Gujarat High Court
State Of Gujarat vs Govindbhai Devshibhai Since ... on 21 December, 2021
Bench: A. P. Thaker
C/SCA/911/2000 JUDGMENT DATED: 21/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 911 of 2000
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2014
In R/SPECIAL CIVIL APPLICATION NO. 911 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER
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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 ? Yes
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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STATE OF GUJARAT
Versus
GOVINDBHAI DEVSHIBHAI SINCE DECEASED THROUGH HEIRS
==========================================================
Appearance:
MS. DHWANI TRIPATHI, AGP (1) for the Petitioner(s) No. 1
DECEASED LITIGANT(100) for the Respondent(s) No. 1
MR MEHULSHARAD SHAH(773) for the Respondent(s) No. 1.1,1.2
MR. JAY M THAKKAR(6677) for the Respondent(s) No. 1.1,1.2
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 21/12/2021
ORAL JUDGMENT
1. Rule. Mr. Mehul Sharad Shah, learned advocate with Mr. Jay
Thakkar, learned advocate waives service of notice on behalf of
respondent. Rule is fixed forthwith.
C/SCA/911/2000 JUDGMENT DATED: 21/12/2021
2. By way of present petition, the State of Gujarat has
challenged the order dated 19.8.1997 passed by the learned
Gujarat Revenue Tribunal in Appeal No. TEN.A.R. 8/95 setting
aside the order of the learned Collector, Rajkot.
3. Brief facts of the case is that private respondent has
submitted an application to the Mamlatdar, Rajkot on 15.3.1993
that he has purchased the land about 1000 sq. Yds from S.
No.38/4 of Village Vavdi, Taluka & District: Rajkot by registered
sale document bearing No. 145 dated 5.1.89 from the heirs of
Parsottambhai Fulabhai . The land was originally belonging to
Girasdar Naransinh Bhagvatsinh and Natubha Naransinh, who by
registered sale-deed No. 76/1949 had sold as "Aghat",
admeasuring 2000 Sq. Yds to Parsottambhai Fulabhia, out of
which the private respondent has purchased 1000 Sq. Yds from
Parsottambhai Fulabhai. As the disputed land was not entered
into revenue records as "Aghat" sale to him, the private
respondent requested the Mamlatdar to regularise under the
Rules prevailing in 1949 in the erstwhile Saurashtra State.
3.1 After holding inquiry by the Mamlatdar, Rajkot , he
forwarded the case papers to the Deputy Collector, Rajkot, who
after holding inquiry, held, by his order dated 9.11.1994 that the
Suit land does not belong to Girasdar Naransinh Bhagvatsinh but
belongs to the State and held that the private respondent was
holding possession unauthorisedly and ordered that the
Mamlatdar should taken action under Section 61 of the Bombay
Land Revenue Code.
C/SCA/911/2000 JUDGMENT DATED: 21/12/2021
4. Being aggrieved by the said Order, the private respondent
preferred an appeal before the learned Collector, Rajkot, which
came to be dismissed by him on 7.4.1995. Against that order, the
private respondent preferred an Appeal before the Gujarat
Revenue Tribunal by Appeal No. TEN.A.R. 9/95, which came to be
allowed by the learned Gujarat Revenue Tribunal vide its order
dated 19.8.1997, holding that the land in question does not
belong to the Government Land but it is a private land.
5. Being aggrieved by this order of the learned Gujarat
Revenue Tribunal, the State has filed the present appeal on the
following grounds:
(i) The private respondent has not produced any documentary
evidence except the sale-deed dated 27.1.1994 , which is also
contradictory and misguiding the Court.
(ii) The document is got-up and forged one and there is no
entry in the revenue record to show that the disputed land is in
the name of the private respondent.
(iii) The Tribunal ought to have appreciated the fact that there
was an ordinance No. 4 of 1948 promulgated by the erstwhile
Saurashtra State and, therefore, the sale deed for the land in
question is null and void.
