Karadia Meragbhai Kanabhai vs State Of Gujarat
2022 Latest Caselaw 1126 Guj

     C/SCA/18604/2006                             JUDGMENT DATED: 02/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 18604 of 2006


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 ?                          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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                        KARADIA MERAGBHAI KANABHAI
                                   Versus
                         STATE OF GUJARAT & 4 other(s)
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Appearance:
MR ASIT B JOSHI(2567) for the Petitioner(s) No. 1
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4,5
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                              Date : 02/02/2022
                              ORAL JUDGMENT

1. By filing this petition, the petitioner has prayed to quash and set aside impugned communication/order dated 20.2.2006 passed by respondent no.2. It is also prayed that the respondent nos.1 and 2 be directed to assess and fix the amount of premium of the subject land as on the date of first application i.e. 1987-1988 and regularize the sale transaction in favour of the petitioner by converting the tenure of the land.

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2. The facts of the case are that in the year 1955 an agriculture land bearing Survey No. 128 admeasuring 8Acre-27 gunthas situate at Mouje : Amrapur, Taluka : Maliya Hatina, District ; Junagadh (herein after referred to as subject land) was originally allotted to one Vipra Vanmali Jivram. Accordingly, revenue entry no. 224 came to be mutated in the revenue record. Subsequently, respondent no. 2 regranted some parcels of land to the original land holder as avediya and another entry being revenue entry no. 709 dtd. 19.04.1967 came to be mutated in the village form no. 6.

2.1 The petitioner states that thereafter, it appears from the revenue records of revenue entry no.895 dtd. 20.03.1970 that apropos to the permission granted by respondent no. 1 vide order dtd.03.05.1969, the subject land was transferred in the name of one Sagar Anand Ram vide sale deed dtd. 09.02.1970 executed between the original land holder and Sagar Anand Ram. It is relevant to note that in village form no. 6 in respect of all these revenue entries being revenue entry no. 224 dtd. 25.10.1956, no. 709 dtd. 19.04.1967 and 895 dtd. 20.03.1970 nowhere it is mentioned that subject land is of restricted (new) tenure land.

2.2 The petitioner states that the petitioner being an agriculturist at village : Vadodara-Dodiya, Taluka:Veraval, District:Junagadh purchased the subject land vide registered sale deed dtd. 31.03.1980 for a total sale consideration of Rs. 40,000/- from predecessor of the land, Sagar Anand Ram. It is submitted that petitioner is a bonafide purchaser of the subject land and petitioner was not aware of the tenure of the subject land as no tenure in respect of the subject land was mentioned

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in the records of rights and village form No. 6 of the subject land.

2.3 The petitioner also states that subsequently, on the basis of registered sale deed executed in favour of the petitioner, petitioner approached the revenue authority for mutation of entry in the records of rights. The revenue authority mutated revenue entry no. 1280 dtd. 29.09.1980 in favour of the petitioner, however, recorded in village form no. 6 that subject land is of new tenure land and, therefore, proceedings for breach of conditions to be initiated.

2.4 The petitioner states that respondent no. 3 in a suo motu proceedings after a period of three years, issued show cause notice dtd. 19.01.1983 for the forfeiture of subject land on the ground of alleged breach of condition. Subsequently, Dy. Collector, Veraval, by order dtd. 29.10.1984 forfeited the subject land on the alleged breach of conditions. The petitioner being aggrieved by the said order, preferred an Appeal before respondent no.2 where in respondent no. 2 vide order dtd. 15/25.10.1985 confirmed the order dtd. 29.10.1984 passed by Dy. Collector, Veraval. The petitioner at present is not having the copy of order dtd. 29.10.1984 and 15/25.10.1985 made by Dy. Collector, Veraval and respondent no. 2.

2.5 The petitioner states that being aggrieved by order passed by respondent no. 2 petitioner approached Gujarat Revenue Tribunal by way of Revision Application No. 5 of 1986 where in Hon'ble Tribunal while issuing notice vide order dtd.31.01.1986 was pleased to stay the impugned orders till the final disposal of the Revision Application. It is submitted

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that Hon'ble Tribunal by judgment and order dtd. 11.07.1986 was pleased to set aside the impugned orders passed by respondent no. 3 and respondent no. 2 and remanded the matter to respondent no. 3 for a fresh decision. The Hon'ble Tribunal also directed the authority to consider the case of the petitioner for regularization on payment of premium.

