State Of Gujarat vs Minakshiben W/O Karunakaran Ambu ...
2021 Latest Caselaw 13850 Guj

     C/SCA/14280/2019                                  JUDGMENT DATED: 13/09/2021




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 14280 of 2019


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 see                NO
      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 as            NO
      to the interpretation of the Constitution of India or any
      order made thereunder ?

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                            STATE OF GUJARAT
                                  Versus
                 MINAKSHIBEN W/O KARUNAKARAN AMBU NAIR
=============================================
Appearance:
MR. HARDIK MEHTA, AGP for the Petitioner(s) No. 1,2,3
MR MEHULSHARAD SHAH(773) for the Respondent(s) No. 1
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    CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 13/09/2021

                                ORAL JUDGMENT

1. RULE. Learned Advocate Mr. Mehul Sharad Shah waives service of rule on behalf of the respondent.

2. This petition is filed by the State invoking Articles­226 and 227 of the

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Constitution of India challenging the judgment and order dated 22­05­ 2017 passed by the Gujarat Revenue Tribunal in Revision No. TEN/BA/394/15.

3. The question raised is pertaining to issuance of certificate of an agriculturist to the respondent in her capacity as widow of Ex­Army Personnel.

4. Learned AGP submitted that husband of the respondent - Shri Karunakaran Ambu Nair belonged to State of Kerala and had served in the Indian Army between 1942 to 1947, after which he had left the job with the Indian Army and shifted with his family to the State of Gujarat and in the District­Godhara. On 04­03­2013, Shri Karunakaran Ambu Nair applied before the Residence Additional Collector, Godhara for certificate of being agriculturist on the basis of Government Resolution dated 27­03­2001, which provided for issuance of such certificate to Ex­ Service Men.

5. It appears that Shri Karunakaran Ambu Nair expired on 26­04­2014 and thereafter, present respondent being the widow of Ex­Service Man, persuaded such application for issuance of Certificate of being agriculturist. In the meantime, by Communication dated 08­06­2015, Shri Karunakaran Ambu Nair was addressed with the letter that as Shri Karunakaran Ambu Nair was not a native of Gujarat, his prayer is not granted. It appears that thereafter, an application was moved upon the present petitioners on 24­09­2015 with the same request for issuing status of agriculturist, which was filed and communicated to the respondent on 19­11­2015. It is this decision was subject matter of challenge in Revision Application before the Gujarat Revenue Tribunal (GRT) and GRT allowing such Revision Application, set aside the communications of Residence Additional Collector, Godhara dated 08­ 06­2015 and 19­11­2015 and also directed issuance of Certificate of

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agriculturist to the respondent herein.

6. Learned AGP submitted that case of the respondent could not be considered in view of the fact that the Government Resolution on which the reliance is placed provides for considering the case of the Ex­Service Men to natives of Gujarat. The respondent being native of Kerala, his case could not have been considered. It is further submitted that husband of the respondent even as per their own pleadings, have not completed period of 5 years of service in Army to be considered as eligible for grant of such certificate. It is submitted that husband of the respondent after completing his service with Army, which was less than 5 years, was an employee of Godhara Nagarpalika and continued to be so till the date of his retirement and thereafter, was also drawing pension as Employee of the Nagarpalika. Therefore, case of the respondent would not be covered under the objective of the Government Resolution, which was predominantly for the purpose of providing an opportunity of earning for family after having completed requisite service with the Indian Army. In the present case, no such requirement has come on record and hence, order passed by the Tribunal is completely against the very objective of the policy of the State. Learned AGP has produced on record Government Resolution of 15­02­1989, which lays down the requirement for grant of agricultural land to Ex­Service Men.

7. Learned Advocate for the respondent relying upon the Affidavit and has contested the petition on the ground of delay and submitted that the order of the GRT in the Revision Application dated 22­05­2017, whereas the petition has been filed only in the month of August, 2019 and therefore, there is a delay of more than 2 years. Such delay has not explained in the petition, cannot be condoned.