(iv) The Gujarat Revenue Tribunal has no Revisional authority
and ought not to have passed such order.
(v) The Saurashtra Gharkhed Tenancy Settlement and
Agricultural Lands Ordinance 1949, essentially in Section 54
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provides restrictions of transfer of agricultural land,
Management of uncultivated land and acquisition os estate and
land. The Tribunal committed error in interpreting the said
provision of Section 54.
(vi) The Tribunal ought to have hold that in view of the
provisions of Section 54, the bequeath of Sale-deed of
agricultural land is illegal and void.
(vii) The very transfer of the agricultural land to non-
agriculturist is ab-initio void and no better title can pass to
beneficiaries than what the original holder had and, therefore,
the restriction on transfer made in the law were and are also
binding to the original holder and, therefore, the order passed by
the Collector is legal and valid.
(viii) Regarding delay, it is contended that some delay has
occurred in preferring this petition due to procedural delay in
getting sanction from the Legal Department , the delay has
occurred and it is not fatal.
On the aforesaid grounds, the petitioner has prayed to
allow the present petition by setting aside the impugned order
of GRT and to restore the order of the learned Collector, Rajkot.
6. The respondent has filed his affidavit-in-reply at (page-114
of the compilation) wherein it is contended as under:
6.1 The respondent has contended that in view of one circular
of the Government of Gujarat dated 21.3.1964, it was provided
that Aghat sale from the Girasdar should be approved after
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holding an inquiry under Section 37(2) of the Code, if it is prior to
17.1.1951. The sale of the disputed land by original owner/
Girasdar in favour of Pursottambhai Fulabhia is of 1949 and,
therefore, it cannot be said to be government land. The
respondent has contended that he had applied to the Mamlatdar
to regularise the sale. However, the learned Collector, Rajkot by
order dated 9.11.1994 held that land bearing Survey No. 38/4 in
question is of ownership of the Government and the occupation
of the respondent was declared unauthorised. The respondent
has further contended that after unsuccessfully challenging the
said order before the Collector, he preferred appeal No. 9/1999
before Gujarat Revenu Tribunal, which set aside the order passed
by the Authorities below and held that the present respondent is
the owner of the land and the land bearing Survey No. 38/4 of
village Vavdi is not government land.
6.2 The respondent has further contended that the
compensation for the land went into acquisition for widening of
the road has been paid to Jadeja Natwarsinh Naransinh. That it
was government land, then the Highway Authority or the
Government authority would not have paid any compensation for
acquisition of the part of the land. He has also contended that
the Gujarat Revenue Tribunal has decided the issue in his favour
and on that basis revenue entry has already been mutated in the
revenue record on 5.9.1997 and the same has been Certified on
23.12.1997.
6.3 The respondent has further submitted that even
thereafter, he has applied for development permission from
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Rajkot Development Authority to put up a construction of Hotel
and the permission was granted on 4.12.1990 and thereafter,
even revised permission was also granted on 5.3.1994. According
to him, he has put up construction of Krishna Park Hotel on
highway and using the same since long and has also purchased
adjoining land of Survey No. 38/1 of 15000 sq. Yards and by
merging the present disputed land, he has constructed Hotel on
the Highway. That he is bonafide purchaser of the said land and
government has not produced any evidence to show that it is
government land. He has prayed to confirm the order of the
Gujarat Revenue Tribunal and to dismiss the present petition.
7. Heard Ms. Dhwani Tripathi, learned AGP for the State and
learned advocate Mr. Mehul Sharad Shah, learned advocate with
Mr. Jay Thakkar, learned advocate for the respondent. Perused
the material placed on record.
