Jethalal Narandas Chothani vs State Of Gujarat
2022 Latest Caselaw 9743 Guj

      C/SCA/13278/2019                             JUDGMENT DATED: 01/12/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 13278 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE
===============================================================
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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                         JETHALAL NARANDAS CHOTHANI
                                    Versus
                              STATE OF GUJARAT
================================================================
Appearance:
MR BY MANKAD(440) for the Petitioner(s) No. 1,2
MR. JAYNEEL PARIKH, AGP, for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2,3
===============================================================
    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 01/12/2022
                               ORAL JUDGMENT

[1] Rule. Learned Assistant Government Pleader waives service of rule on behalf of respondent No.1.

[2] This petition under Article 226 of the Constitution of India is filed by the petitioner for quashing and setting aside the order dated 16.03.2018 passed by the Secretary (Appeals) Revenue Department in Revision No.MVV/bkhp/Suo motu/kachchh/4/2017.

       C/SCA/13278/2019                           JUDGMENT DATED: 01/12/2022




[3]       Learned advocate for the petitioners has raised three grounds

to the challenge. First being that the order of grant of NA in favour of original land owner Chunilal Mulji Dedhiya in connection with survey No.110/1, 110/2 and 110/3 paiki of village Sadau, Taluka: Mudra, which was granted on 08.05.2007 has been called in question on the basis of a proposal made by the District Development Officer in his communication dated 15.12.2017, which is after a period of 10 years. The second ground raised by the petitioners is that the proceedings had taken place behind the back of the petitioners as despite there being an order for submitting a report regarding the present status and occupiers of the land and the Mamlatdar still having made report showing the names of the petitioners as one of the occupiers, the show-cause notice issued by the Secretary was only in the name of original land owners, wherein names of none of the subsequent occupiers of the land including the petitioners are reflected.

[3.1] Learned advocate has thereafter submitted that while passing the impugned order, the authority has considered that the title of the petitioners/their predecessor in title was under cloud. Learned advocate for the petitioners submitted that in view of the aforesaid, the petitioners who are the subsequent purchasers and are in occupation since long, have now been prejudiced by the order which is passed behind their back without following the principle of natural justice.

[4] Learned Assistant Government Pleader opposing the grant of petition has drawn attention of this Court to the proposal of the District Development Officer to indicate the manner in which the title of the original owner was under cloud.

       C/SCA/13278/2019                        JUDGMENT DATED: 01/12/2022




[5]       Though learned advocate Mr. H.S.Munshaw appearing for the

respondent Nos.2 and 3 has filed a sick note today, the affidavit in reply on behalf of Taluka Development Officer is on record, essentially is narrating the chronology of event without there being any opposition to the petition as the order of grant of NA was by the very authority.

[6] The Court has heard learned advocates for the parties and perused the documents placed on record. The issue pertains to survey No.110/1, 110/2 and 110/3 which are now converted into plot Nos.76 to 84 in the revenue record of village Sadau, Taluka: Mundra. The present petitioners are the purchasers of plot Nos.76 to 84 and 29 to 33, 35 to 37, 188 to 190 and 192. The petitioners are occupying the plots of land by way of registered sale deed which has been entered in the office of Sub-Registrar. The said transaction had taken place after the order of the Taluka Development Officer dated 08.05.2007, declaring the aforesaid land as non-agricultural land. It appears that after a period of 10 years, the District Development Officer made a proposal dated 15.12.2017 to the Secretary (Appeals), wherein indicating that the grant of NA is required to be cancelled by taking the proceedings under the revision. It is pertinent to observe that such a proposal has been made by the District Development Officer after a period of 10 years which in the opinion of the Court, is at a belated stage more particularly when subsequent changes have been taken place in connection with the land in question pursuant to the orders sought to be revised. In the proposal, the main ground for taking the order under revision is a cloud over the title in view of the entry in connection with one of the survey numbers, wherein reference is made to entry No.355 and entry No.201 by which, according to the

C/SCA/13278/2019 JUDGMENT DATED: 01/12/2022

record, the land had fallen in name of Sandh Abdulla Bachu. Further, the proposal itself would go on to indicate that after the entry of promulgation and the land being treated as an old tenure land after paying the penalty, entry in the survey No.110/2 in the name of Sandh Abdulla Bahchu vide entry No.201 was not supported by any documentary evidence and it is also held in the very communication that without there being any order, entry No.355 in survey No.110/2 of Sandh Abdulla has been posted. In the opinion of the Court, when the entry in the name of Sandh Abdulla Bachu was not supported by any documentary evidence on record and therefore, title of said person would be in question and not that of a person who was from the initial point was in possession and occupation of the land i.e. predecessor in title-Shri Chunilal Mulji Dedhiya. One important aspect which requires consideration is the order passed by the Mamlatdar in Case No.1678(A)/2006 wherein in connection with the aforesaid land, following order came to be passed:-

" The occupancy price of Rs.45 as per Section 7(3) of the Inams Abolition Act for the land at Saadau Village, Taluka Mundra, S.No.110/1, 110/2 and 110/3 admeasuring 7-00, 2-19 and 1-38 acre - guntha respectively is deposited by the name of Shri Mulji Kanji Dedhiya on 25/09/2006 in the State Bank of India, Bhuj vide challan No.4329753. It is hereby ordered to pay this amount of Rs.45 to Dwarkanath Jagir. Further, it is hereby ordered to confer the occupancy right on the name of Shri Shah Mulji Kanji Dedhiya on the condition of repaying the fine of Rs.500/- at the rate of Rs.250/- for each selling for the selling transactions done without prior permission."

[7] In the opinion of the Court, once this order has been passed after considering the revenue record, the Court does not find that there was any cloud over the title of the said Chunilal Mulji Dedhiya for his disposing capacity to the petitioners.

       C/SCA/13278/2019                         JUDGMENT DATED: 01/12/2022




[8]       The Court also finds that pursuant to the proposal made by

the District Development Officer, the show-cause notices were to be issued however, for the purpose, remarks were made for the District Development Officer to undertake a verification by his sub-ordinates for the purpose of bringing on record the existing situation of the land as well the occupiers of the land. Accordingly, the report was submitted by the sub-ordinate officer vide a communication dated 19.02.2018, wherein the petitioners have been named in the report to be occupiers of the plots with Khata No.433. Despite this being the position, it was incumbent upon the Secretary before entering into the proceedings to issue the notice to the petitioners and provide an opportunity of hearing. As the proceedings have culminated absence of the petitioners and that no opportunity of hearing has been provided, the Court is inclined to quash and set aside an order dated 16.03.2018 passed by passed by the Secretary (Appeals) Revenue Department in Revision No.MVV/bkhp/Suo motu/ kachchh/4/2017. As as a consequence, the order dated 08.05.2007 by the Taluka Development Officer is restored.

[9] With the aforesaid, the petition stands allowed. Rule is made absolute to the aforesaid extent. Direct service is permitted.

(A.Y. KOGJE, J) SIDDHARTH