2.6 The petitioner states that to the shock and surprise of the petitioner even after remand of the matter respondent no. 3 without considering the directions issued by the Tribunal made order dtd. 27.01.1987 confiscating the subject land on the alleged breach of conditions. Being aggrieved, petitioner once again approached respondent no. 2 by filing Appeal and respondent no. 2 by order dtd. 14.11.1987 set aside order dtd. 27.01.1987 made by respondent no. 3 and again remanded the matter to respondent no. 3 to take a decision considering the direction issued by respondent no. 2 and the tribunal. 2.7 The petitioner states that in pursuance of order made by respondent no. 2, again a notice was issued by respondent no. 3 to which petitioner submitted detailed reply inter alia stating that petitioner is the bona fide purchaser of the subject land and is in possession of the subject land since 1980. That the subject land is the only source of livelihood for the maintenance of the family. At this stage it is pertinent to note that petitioner even agreed to pay the premium for regularization of the subject land. It is submitted that again on 28.07.1988 petitioner submitted application / undertaking to respondent no. 4 to regularize the sale transaction of the subject land in favour of the petitioner on payment of premium as per policy of the State Government. Thereafter, vide order dtd. 20.08.1988 respondent no. 3 passed an order to forward a

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proposal to respondent no. 2 for the regularization of the subject land.

2.8 The petitioner states that since no proposal was forwarded to respondent no. 2 from the revenue authorities, petitioner by reminder letter dtd. 09.09.1988 and 12.09.1990 requested respondent no. 4 to forward the proposal to respondent no. 2 for regularization of the subject land as petitioner is ready and willing to regularize the alleged breach of transaction on payment of premium to the State Government.

2.9 The petitioner states that once again instead of considering the amount of premium for regularization respondent no. 2 issued a notice dtd. 26.02.1991 requiring the petitioner to produce all the relevant documents for the alleged breach of conditions. The petitioner submitted detail reply by communication dtd. 26.03.1991 & 16.04.1991 and produced all the requisite documents required by respondent no. 2.

2.10 The petitioner respectfully submits that surprisingly once again respondent no. 2 issued notice dtd. 07.08.1993 similar to that of notice dtd. 26.02.1991 ignoring the fact that petitioner has already submitted a detailed reply to earlier notice. That while issuing notice dtd. 07.08.1993 respondent no. 2 has not considered its earlier order dtd. 14.11.1987, directions issued by the tribunal and the fact that petitioner has already submitted its readiness to pay the premium for alleged regularization. Thus, there is complete non application of mind on the part of respondent no. 2 in issuing notice dtd. 07.08.1993.

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2.11 The petitioner further states that time and again by representation dtd. 23.02.1995, 04.06.1997 and 26.06.2000, petitioner requested respondent authority to fix the amount of premium considering the alleged breach of condition, also considering the average sale transaction of last five years of the relevant period so as to regularize. the sale transaction in favour of the petitioner upon payment of premium. Thus, though petitioner is ready and willing to pay the premium since 1987 in accordance with the policy of the State Government, respondent authorities for the reasons best known to them, are not deciding the amount of premium and deliberately delaying the procedure for regularization of the sale transaction in favour of the petitioner.

2.12 The petitioner states that for the first time since 1987, by communication dtd. 12.12.2000 Circle Inspector of Maliya Hatina required the petitioner to pay an amount of Rs.8,07,461/- towards the premium for regularizing the sale transaction in favour of the petitioner. The petitioner by communication dtd. 30.12.2000 submitted its reply inter alia stating that the amount of premium assessed by the authorities is too high since petitioner is a poor agriculturist it is highly impossible for the petitioner to pay that amount. The petitioner also requested respondent no. 2 to revise / reconsider the amount of premium.

2.13 The petitioner states that pursuant to reply submitted by the petitioner, respondent no. 2 vide communication dtd. 12.03.2001 rejected the request of the petitioner to pay the amount of premium in installments as there are is no such

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instructions form the State Government. It appears from the above communication that District Valuation Committee has assessed the premium of the subject land @ Rs. 23 per Sq. Meter of land. The District valuation Committee has assessed the premium of the subject land as if it is a urban land and not agricultural land.

2.14 The petitioner states that time and again petitioner made several efforts and submitted its representations dtd. 27.03.2001, 15.05.2003 and 15.01.2004 to respondent authorities contending that the premium assessed by the valuation committee is on higher side and is fixed without giving any opportunity of hearing to the petitioner. The petitioner also submitted that amount of premium is too high as premium is assessed per sq. mtr. of land on the basis as if the subject land is an urban land wherein the subject land is agriculture land and therefore, amount of premium per sq. mtr. cannot be assessed for the agriculture land. The petitioner further states that since 1987 petitioner is ready and willing to pay the premium, but respondent authorities have never assessed the amount of premium and now for the first time in the year 2000 premium is assessed at the prevailing rate. Without prejudice to the rights of the petitioner, petitioner is ready to pay the premium but since petitioner being a poor agriculturist it is not possible for the petitioner to pay such a huge amount at a time. The petitioner therefore, requested to give some installments so that petitioner can pay the premium and get the subject land regularized. It is submitted that by application dtd. 15.01.2004 petitioner categorically stated that since petitioner has agreed to pay the premium in the year 1988, amount of premium should be assessed on the

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prevailing price of 1988 and also on the basis of five years average sale transactions.