8. Mr. Dhwani Tripathi, learned AGP for the State has
reiterated the same facts which are narrated in the Memo of
Petition and has submitted that after merger of the old State in
the State of Saurashtra, the entire property of the then Gharkhed
land has become the property of the State of Saurashtra, which is
ultimately vested in the Government. She has submitted that
originally the land has vested in the Government. The Girasdar
has no right, title or authority to sell out property. According to
her submission, the revenue authority below has properly and
minutely considered each and every aspect of the matter and
rightly come to the conclusion that the land in question is of
Government Land and not a private property. She has also
C/SCA/911/2000 JUDGMENT DATED: 21/12/2021
submitted that inquiry under Section 37(2) of the Code was
proper one. She has also submitted that even if the revenue
entry mutated in the name of Girasdar is considered, then some
portion of the land was acquired for the purpose of widening of
road and thereafter the portion of land was not available with
Girasdar. While referring to the documentary evidence, she has
submitted that there was no land admeasuring 2000 sq. Yards
also available as alleged by the private respondent. She has
submitted that earlier sale deed of 1949 has no value as it was
without approval of the competent authority. She has also
submitted that though the documentary evidence is alleged to
have been from 1948 till 1987, none has come forward for
making any revenue entry regarding the said transaction. She has
also submitted that considering all the documents on record,
there is variance on the area of the land. She has also submitted
that there was delay of 38 years for initiation of proceedings for
entering the revenue entry in respect of sale of 1949 and such
delay has not been explained. While referring to the additional
affidavit, she has submitted that the list of events clearly
mentions that after the merger, no land was available to the
Girasdar and there was no availability of private land with the
Girasdar. She has vehemently submitted that the learned
Tribunal has not appreciated the fact that the Saurashtra
Government, after the formation of State of Saurashtra, the
Jagirdar/ Talukdar/ Bhayat had no rights to administer, transfer,
sale the property and therefore, the execution of the sale deed in
favour of the predecessor to the respondent in title Shri
Parshottambhai Fulabhai is void ab initio and neither the
predecessor in title nor the present respondent could carry the
C/SCA/911/2000 JUDGMENT DATED: 21/12/2021
better title of the land in question. She has also submitted that
the private respondent has encroached upon the government
land. She has supported the orders of the subordinate revenue
authorities and has prayed to set-aside the impugned order of
the learned Gujarat Revenue Tribunal.
9. Per contra, learned counsel Mr. Mehul Sharad Shah for the
private respondent has vehemently supported the facts which
are narrated in the affidavit-in-reply of the private respondent.
He has submitted that though there was formation of the State
of Saurashtra by merger of the Girasdar, that was only for the
purpose of administration of the Giras and not all the properties
were vested in the State of Saurashtra. He has also submitted
that there were private properties of Girasdar which were kept
with them. He has also submitted that Girasdar has sold his own
land way back in 1949. While referring to the revenue entry of
1949, wherein sale for erstwhile Girasdar in favour of the
predecessor in title is shown, has submitted that during the
widening of the road between Rajkot to Gondal wherein portion
of the land of Girasdar was acquired and payment of
compensation was paid to original Girasdar. This facts, according
to him, speaks itself that the land in question was of the
ownership of the Girasdar and not that of the government land.
He has also submitted that the predecessor in the title of
respondent had sold the land in question to the private
respondent way back in 1989 by registered sale deed dated
5.1.1989. He has also referred to the various permissions granted
by the Rajkot Municipal Corporation for construction of Hotel as
well as new planning. He has also submitted that behind this
C/SCA/911/2000 JUDGMENT DATED: 21/12/2021
disputed land, the private respondent has also purchased various
plots from the industrial plots and the same were merged by him
for construction of Hotel over there. According to him, the
observations made by the revenue authorities below, were not
proper. He has also submitted that the learned Gujarat Revenue
Tribunal has properly considered the facts and law and has
properly passed the impugned order, which does not call for any
interference. He has prayed to dismiss the present petition.
