Gujarat High Court
Nikhilbhai Jayantibhai Tilala vs State Of Gujarat on 22 April, 2022
Bench: A. P. Thaker
C/SCA/4616/2018 JUDGMENT DATED: 22/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4616 of 2018
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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NIKHILBHAI JAYANTIBHAI TILALA & 2 other(s)
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
MR BHARAT T RAO(697) for the Petitioner(s) No. 1,2,3
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1,2,3,4,5
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CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 22/04/2022
ORAL JUDGMENT
1. By filing present petition, the petitioners have challenged
the order dated 28.2.2018 passed by Assistant Collector,
Rajkot Rural Prant, cancelling earlier order dated 10.6.2017 of
promulgation and making new promulgation by changing the
location of the land of the petitioners and further prayed to
direct Assistant Collector, Rajkot Rural Prant to restore earlier
C/SCA/4616/2018 JUDGMENT DATED: 22/04/2022
order dated 10.6.2017 of promulgation and process the
application for N.A. made by the petitioners.
2. The brief facts of the case are as under:-
2.1 By order dated 1st August 1971, Prant Officer, Morbi, land
bearing Survey Number 140 admeasuring 7 acres of Village-
Amreli, Taluka Paddhari, District-Rajkot was granted to
Bharwad Vaja Bhala as New Tenure land as per the policy of
the Government. The Circle Inspector while giving possession
drew rojkam of the process in which four boundaries of land
bearing Survey Number 140 (Paiki) 8 admeasuring 7 acres was
shown. Thereafter the name of Bharvad Vaja Bhala has been
entered in the revenue record by Entry No.236 on 21 st October
1973 which has been certified by the competent authority on
26th March 1974 from the aforesaid 7 acres of land, road has
been passing which is known as road going from Amreli to
Dholakiya. As per the Government policy, the land was
converted from New Tenure to Old Tenure by order of
Mamlatdar dated 17th March 2003 and Bharwad Vaja Bhala
paid premium of Rs.1575/- on 12 th February 2002. At the time
of passing the order, Panch Rojkam was carried out by the
Talati cum mantri of Amreli wherein also four boundaries of the
land have been described, however, Deputy Collector took it in
suo motu revision, which was confirm on 26-5-2004.
2.2 The order of the Mamlatadar converting the land from
New Tenure to Old Tenure has been mutated in the revenue
record by entering No.1891 dated 19 th September 2006 which
was certified by the competent authority on 4th November
2006. Bharvad Vaja Bhala sold the land to Shri Mansukhbhai
C/SCA/4616/2018 JUDGMENT DATED: 22/04/2022
Ratanshibhai Boraniya and Chimanbhai Trikambhai Rasadiya
on 15th February 2007 by registered Sale Deed No.1911 in
which also description of the land was provided. The names of
the purchases were also mutated by entry No.1932 on 9 th April
2007 which was certified on 12th July 2007. Shri Mansukhbhai
Ratanshibhai Bhoraniya and Chimanbhai Trikambhai Rasadiya
have sold the land to Shri Dhirajlal Mohanlal Sorathiya and Shri
Rajeshbhai Praveenchandra Manseta by registered Sale Deed
No.19959 on 3rd October 2007, wherein also description of land
was given and it was stated that road is passing from the said
land. The names of new purchases were also mutated by entry
No.2173 on 8th January 2008 which was certified on 3 rd July
2008. It is also contended that the Government ordered
promulgation of village Amreli and entry thereof was made by
entry No.3897 for survey numbers 0 to 9068. Thereafter the
DILR gave new survey numbers and land Survey No.140 (8)
was given new Survey No.522 admeasuring 2 Hectare 83 Are
and 28 sq.mtrs. and Entry No.3988 came to be made which
was certified on 30th May 2016 in the revenue record.
According to the petitioners, the land in question was not
promulgated, the predecessors in title of the petitioners
applied to DILR with copies of village form No.7 & 12 and
panchnama dated 9th May 1972.
2.3 It is contended that pursuant to the application made by
Shri Dhirajlal Mohanlal Sorathiya and Rajeshbhai Pravinchandra
Manseta, the Deputy Collector and DILR have examined the
case and prepared KJP SR.No.170/16-17 dated 30 th June 2017
and land owned by Shri Dhirajlal Mohanlal Sorathiya and Shri
Rajeshbhai Pravinchandra Manseta has been given two survey
numbers namely Survey No.86 admeasuring 0 Hectare, 60 Are
C/SCA/4616/2018 JUDGMENT DATED: 22/04/2022
and 78 Sq.mtrs. and Survey No.121 admeasuring 2 Hectare, 22
Are and 50 sq.mtrs. and entry No.4136 was based on 5 th
August 2017. The respondent no.4 also prepared map
pursuant to the application of Shri Dhirajlal Mohanlal Sorathiya
and Shri Rajeshbhai Pravinchandra Manseta wherein also road
has been shown as passing through the said land. It is also
contended that the boundary of the land has been shown by
the authority in the map as per promulgation and there also on
the eastern side there is road going from Amreli to Dhokaliya.