2.15 The petitioner further states that respondent no. 2 by communication dtd.01.08.2005 intimated the petitioner that proposal for fixing the amount of premium to be assessed as on prevailing rate of 1988 is rejected by the State Government and therefore, petitioner is required to pay the 100% premium of the current market price failing which consequential proceedings will be initiated. The petitioner states that since the proposal forwarded by respondent no. 2 to fix the amount of premium on the basis of prevailing market price as on date of 1988, is rejected by the State Government, petitioner is constrained to approach this Hon'ble Court as the decision of rejecting the aforesaid proposal is taken by the State Government and therefore, State Government cannot adjudicate its own decision.

2.16 The petitioner states that again petitioner submitted a detailed representation dtd. 09.12.2005 to respondent no. 2. However, respondent no. 2 once again without considering the objections raised by the petitioner made impugned communication / order compelling the petitioner to pay the amount of premium fixed by respondent no. 2 failing which the subject land will be forfeited. The petitioner states that till date possession of the subject land is with the petitioner and petitioner along with its family cultivating the subject land. That the income from the agriculture is the only source of livelihood for the petitioner. Therefore, the petitioner has filed present petition.

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3. By filing affidavit in reply, it is contended on behalf of Mamlatdar, Maliya Hatina, that the petitioner had preferred an application on 17.1.2004 to regularize the sale proceedings. However, since this was a new tenure land and sale transaction was carried out without prior permission of the Government and without making payment of premium, the procedure was to be carried out accordingly. It is contended that on 29.7.1988, the petitioner had given consent before Talati, Amrapur, that he will pay the premium amount as decided by the Government. It is contended that the Revenue Department directed to make payment of Rs.8,07,961/- as premium amount against which the petitioner asked for installments, which was not granted as there is no provision of granting installments for payment of premium amount. It is contended that the petitioner did not pay any amount and entered into correspondence for reconsideration of the amount, though he has earlier admitted to pay the amount. It is contended that order passed by the authority is proper, legal and valid.

4. In rejoinder, the petitioner has adhered to earlier averments and has submitted that in view of various orders passed by this Court, the petitioner has deposited Rs.1,50,000/- on 6.10.2006 and has also deposited interest at the rate of 12% to the tune of Rs.3,10,604/- on 18.10.2006 and, thus, the petitioner deposited total amount of Rs.4,60,604/- before the concerned authority. It is also submitted that respondent no.2 has also clearly admitted that the petitioner was to pay Rs.4,46,842/-, out of which he has already deposited Rs.1,50,000/- and remaining amount of Rs.2,96,842/- was to be paid. It is also contended by the

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petitioner that against total amount of Rs.4,46,842/-, the petitioner has already deposited Rs.4,60,406/-. Therefore, it is contended that the petitioner has paid entire amount with interest at directed by the Honourable Court.

5. Heard Mr.A.B.Joshi, learned advocate for the petitioner and Mr.Nikunj Kanara, learned AGP for the respondent-State.

6. While referring to aforesaid facts as well as factum of reply and rejoinder, learned advocate Mr.Joshi for the petitioner has submitted that delay has occurred at the end of the State. He has submitted that even in the revenue record, the land was not shown as "new tenure" land. He has submitted that there was no order regarding nature of the land, whether it is "old tenure" land or "new tenure" land. He has submitted that the petitioner is in possession of the suit land for many years and the petitioner has already deposited the entire amount along with interest as ordered by this Court during the pendeny of the petition. He has submitted that before deciding the premium amount, no opportunity of being heard was afforded to the petitioner. He has submitted that since the petitioner has already deposited the amount, as aforesaid, remaining amount, if any, will be paid by the petitioner, however, the amount should be decided on the basis of price of the year 1988. He has prayed to pass appropriate order.

7. Per contra, learned AGP Mr.Nikunj Kanara vehemently submitted that the petitioner has already consented to pay the amount, which was decided by the authority, which was more than Rs.8 Lacs at the relevant time and he has only sought for

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installments, which could not be granted as there was no policy for granting installments for making payment of premium. He has submitted that the petition may be dismissed and the petitioner may be directed to pay remaining amount as already been directed by the concerned authority.