10. In rejoinder, Ms. Tripathi for the State has submitted that
the acquisition of the land was under Saurashtra Estate
Acquisition Act and compensation was paid to the Girasdar. While
referring to the order of the Collector, she has submitted that as
per the observation made therein, upto 1984-85 to 1987-88, the
land has been shown as agricultural land, and therefore, there is
no illegality committed by the subordinate revenue authority in
passing the impugned order. She has submitted that the learned
Gujarat Revenue Tribunal has committed error of facts and law
by passing the impugned order.
11. In sur-rejoinder, Shri Mehul Sharad Shah, learned advocate
for the private respondent has submitted that there was no
stand that the land was agricultural land being taken by the
authority in past. He has submitted that Rajkot Urban
Development Authority has also considered the private
respondent as owner and in Town Planning Scheme, final Plot has
been allotted to him. He has submitted that due to the afflux of
time, the entire nature of the land is already changed. He has
prayed to dismiss the present application.
C/SCA/911/2000 JUDGMENT DATED: 21/12/2021
12. The Ordinance No. I of 1948 [The Saurashtra State
Regulation of Government Ordinance, 1948], which is relied upon
by the learned AGP, the relevant part therefore is produced as
under:
"ORDINANCE No. 1 of 1948
[THE SAURASHTRA STATE REGULATION OF GOVERNMENT
ORDINANCE, 1948]
[First published in the Gazette on 1st march, 1948]
Amended by Ordinances Nos.-
(1) XLIV of 1948
(2) XV of 1950
AN
ORDINANCE
to provide for the peace and good governance of the State of
Saurashtra and for taking over the administrations of the
Covenanting States and certain other States
Estates and Talukas
WHEREAS by the Covenant entered into by the Rulers of
Kathiawar for the formation of a United State of Kathiawar
(which is hereafter in this ordinance referred to as "the Covenant")
the Covenanting States agreed to unite and integrate their
territories in one State with a common executive, legislature and
judiciary, which State was in the Covenant calle the United State
of Kathiawar, and to include in the State so established any other
State, Taluka or Estate, the Ruler or Talukdar of which agrees
with the approval of the Government of India to the merger of the
State, Taluka or Estate in the said United State of Kathiawar :
AND WHEREAS Article VI of that Covenant provides as follows:-
(1) The Ruler of each Covenanting State shall, as soon as as
may be practicable, and in any event not later than the 15 th April,
C/SCA/911/2000 JUDGMENT DATED: 21/12/2021
1948, make over the administration of his State to the Raj
Pramkukh : and thereupon -
(a) all rights, authority and jurisdiction belonging
to the Ruler which appertain, or are incidental
to the government of the Covenanting State
shall vest in the United State of Kathiawar, and
shall thereafter be exercisable only as provided
by this Covenant or by the Constitution to be
framed thereunder:
(b) all duties and obligations fo the Ruler
pertaining or incidental to the government of
the Covenanting State shall devolve on the
United State of Kathiawar and shall be
discharged by it ; and
(c) all the assets and liabilities of the Covenanting
State shall be teh assets and liabilities of the
United State of Kathiawar.
(2) When in pursuance of any such agreement of merger as is
referred to in clause (b) of paragraph (1) of Article II, the
administration of any other State, Taluka or Estate is handed over
to the Raj Pramukh, the provisions of clauses (a) and (b) of
paragraph (1) of this Article, and in the case of a State, the
provisions also of clause (c) thereof, shall apply in relation to a
Taluka or Estate ; the reference in the said clauses to the Ruler
shall be construed as references to the Talukdar:
AND WHEREAS, in exercise of the powers conferred by paragraph
(3) of Article IX of the Covenant, the Raj Pramukh is pleased to
make and promulgate the following Ordinance -
1. (1) This Ordinance may be called the 'Saurashtra State
Regulation of Government Ordinance, 1948.
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(2) It shall extend to all the States, territories and areas
over which rights , authority and jurisdiction may come to be
vested in the State created and established by the Covenant under
the provisions of the Covenant.
(3) It shall come into force at once.
