. Perused the material placed on record and considered the decisions cited at bar. It is not in dispute that the land in question was allotted to the petitioner

C/SCA/20621/2017 JUDGMENT DATED: 01/12/2021

for industrial purpose on 25.2.1983 by Sanad issued under H- Form prescribed in the Gujarat Land Revenue Code. Not only that earlier the land was forfeited in 1989 as it was not used for the industrial purpose. However, it was re-granted on deposit of 40 patts penalty amount in 1998. Before discussing the issue, this Court may refer to the relevant legal provisions. Section 68 of the Gujarat Land Revenue Code reads as under:-

"68. Occupant's rights are conditional.-An occupant is entitled to the use and occupation of his land for the period, if any, to which his [tenure] is limited, or if the period is unlimited, or a survey settlement has been extended to the land in perpetuity conditionally on the payment of the amounts due on account of the land revenue for the same, according to the provisions of this Act, or of any rules made under this Act, or of any other law for the time being in force, and on the fulfillment of any other terms [or conditions] lawfully annexed to his [tenure]:

[Provided that nothing in this or any other section shall make it, or shall be deemed ever to have made it, unlawful for the Collector at any time to grant permission to any person to occupy any unalienated unoccupied land, for such period and on such conditions as he may, subject to 4 [rules made by the 5 [6 [State] Government] in this behalf], prescribed, and in any such case the occupancy shall, whether a survey settlement has been extended to the land or not, be held only for the period and subject to the conditions so prescribed]."

7.1 Rule 43 of the Gujarat Land Revenue Rules provides as under:-

"43, Conditions of grants for building.(1) Save in special cases in which the Collector with the sanction of the State Government otherwise directs, or in localities falling under rule 44, land, for building sites shall be granted in accordance with the following provisions:

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(a) The land shall be granted in perpetuity subject to the provisions of the first paragraph of section 68, and shall be transferable.

(b) While the land has already been assessed for agriculture, the assessment shall be altered under whichever of rules 81 to 85 has been applied to the locality.

(c) Where the land has not been assessed the Collector shall fix the assessment in accordance with the principles laid down for alteration of assessment in rules 81 to 86 and the provisions of the said rules shall as far as may be, apply.

(d) All such assessments shall be fixed for the period specified in Rule 87(a) and may be commuted when they do not exceed one rupee in accordance with the provisions of rule 88.

(2) In the case of such grants an agreement in Form F, or Form H, as the Collector may deem fit, shall ordinarily be taken from the person intending to become an Occupant, and in the case of land in development scheme undertaken by the State Government in any district or in special cases, an agreement in Form HH shall be taken:

Provided that in the case of grant of lands situated within the limits of a municipal Corporation constituted under the Bombay Municipal Corporation Act or the Bombay Provincial Municipal Act, 1949, an agreement in Form F- 2, H-l or HH-l shall be taken in lieu of agreement in Form F, H or HH respectively. In the case of grants in which an agreement in Form H, H-1, HH or HH-1 is to be taken, the Collector may, subject to any general of special orders of the State Government, annex such additions conditions to, or omit or vary such of the conditions, in agreement as he thinks fit.

(3) When the land is granted on inalienable tenure, the clause specified in Form I shall be added to the agreement.

(4) The declaration below the agreement shall be subscribed by at least one respectable witness and by

C/SCA/20621/2017 JUDGMENT DATED: 01/12/2021

the patel and village accountant of the village in which the land is situate.

With a view to prevent ribbon development, Government is pleased to direct that no building should be permitted within 6.1 Meter of the read boundary in the case of all roads whether classed as main roads or otherwise."

7.2 In view of above provisions, it is clear that the land was granted to the petitioner in perpetuity for industrial purpose on 25.2.1983 by Sanad issued under H-Form. It also appears from record that the land was granted to the petitioner for extracting stone etc. by using crusher machine. Since the law relating to Forests had changed and it had become difficult for the petitioner to get stones required for running the crusher, the petitioner was willing to start dairy industry of service industry and also applied to District Collector, seeking permission to change the industrial activity. It is also not in dispute that on 29.12.2011, Deputy Collector visited the land in question and it was found that there are go-downs and buffalos kept on the site and two partners are added by the petitioner. Thereafter, the petitioner was asked to pay amount of premium, which is 20% of the current market price and also 4.90% stamp duty. It is also found that the petitioner deposited such amount in 2015, which is accepted by the authority. Therefore, the petitioner has also paid premium after inspection by the concerned Deputy Collector. So far as decision relied on by learned AGP in the case of Late Shri Mamaiyabhai Shardulbhai (supra) is concerned, in that case, the land was transferred by grantee in favour of another person and he also parted with possession, while in the present case, the land is with the petitioner and he is in possession of the land in question. The petitioner only wanted to change the purpose for use of the land. Therefore, breach of