It is further submitted that at the time of promulgation, the
Surveyor has prepared map and the land in question wherein
Survey No.86 is on one side of the road and Survey No.121 is
on the other side of the road. That the land in question that is
Survey No.140 paiki 8 has been divided in different survey
numbers. The Assistant Collector and Sub divisional
Magistrate, Rajkot Rural Prant on 5th September 2017 in
exercise of powers conferred upon him by Government has
passed order of promulgation that from Old Survey No.140
(paiki)/8 the new survey numbers 86, 121 and 122 part are
promulgated under the Gujarat Land Revenue Code and
accordingly new survey numbers are given and old survey
numbers are discontinued and all relevant entries should be
posted in the new survey numbers. In the year 2017, the
mutation entry has been made in the revenue record by entry
No.4138 on 5th July 2017, which was certified by the Circle
Officer on 19th August 2017 wherein promulgation has been
recorded. There after new village Form No.7 and 12 for land
bearing Survey No.86 and 121 were prepared.
2.4 It is also contended by the petitioners have purchased
the land in question by three different Sale Deeds registered at
C/SCA/4616/2018 JUDGMENT DATED: 22/04/2022
serial number 1121, 1122 and 1123 from the owners thereof
for setting up industrial unit and their names were mutated by
entry No.4149, 4150 and 4151 respectively which were
certified on 6th October 2017 and thereafter their names are
also affected in village Form Nos.7 and 12 for Survey Nos.86
and 121. Thereafter the petitioner submitted an application for
non agricultural permission as they wanted to set up the
industries upon the land. It is the case of the petitioner is that
on the one side of petitioner's land there is a Government
waste land which is open and nobody is possession thereof.
Further from the said Government waste land, soil has been
dug out for the purpose of construction of road and it was a
ditch of approximately 40 feet depth. It is contended that on
12th January 2018, DILR has prepared Hissa Mapni Form Nos.11
and 15-A, Hissa Form No.4 and, as per the said forms, survey
Nos.86 and 121 (old Survey No.140 paiki/8) are in the names
of the petitioners. These forms were prepared on 4 th December
2017 and accordingly map KJP has been prepaid wherein also
petitioner's land bearing Survey Nos.86 and 121 are on both
sides of the road going from Amreli to Dhokaliya. Thereafter
copy of auto mutation certificate has been given for Survey
Nos.121 and 121 paiki 1 admeasuring 8296 sq.mtrs. and 1
hectare, 39 Are and 54 sq.mtrs. It is contended that all the
things were done by the authority on its own. That original
Survey No.121 has been divided in Survey No.121 and
121(paiki)1. That this was done by on his own without any
application from any aggrieved person. Further, it is mentioned
that on 16th January 2018, application was made but it is not
correct and based upon this Assistant Collector passed order
cancelling the promulgation of 10 th June 2017 for Survey
Nos.86, 121 and 122. The petitioner has challenged this order
C/SCA/4616/2018 JUDGMENT DATED: 22/04/2022
of the Assistant Collector that it was passed without hearing
them and without authority.
3. Heard learned Advocate Shri B.T.Rao for the petitioners
and learned AGP Shri Nikunj Kanara for the State at length and
perused the materials which are placed on the record by the
parties.
4. Learned advocate Shri B.T.Rao for the petitioners has
vehemently submitted the facts narrated in the memo of
petition and has submitted that earlier Deputy Collector has
made promulgation in 1972 and there was no authority vested
in the Assistant Collector to cancel the same. He has further
submitted that the impugned order has been passed by the
authority without any opportunity of being heard given to the
petitioners. It is also contended that the Deputy Collector is not
the appellate authority. According to him, when an order is
passed by the Deputy Collector, another Deputy Collector
cannot make any order against the order passed by his
predecessor in office. He has played to allow present petition
by setting aside the impugned order.
5. Learned AGP Shri Kanara for the State has vehemently
submitted originally the land was in one part only. It is also
submitted that if we compare the description of the land as per
the report of the Mamlatdar, it reveals that the situation of the
land has been changed and there are parts of the land. It is
also submitted that there is a change of location and therefore
on the basis of the report the Mamlatdar, the impugned order
has been passed. According to him, the order of the revenue
authority is legal and proper. He has prayed to dismiss the
present petition.
C/SCA/4616/2018 JUDGMENT DATED: 22/04/2022
6. In rejoinder, learned advocate Shri B.T.Rao invited the
attention of the Court to the promulgation made before nearly
30 years and there is a partition of the land, which was made
by the Government offices and has submitted that Government
has changed the location and therefore the petitioner may not
be put to disadvantage due to the action of the authority. He
has prayed to allow the petition.
