Samatbhai Khodabhai Makvana vs State Of Gujarat
2021 Latest Caselaw 5698 Guj

     C/SCA/15882/2020                                      JUDGMENT DATED: 09/06/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 15882 of 2020


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE Sd/-

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

2     To be referred to the Reporter or not ?                                   No

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

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

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                         SAMATBHAI KHODABHAI MAKVANA
                                     Versus
                           STATE OF GUJARAT & 1 other(s)
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Appearance:
KARTIK H BHATT(9313) for the Petitioner(s) No. 1
MR ISHAN JOSHI, AGP (99) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 1,2
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    CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                                   Date : 09/06/2021

                                   ORAL JUDGMENT

1. RULE. Mr.Ishan Joshi, learned AGP waives service of rule for the respondent­State.

2. This petition under Article 226 of the Constitution of India is filed seeking direction to

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set aside the communication dated 19.06.2020 by the respondent no.2­Collector, Bhavnagar addressed to the Deputy Secretary, Revenue Department, New Sachivalya, Gandhinagar.

3. It is the case of the petitioner that vide order dated 02.01.2012, learned Additional Secretary (Appeals), Revenue Department had remanded the matter of the petitioner back to the respondent­Collector with several directions referring to the Government Resolution dated 08.01.1980 pertaining to regularizing government land which was in possession of the petitioner for cultivation.

4. Learned advocate for the petitioner submits that despite detailed directions were given by the Secretary (Appeals) for following of the provisions of the aforesaid resolution more particularly, Paragraph No.4 of the said resolution and to decide the matter upon remand. The Collector belatedly, vide order dated 19.06.2020 had issued communication which indicates that the Collector has completely flouted directions therein.

5. Over and above, the Collector has proposed to adopt a completely new policy for the valuation which was brought into operation in the year 2019. It is submitted that there was no reason for the Collector to seat over the remand order since 2012 and wait for the new policy to come into operation in the year 2019 and convey the proposal as per the new policy of the evaluation. Therefore, proposal which is

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forwarded under the impugned communication is not in consonance with the directions of the Secretary nor it is made within period during which the previous policy was in operation and now, as a result, the petitioner sought to be burdened by the new policy of the evaluation, whereas, at the relevant time, the applicant had already expressed the willingness to pay the amount with interest by taking into consideration the previous policy.

6. Learned advocate for the petitioner has also submitted that the respondent­Collector has committed an error in not referring to relevant clause of the Land Revenue Code which was referred to by the Secretary in its order. Hence also, the impugned communication, if acted upon, will not be serving the purpose, as desired by the order of the Secretary, Revenue Department (Appeals) and also frustrate the cause of the petitioner.

7. As against this, learned AGP has contested that the application mainly on the ground of lack of proper pleadings, as neither the petitioner has produced the resolution of 2019 which is the new policy nor the petitioner has produced on record the communication dated 11.06.2018 which is cited in the reference. In this regard. He refers and relies upon the decision of the Apex Court in the case of Rani Laxmibai Kshetriya, Gramin Bank Vs. Chand Behari Kappor & Ors, reported in (1998) 7 SCC 469.

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8. Learned AGP also submitted that the petition does not deserve to be considered even on the ground that the communication is the final conclusion, and therefore, there is no cause of action for which the petition can be filed.

9. Having considered the rival submissions and having perused the documents on record, it trasnpires that the petitioner belongs to a scheduled Caste and the father of the petitioner was given government waste land being revenue Survey No.31P in the year 1968­69 by Gram Panchayat of Chokva Village for his survival and the father of the petitioner with his hard work made the land cultivable and after the father of the petitioner passed away, the petitioner is cultivating the said land and takes care of his family from the income of the land. That the petitioner has no other source of income.

10. As per the government resolution being DBN­1072­ 28765­L dated 08.01.1980 the government of Gujarat with a view and benevolent purpose to regularize the land occupied by the persons belonging to general category and scheduled caste and tribe so that they are able to survive with the income from the land. In Paragraph No.6(4) of the said resolution it is provided to regularize the agricultural land occupied by a person belonging to a scheduled caste or tribe an amount to the tune of 6 pat and if the land is occupied by a person belonging to general category then the amount paid is to be 60 pat.

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11. The respondent no.2 had decided to regularize the said land of the petitioner, but the amount to be paid by the petitioner was 2.5 times the amount of the market value of the land; that the District Valuation Committee had on 25.11.2005 in its meeting decided that the price of the said land of the petitioner after evaluation as per Sqr.Mtr. is INR 6.20. That it was further decided that since the land occupied by the petitioner was acre 04­00 gunthas or 16188­00 Sqr.Mtrs. the amount to be paid by the petitioner was 2.5 time the price of the said land i.e. INR 2,50,914/­. That since the petitioner was depended for his livelihood on the income from that land and he could not pay such a huge amount for regularization and the petitioner is living below poverty line.