4) It shall remain in force until it is repealed by a
competent legislature of the Saurashtra State.
2. The State created and established by the Covenant shall be
known as [Saurashtra] and the Covenant shall be read and
construed as if all references to the United State of Kathiawar in
the Covenant were references to [Saurashtra].
3. (1) xxx xxx xxx
xxx xxx xxx
12.1 Thus, this ordinance provides for administration of the
Covenanting States. It does not provides that every property of
the Covenanting State shall be property of the Saurashtra State.
The ordinance relates to the agreement of merger and the
administration of the territory. It does not mean that whatever
property is which, is of ownership of the King / Girasdar is
personal, it shall become State property of the State of
Saurashtra.
13. Reliance is placed on Ordinance No. IV of 1948 (The
Covenanting States Administration ordinance, 1948), which reads
as under:
"ORDINANCE No. IV of 1948
[THE COVENANTING STATES ADMINISTRATION ORDINANCE, 1948]
C/SCA/911/2000 JUDGMENT DATED: 21/12/2021
[First published in the Gazette on 8th March, 1948]
AN
ORDINANCE
further to provide for the peace and good governance of the State
in Kathiawar which have been integrated into one State known as
State of Saurashtra.
WHEREAS by the Covenant entered into by the Rulers of
Kathiawar, it was agreed by the Covenant States to unite and
integrate their territories in one State and the State of Saurashtra
has been formed :
AND WHEREAS in pursuance of the said Covenant, the Rulers of
Covenanting States have agreed to make over the administration
of their States to the Raj Pramukh, not later than the 15 th day of
April, 1948 ;
AND WHEREAS it is expedient to provide for the peace and good
government of the territories of the said States whose
administration have been made over or may hereafter be made
over to the Raj Pramukh :
NOW, THEREFORE, in exericse of powers conferred by paragraph
(3) of Article IX of the Covenant, the Raj Pramukh is pleased to
make and promulgate the following Ordinance -
1. (1) This Ordinance may be called the 'Covenanting States
Administration Ordinance, 1948.
(2) It shall extend to the territories, including in the
Covenanting States on and from the date on which the
administration of any of the said State or States is made over to
the Raj Pramukh and notified in the Saurashtra Government
C/SCA/911/2000 JUDGMENT DATED: 21/12/2021
Gazette.
2. The Executive authority over the territories included in the
States to which this Ordinance applied shall be vested, subject to
the control of the Government of Saurashtra, in an officer or
officers which expression shall include a council of Administration
to be appointed for each of the said States by the Government of
Saurashtra and notified in the Saurashtra Government Gazette.
3. (1) On and from the date on which the administration of
each of the said State is made over to the Raj Pramukh, the said
officer or officers may, for the effective exercise of the authority
vested in him/ them under Section 2, make such orders as may
seem to him/ them expedient and exercise such powers and
jurisdiction, as were being exercised by the Rulers of the said
States.
(2) Without prejudice to the generality of the powers conferred
by sub-section (1), the powers and jurisdiction hereby conferred
shall be -
(i) in the case of territories included in Salute State all powers
and jurisdiction of the Rulers of those States:
(ii) xxx xxx xxx xxx
xxx xxx xxx xxx"
It only provides for the power and jurisdiction of the Rulers
of the State to be vested in the new State of Saurashtra.