8. Learned Advocate for the respondent drawing attention of this Court to

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the Affidavit filed on behalf of the respondent submitted correct facts, are that husband of present respondent Shri Karunakaran Ambu Nair was working with Indian Army from 22.06.1942 to 17.05.1947. He also participated in Second World War and received Star award. He also participated in Burma war also. He settled in to State of Gujarat in the year 1948 and staying with his family at Godhra. He stayed in State of Gujarat more than 66 years before his death in the year 2014 at the age of 94 years. He was conferred domicile certificate of State of Gujarat. Therefore, by no stretch of imagination it can be said that he is not resident or native of Gujarat and cannot avail benefit as resident of Gujarat. It is submitted that as per Government Resolution, Ex­Army man is entitled for Government land to carry out agriculture activities. However, the husband of the respondent decided not to take land from the Government as a matter of principle. Thereafter, on 27.09.2001, State of Gujarat published resolution providing that if it is not possible to grant Government land in "Sathani" to the Ex­Service man, then to facilitate the Ex­Army man to purchase the agriculture land status of agriculturist can be conferred to them.

9. It is submitted that on the coming to know the said Government Resolution dated 27.09.2001, subsequently by the husband of the respondent, he applied for status of agriculturist vide application dated 04.03.2013. He has annexed several documents along with the application including the certificate of domicile issued by the Executive Magistrate, Godhra dated 16.10.2000 and also the copy of ration card. It is submitted that husband of the respondent has expired on 26.04.2014 and thereafter, respondent being wife requested the Collector by application dated 24.09.2015 to reconsider the case, however, the same was rejected on the ground that respondent is not native of Gujarat State.

10. Learned Advocate submitted that reasonings of the State is that

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respondent and her husband were not native of Gujarat. However, such argument cannot be accepted as the respondent was able to produce domicile certificate issued by the State Authorities (Executive Magistrate) and the same was produced before the Authorities. Therefore, the Authorities cannot rack up the issue of the respondent not being native of State. Moreover, it is emphatically submitted that the requirements as mentioned in the policy of the State, as is pointed out by the Assistant Government Pleader is pertaining to grant/allotment of land for agricultural purpose to Ex­Service Men, who are native of Gujarat, which is indeed a loadable objective, but the claim of the respondent is not that the respondent is demanding an agricultural land be alloted/granted to her in capacity of Ex­Service Men, but given only status of agriculturist.

11. Learned Advocate for the respondent has relied upon the decision in the case of Postmaster General and others v/s. Living Media India Limited and another reported in (2012) 3 SCC 563, by emphasizing on Para­29 of judgment.

12. Learned Advocate for the respondent submitted that submission of learned AGP on the ground of eligibility as the deceased husband of the respondent was gainfully employed was earning salary and thereafter, pension from the Local Body cannot considered to be valid argument as same is not reasonable on the basis of which applications of the respondent were rejected and the only ground of rejection on the ground of not being native of Gujarat.

13. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the facts narrated in the preceding paras narrows down controversy to the Right of respondent to hold the status of agriculturist on the basis of husband of the respondent being Ex­Service Man.

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14. By the order passed by the Residence Additional Collector, Godhara on the application filed by the late husband of the respondent and that by the respondent would indicate that policy of the State does not support the case of the respondent - Ex­ Service Man as policy only refers to conferring of the benefit to the natives of Gujarat. Application of the respondent also came to be filed on the same ground.

15. The GRT while reversing the decision of the Residence Additional Collector came to the conclusion that according to the provision of the circulars, ex­army­man is allowed to purchase agriculture land for the maintenance of his family. For this purpose special provision is made to undertake procedure to allot the land to provide Agriculturist certificate. Applicant's deceased husband namely Karunpakran Ambu Nair performed his duties in the Indian Army since 1942 to 1947. The applicant has submitted that her husband had received award for his duties on border during Second World War. The applicant has been living with her husband in Gujarat since 1960 and she has obtained domicile certificate of Gujarat state. As per the submission of the applicant, according to the provision of the circular, agriculture land is allotted or Agriculturist certificate is issued to the ex­army man who is domicile of Gujarat. The respondent has settled at Godhra, Gujarat since 1960 and she has no source of income except pension. Hence, for the livelihood of her family, the applicant requested to issue certificate for the purchase of land which was denied. The aforesaid application was rejected without appropriate and reasonable grounds. Applicant's husband was a soldier in Indian Army and his I­card is registered vide GUJ­04/002814ME­149014. The applicant states that she is domicile of Gujarat state on the basis of Domicile certificate issued by Executive Magistrate, Godhra. Hence, the farmer's certificate as requested by the applicant should be issued.