12. That the petitioner, therefore, assailed the order of respondent no.2­Collector, Bhavnagar before the learned Special Secretary, Revenue Department, on the ground that as per the said resolution dated 08.01.1980, the petitioner has to pay an amount to the tune of 16 pat of the land after evaluation and the said resolution has been passed for the welfare of the persons, who are dependent only on the income of the land occupied by them, and therefore, in Paragraph 6 in sub clause 4 of the said resolution, it has been observed that for agricultural land, if the persons belongs to scheduled caste or tribe then they have to pay an amount of 6 pat of the said land and 30 pat for the person belonging to other caste. The Special Secretary, Revenue in the revision

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application being JMN­BVN­9­2006 filed by the petitioner against the order of respondent no.2­ Collector vide order dated 02.01.2012 partly allowed the revision application and remanded the matter back to the respondent no.2­Collector with the observation of Paragraph 6(4) of the said resolution dated 08.01.1980.

13. The petitioner received the impugned communication of the respondent no.2­Collector in the month of July and came to know that the respondent no.2 has still decided that as per the resolution Paragraph 7, the petitioner still has to pay the market value of the land. That if said Paragraph No.7 of the said resolution is read carefully it categorically clarifies that "those land which are not described in the aforementioned Paragraph 6, therefore, the observation made in the said paragraph 7 of the resolution will not be applicable to the petitioner's land as the case of the petitioner squarely falls within contents mentioned in Paragraph 6 of the said resolution.

14. The order of the Secretary dated 02.01.2012 specifically carries the directions, wherein provisions of Government Resolution dated 08.01.1980 were to be used as guidelines for considering the case of the applicant and on such resolution which pertains to uncultivated land meant for allotment to the persons belonging to the backward class and the manner in which the occupation of such land is to be regularized and the amount that was charged for such

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land.

15. The provision of the resolution would indicate that the case of the applicant would fall in Clause 6(iv)(i). However, it appears that the Collector has committed an error by considering the case of the applicant to fall in Clause 7 of Government Resolution issued in 1980.

16. On reading of order of the Secretary, Revenue Department (Appeals), directions do not suggest that the Clause­7 of the Government Resolution issued in 1980 would be applicable to the facts of the case of the petitioner, and therefore, proposal contained in the impugned communication would not be in consonance with the directions of the Secretary, Revenue Department (Appeals).

17. The Court is of the view that, if any further action is permitted to continue on the basis of communication dated 19.06.2020, then the same would be against the directions contained in the order of the Secretary, Revenue Department (Appeals). The other aspect which requires consideration is the proposal of the Collector in the impugned communication for applying the subsequent evaluation policy which has come into effect on 31.07.2019. The chronology of events suggest proceedings against the petitioner were in the year 2006 and the revision application of the petitioner before the Secretary (Appeals) was in the year 2006, which ultimately concluded in the year 2012 with the directions of

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canceling the order in challenge dated 11.06.2006 by the Collector and remanding matter back for reconsideration. It is, therefore, the order of 2012 which was to be acted upon by the Collector within reasonable period and when the Collector though it fit to undertake the exercise by impugned communication in the year 2020, it would not be appropriate to apply the evaluation policy of the year 2019, as the delay of taking into consideration the case of the applicant upon remand lies at the door steps of the Collector himself.

18. With regards to the contention raised by the learned AGP regarding in complete pleadings and not producing the necessary documents, it is pertinent to observe that the documents which learned AGP refers to the communication dated 11.06.2018, which is a communication referred in the impugned communication and such communication is between the Collector addressing to the Deputy Secretary, Revenue Department. Such communication is a Inter Office communication, copy of which is obviously not available with the petitioner and in fact, the communication though being a official communication between Inter­Department, the copy of the same has not been forwarded to the petitioner which has now become important at the stage of the petition. It would be, therefore, unfair to expect for the petitioner to produce such documents of Inter Department communication. Despite opportunity is available to the respondent authorities to place the same before this Court, in absence of any attempt on

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the part of the respondent authorities, the Court is not inclined to accept say of the State to refuse relief on the ground of lack of pleading or produce of necessary documents.

19. Reliance placed by the learned AGP in case of Rani Laxmibai (supra), the Apex Court has held that it is the responsibility of the petitioner to fully aver facts and rights flowing therefrom in the pleadings, to enable the respondent to meet the petitioner's case. Considering the facts of this case, the attempt in this petition was to seek direction that the order of Special Secretary remanding the matter to the Collector with certain specific directions are complied with and by impugned communication, the Collector refused that such direction are not complied in its true letter and spirit and for consideration of the relevant documents, the impugned communication of the Collector and the order of the Secretary, Revenue Department (Appeals) by which direction were given to the Collector for following of the of the provisions of Government Resolution and remanded the matter to it. Except these two documents, no other documents are required to be dealt with at this stage.

20. In view of the aforesaid, the petition deserves to be allowed and is hereby allowed, the communication dated 19.06.2020 by the respondent no.2­Collector, Bhavnagar bearing no.ACHT/VASHI/307940/2019 is hereby quashed and set aside.

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21. Considering the submissions made by learned advocate Mr.Bhatt regarding the time period that has passed from the date on which the application of the petitioner for regularizing his occupation, period during which revision application was pending and allowing of his revision application in the year 2012, remanding the matter back to the Collector and the impugned communication of dated 19.06.2020, it would be appropriate to direct the Collector to undertake and exercises in its true letter and spirit as per the directions contained in the order of the Additional Secretary, Revenue Department (Appeal) dated 02.01.2012 passed in MVV/JMN/BVN/9/2006 within a period of three months of the date of receiving writ of this Court.

With the aforesaid, the petition stands allowed. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

Sd/-

(A.Y. KOGJE, J) GIRISH