7. Having considered the submission made on behalf of
both the sides coupled with the material placed on record, it
emerges that there is no dispute regarding the facts that
originally the land in question was allotted to the landless
person as per the policy of the State Government as santhani
land and thereafter converting the land in question into Old
Tenure land. Three times the land in question was transferred
by way of registered Sale Deed and the present petitioners are
the third purchasers of the land in question by registered Sale
Deed. According to the respondent, originally the land in
question was in one part and thereafter the same was divided
in two different parts on different location, which, itself is
suggesting the fact that there is change of location of the land
in question and, therefore, when such facts came to the notice
up Mamlatdar, Padadhari, vide communication dated 28th
February 2018, he has addressed this discrepancy to the
office of the Collector and considering the said report, the
revenue authority passed the order dated 28th February 2018
which is absolutely just and proper, in view of the fact that
there is a change of location of the land in question.
C/SCA/4616/2018 JUDGMENT DATED: 22/04/2022
8. It appears from the record that, originally the land in
question was allotted to Bharwad Vaja Bhala as New Tenure
land as per the policy of the Government and the possession
was handed over by drawing panchnama dated 9 th May 1972.
Along with the possession receipt, rough sketch was attached,
which clearly reveals that the land was originally allotted in
one single part. Thereafter, land in question was converted
into Old Tenure as per the policy of the State Government by
way of order passed in 2003 by the office of the Mamlatdar. It
also appears that thereafter the land in question came to be
transferred to various parties by registered Sale Deed and
revenue entries recording the same were made. It appears
that the present petitioners are the third purchasers of the
land in question by registered Sale Deed No.1121 dated 30 th
August 2017, Sale Deed No.1122 dated 30 th August 2017 and
Sale Deed No.1123 dated 30 th August 2017 and by revenue
entries No.4149, 4150 and 4151 dated 6 th October 2017, their
names came to be mutated in the revenue record of the land
in question. It also appears that the petitioners made an
application for making the payment of premium for non-
agricultural usage of the land in question by way of application
dated 27th September 2017. It appears that the Mamlatdar has
reported that there is a change of location of the land in
question and the land is not in one part.
9. It appears from record that earlier there was survey
made in Village-Amreli, Taluka-Paddhari, District-Rajkot, and
thereafter there was promulgation of re-survey wherein Old
Survey No.88 was shown as Survey No.111 to 116 and Survey
No.140 came to be re-numbered as Survey No.86, 121 and
122. From the map at page 153 of the compilation, it appears
C/SCA/4616/2018 JUDGMENT DATED: 22/04/2022
that there is one way passing from portion of land adjoining to
Survey No.111 to 116 and corner of Survey Nos.116 and 117 is
referred to as "way going to Dhokariya". It also appears from
this map that certain portion of land of Survey No.88 and
others, road is passing through the same. It also appears from
map at Exh.67 prepared by DILR, the existing way has been
shown between land of Survey No.86 and Survey No.121 paiki.
Thus, it appears that Old Survey No.88 and 140 came to be re-
numbered and there is a way passing between Revenue
Survey No.86 and 121. The say of the petitioner that after
allotment of land in 1972, way to Dhokariya passed through
plots and, therefore, both the lands are not adjoining in
condition and this has not be denied by the authority in its
affidavit in reply. It is also pertinent to note that earlier
promulgation order was passed by the same authority and the
same authority has set aside its earlier order. It is well settled
that if any authority is aggrieved by the order having
concurrent jurisdiction or equivalent in category, then course
open to such authority is to file appropriate appeal or revision
before higher authority. The same authority cannot take into
review its own order. In this case, same authority has passed
the impugned order cancelling its earlier order, which is not
permissible under law.
10. On perusal of the impugned order, it appears that the
order has been passed on the basis of the report made by the
Mamlatdar, that too, without any notice being issued to the
petitioners herein. Thus, there is non-compliance of the
principles of natural justice. Therefore, the impugned order is
not sustainable in the eyes of law. It deserves to be set aside
and the matter needs to be remanded back to the concerned
C/SCA/4616/2018 JUDGMENT DATED: 22/04/2022
authority to decide afresh after affording proper opportunity of
being heard to the all concerned parties.
11. In view of above discussion, present petition is partly
allowed. The impugned order dated 28.2.2018 passed by
Assistant Collector, Rajkot Rural Prant, cancelling earlier order
dated 10.6.2017 of promulgation and making new
promulgation by changing the location of the land of the
petitioners is quashed and set aside. The matter is remanded
back to the revenue authority to decide the same afresh after
affording an opportunity of hearing to both the sides. He shall
also consider the application for N.A. permission made by the
petitioners with regard to the land in question. Such exercise
shall be completed within a period of three months from the
date of receipt of copy of this order. No order as to costs.
Sd/-
(DR. A. P. THAKER, J)
R.S. MALEK