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16. The Government Resolutions from time to time specially dated 15­02­ 1989, 27­03­2001 and 27­09­2001 are placed before the Court for its consideration. The Government Resolution of 15­02­1989 provided for government waste land being alloted / granted to the Ex­Service Men and Clause­2 of such Government Resolution specified the relevant parameters to be considered before making such allotment. The Government Resolution of 27­03­2001 was causing some clarification / amendment on the subject of grant of Government lands to retired Army Officers / Ex­Service Men and the posts and ranks, which would be eligible for such grant. Aforesaid two Government Resolutions being for the purpose of allotment of land but the relevant for the purpose for the present case, would be the Government Resolution of 27­09­2001, which provides for grant of status of agriculturist to Ex­Service Men.

17. It is true that the rejection of application of the respondent was on the ground of not being native of State of Gujarat and the fact that the respondent was given domicile certificate of Gujarat. Upon being issued of domicile certificate, whether the respondent is to be treated as native of Gujarat is a question. However, in the facts of the present case, the Court does not deem it fit to address the issue as ultimately object for issuing the Government Resolution of 27­09­2001 governing the grant of status of agriculturist to Ex­Service Men, under which the benefit is claimed by the respondent is for the specific purpose. The Government Resolution itself specifies the consideration of the application from any Ex­Service Men to fulfill the requirement of Government Resolutions dated 15­02­1989 and 27­03­2001 and the requirement as specified in the aforesaid two Government Resolutions would clearly indicate the length of service as an important criteria. It requires active service of 5 years, which from the pleadings indicate that the husband of the respondent had performed duties as Ex­Service Men between 22­06­ 1942 to 17­05­1947 and therefore, did not fulfill eligibility criteria.

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18. Over and above, the respondent's husband (Ex­Service Man) was already gainfully employed in the Nagarpalika, had received salary till the date of his retirement and after his retirement, till his death, continue to receive pension / family pension thereafter. Therefore, objective of grant of land or grant of status of agriculturist to meet with the requirement of financial support does not appear to be existing in facts of the present case.

19. The Government Resolution dated 27­09­2001 appears to be issued only to overcome the practical difficulties faced by the native Ex­Service Men of Gujarat, who would face the difficulties in receiving agricultural land, as they did not have status of agriculturist and therefore, leading to the complications in view of other enactments governing land laws. Additional factor is that the respondent is already an age of 82 years and at this age, granting of status of agriculturist, is definitely not going to serve objective with which the Government Resolutions are passed. Nothing has come on record to indicate about other family members of the Ex­Service Man and their status in life, which in the opinion of the Court would be also relevant factor.

20. Reliance placed upon the decision of Postmaster General and others (supra) more particularly Para­29 would not assist the case of the respondent, as the issue before the Apex Court was for condoning the delay of 427 days in filing SLP, as there was a time limit prescribed for preferring SLP, which was breached by the appellant therein and therefore, when the statutory period is fixed for preferring an appeal, explanation is required though such delay may be at the hands of the Government Bodies, its agencies or instrumentalities. In the instance case, there is no statutory period fixed in preferring the petition under Article­226 and 227 of the Constitution of India. However, such petitions are required to be filed within reasonable period. The order impugned of the GRT dated 22­05­2017 and the petition preferred

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before this Court in the month of August, 2019, delay in the opinion of the Court is not so inordinate, so as to damage or affect any existing right of the respondent or amount to change in the situation of the respondent to her detriment.

21. The Court is of the view that the GRT has therefore, not taken into consideration the aforesaid factors while issuing the directions of issuance of Certificate as agriculturist. The object of the policy to grant status of agriculturist to Ex­Service Men is clearly spelt out and in facts of the case, the Court is of the view that no such factors exist to consider the case of the respondent. Moreover, grant of status of agriculturist is at this stage to the respondent is also not going to be of any assistance to the respondent. As benefit of the policy is only for the purpose of supporting of the family of Ex­Service Men to eke out earning to support family.

22. In view of the aforesaid, the judgment and order dated 22­05­2017 passed by the Gujarat Revenue Tribunal in Revision No. TEN/BA/394/15 deserves to and is hereby quashed and set aside. The petition stands allowed to the aforesaid extent. Rule is made absolute with no order as to costs.

Direct service is permitted.

Sd/­ (A.Y. KOGJE, J) PARESH SOMPURA