14. It transpires from the material placed on record that the
disputed land of village Vavdi, Taluka & District: Rajkot has been
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allotted to Naransinh Bhagvatsinh who is the Girasdar of the
Kothariya State. Under Rule 65, Gharkhed Certificate in Form 10
has already been issued in favour of the Girasdar and the order of
the Mamlatdar dated 14.5.1952 has been reflected. In the
Certificate, there is condition No.10, which clearly shows that the
grantee i.e. the Girasdar shall be liable to pay full land revenue
for the said lands and subject to that, he shall be free to dispose
of the land by transfer, sale, mortgage, etc. The said certificate
clearly reveals that the disputed land has been shonw as to have
been given to Girasdar. In the Government Memorandum, of
Revenue and Agricultural Department, Ahmedabad dated
21.3.1964, it is clearly laid down that any land held by Girasdar
and sold before 17.1.1951, inquiry under Sec.37(2) should be held
to establish the claim and the same should be honoured, but he
should be held liable to pay full assessment, etc. In the said
Memorandum, it is clearly laid down that sales made after
17.1.1951 should not be recognised under the provisions of
Section 6 of the Saurashtra Estate Acquisition Act, 1952.
Admittedly, in the present case, Girasdar who has given the
disputed land along with other land for Gharkhed, has
transferred the land as "Aghat" sale to Darji Parsottam Pulabhai
admeasuring 2000 sq. Yds by registered sale deed No. 76 dated
27.1.1949. This document is registered sale deed executed in
1949 and cannot be doubted. Thus, the sale transaction has
occurred before cut-off date of 17.1.1951. Under this
circumstances, even in view of the Memorandum of Revenue and
Agricultural Department, Ahmedabad dated 21.3.1964, the
transaction ought to have been regularised as it was the
intention of the then Government to honour the same.
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15. It is also pertinent to note that entries in revenue record of
right in village Form No.6 of village: Vavdi, being revenue entry
No.27 dated 20.8.1955, etc. wherein Jadeja Natvarsinh Naransinh
is shown as the occupant of the disputed land. Not only that
compensation for the portion of the land acquired for widening
of the road has been paid to Jadeja Natvarsinh Naransinh. The
private respondent has purchased the land admeasuring 1000 sq.
Yds. From the said Survey No. 38/4 from the heirs of Parsottam
Fulabhai by registered Sale document No. 145 dated 5.1.1989.
16. It also transpires from the observation of the learned
Tribunal that Talati has in his deposition dated 2.8.1994 admitted
that in the revenue record and in village form No.7/12, 8A, etc.
the disputed land is in the name of Natvarsinh Naransinh and out
of the same, 15 gunthas from Survey No.38/4 had gone to Rajkot-
Gondal Road for which entry has been made in the record of right
at Sr. No.721. Not only that, the Circle Officers has also stated
that according to revenue record, land is in the name of the
Girasdar.
17. Further, it transpires from the order of the learned Tribunal
that in similar matter pertaining to same village Vavdi, the
Tribunal in past has held that the land was of the private land and
Appeal filed by the State Government against that order came to
be dismissed. The learned Tribunal has also referred to one
earlier order wherein Deputy Collector, Rajkot Prant, Rajkot in
the order No. PRAK-LRC.S.37(2) Case No.3/95 dated 1.2.97 has
held that Darbar of Kothariya had sold the land which was in
Gharkhed on 17.3.49 i.e. before the Saurashtra Land Reforms Act,
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1951 came into force. Thus, in the similarly situated matters, the
revenue authorities have upheld the transaction entered into by
the Girasdar prior to 1951 as legal one.
18. Now considering the entire matter in view of the
documentary evidence and the impugned orders of the
subordinate revenue authorities as well as that of the learned
Gujarat Revenue Tribunal, it transpires that the learned Gujarat
Revenue Tribunal has considered the facts and circumstances of
the case and the material placed on record in a threadbare
manner and has not committed any error of fact and law in
allowing appeal filed by the private respondent and setting aside
the impugned order of the subordinate revenue authorities. The
reasoning adopted by the learned Gujarat Revenue Tribunal is in
consonance with the material placed on record and equally
sustainable in the eyes of law.
19. Therefore, petition is liable to be dismissed and accordingly
it is dismissed. No order as to costs. Rule discharged. Interim
relief, if any, stands vacated.
Civil Application (For joining party) No.1 of 2014 also stands
disposed of accordingly.
(DR. A. P. THAKER, J)
SAJ GEORGE