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condition by the petitioner in the present case cannot be compared with aforesaid decision and it would not apply in the facts of present case.

8. In the case of Govind Murji Patel (Kerai) (supra), this Court has observed as under:-

"6. It is not in dispute that sanad of the land in question was already issued, when the revisional powers were exercised by the authority for the first time in the year 1994. It appears that the sanad came to be issued pursuant to the orders dated 28-2-1985, more particularly in view of the conditions incorporated. It is well settled that if the sanad has been issued in pursuance to the order passed by the revenue authority for allotment of the land the powers under the Land Revenue Code of revisional jurisdiction cannot be exercised, since the execution of the sanad is an agreement between the purchaser of the land/allottee of the land and the State Government. The reference may be made to the decision of this Court in case of "Patel Raghav Natha v. G.F. Mankodi, Commissioner, Rajkot Division and Others", reported in 1965 GLR, 34 and more particularly the concluding observations made at para 13 as under:

"13....Therefore, to my mind, the term included in this agreement can only mean that over and above the conditions which were specifically mentioned in the agreement, other conditions contained in any of the provisions of the Code, which can apply to such a grant, shall also apply. In my view, therefore, Section 211 cannot apply to the agreement, even if it is tried to be so made applicable by this particular condition. If in law there is no jurisdiction under Section 211 to revise an agreement no amount of terms included in a document between the parties can vest in the authority that jurisdiction. Under these circumstances, I find it difficult to accept the submissions made on behalf of the Municipality whereby they have urged that the inclusion of this condition would entitle the

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Government to revise the agreement itself under its powers, under Section 211. As a result of this train of discussion and reasoning, it must be held that the Commissioner's order is without authority and that there was no jurisdiction vested in him to pass an order which goes to nullify the agreement. In my view, the sanad or the agreement passed in this case as a result of the Collector's order still stands and is binding on both the sides till it is set aside in due course of law. As I have already observed that observed and as was observed in the various decisions discussed above, the right procedure for the Government is to go in a civil suit to set aside that agreement. Till then it stands good and binding."

7. Therefore, if the matter is considered in light of the above legal position, the exercise of the revisional power by the first authority and its confirmation thereof by the higher authorities can be said as without there being any jurisdiction to exercise the appellate power/revisional power and the proper course for the aggrieved party was to prefer the civil suit."

8.1 From the above decision also it is clear that the exercise of the power by the first authority and its confirmation thereof by the higher authorities can be said as without there being any jurisdiction and the proper course for the aggrieved party was to prefer the civil suit. The land was granted to the petitioner by way of Sanad in Form-H as prescribed under Rule- 43 of the Gujarat Land Reveue Rules, after charging market price, therefore, there is creation of an agreement between the parties and provisions of Indian Contract Act would apply and the revenue authorities have no power to exercise jurisdiction under the Gujarat Land Revenue Code. Therefore, it is clear that the revenue authorities have committed an error in passing the impugned orders.

C/SCA/20621/2017 JUDGMENT DATED: 01/12/2021

9. In view of above, impugned order dated 30.8.2017 of the Secretary, Revenue Department (Appeals), Ahmedabad, as well as order dated 17.12.2015 passed by District Collector, Gir Somnath, are quashed and set aside and the matter is remanded back to the revenue authorities to consider it afresh in view of above observations and the provisions of law and take a decision in accordance with law after affording an opportunity to the petitioner. It is hoped that such exercise shall be completed as early as possible and preferably within a period of four months from the date of receipt of writ of this order. With such direction, present petition is disposed of. Rule is made absolute to above extent. No order as to costs. Direct service is permitted.

Sd/-

(DR. A. P. THAKER, J) R.S. MALEK