8. Heard learned advocates appearing for the parties and perused the material placed on record. It appears from material placed on record that the land in question was originally owned by one Vipra Vanmali Jivram and, thereafter, it was owned by Sagar Anand Ram. It is also revealed from revenue entry no.224 dated 25.10.1956, (page 40) that various parcels of land including Survey No.128 i.e. the land in question was allotted by the order of the Collector, Junagadh. However, there is no endorsement with regard to the land being "new tenure" land. It also reveals from revenue entry no.709 dated 11.4.1967 (page 41) that all these parcels of land were re-granted by the order of Collector, Junagadh. It also appears from revenue entry no.895 dated 20.3.1970 (page 42) that vide order dated 3.5.1969, land of revenue Survey No.128 was permitted to be sold by Vanmali Jivram to Sagar Anand Ram. In all these revenue entry nos.224, 709 or 895, there is no mention regarding the land being "new tenure" land.

9. It appears from record that on 31.3.1980 i.e. after 10 years of revenue entry no.895, the petitioner purchased the subject land by registered sale deed for agricultural purpose as per the revenue entry at page no.43. Revenue entry no.1280 dated 29.9.1980 (page 50) was mutated in favour of the petitioner. It appears that after almost three years, Mamlatdar initiated suo motu proceedings and issued notice for breach of

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condition. The land was purchased by the petitioner without prior permission of the Collector as the land was "new tenure" land. Said notice dated 19.1.1983 is at page 51 of the compilation. Thereafter, Deputy Collector, Veraval, vide order dated 29.10.1984 passed an order for forfeiting the land on the ground of breach of condition. Against that order, the petitioner approached concerned Collector by way of appeal, which came to be rejected on 15/25.10.1985. It also appears that against that order the petitioner approached learned Gujarat Revenue Tribunal, which set aside both the orders and remanded the matter back to Deputy Collector vide order dated 11.7.1986 with a direction to examine the actual tenure of land at the time of transaction for considering the case of the petitioner for regularization on payment of premium.

10. It appears that without considering these aspects, Deputy Collector vide order dated 27.1.1987 has once again passed the order of confiscation of the agricultural land. Therefore, it appears that the petitioner once again approached Collector and the Collector once again remanded the matter to the Deputy Collector vide its order dated 14.11.1987 directing to decide the case as per the direction of Gujarat Revenue Tribunal. Deputy Collector issued notice to the petitioner and asked as to whether the petitioner is ready and willing to pay the amount to get the registered sale transaction of the subject land regularized and, accordingly, the petitioner filed reply, which came to be forwarded for regularization on payment of premium in the year 1988. It appears from record that the petitioner has repeatedly approached the authority for assessment of premium from September 1988 till September 1990. However, he did not get any reply. It appears that on

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26.2.1991, i.e. after three years of willingness shown by the petitioner to pay premium in the year 1988, Collector issued show cause notice to the petitioner, which came to be replied by the petitioner along with documents. However, till 1993 no decision was taken by the concerned Collector and ultimately on 7.7.1993 without considering the fact that the petitioner had submitted detailed reply to earlier notice, Collector issued notice to the petitioner.

11. Further, it appears that the petitioner has also made representations on 23.2.1995, 4.6.1997 and even thereafter for fixing the amount of premium, however, he did not get any reply. It was the stand of the petitioner that he is ready and willing to pay the premium since 1988. Ultimately, on 12.12.2000 for the first time, the Circle Inspector asked the petitioner to pay Rs.,8,07,461/- towards premium. Against that the petitioner submitted his reply and sought for installments for payment as well as prayed to revise and reconsider the amount as he is a poor agriculturist. The request of the petitioner came to be rejected by the Collector vide communication dated 12.3.2001. Thereafter, the petitioner has made several representations and, ultimately, the Collector informed the petitioner that the Government has rejected his prayer of fixing premium as per the rate of 1988 and informed the petitioner that he is required to make payment of 100% of current market price.

12. It appears from all the aforesaid facts that the petitioner is bona fide purchaser and in the earlier revenue entries there is no mention of nature of land in question. It also appears that since 1988, the petitioner has shown his willingness to pay the

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amount of premium. It is an admitted fact that even learned Gujarat Revenue Tribunal has directed the revenue authority to consider the question about nature of land and also permitted for regularization of land of the petitioner on making payment of premium. This order of Gujarat Revenue Tribunal is of 1986. The Government officials have remained dormant for almost 13 years, for which there is no fault on the part of the petitioner. It is an admitted fact that, during the pendency of the petition, it was recorded by the District Collector that though valuation in the year 1988 was Rs.1,40,428/- but he is insisting for the valuation of the year 2005. Thus, had the decision been taken by the concerned authority in time initially when it was directed by Gujarat Revenue Tribunal in 1986 to assess the premium amount, the matter ought to have been decided and the amount ought to have been received by the exchequer at the relevant point of time. However, as observed herein above, the officers have remained dormant and the action has been taken after inordinate delay. As it is not the case of the respondent that, at no point of time, the petitioner was at fault, rather it is otherwise. The Government officials have even not bothered to read the order of Gujarat Revenue Tribunal, which was of 1986 and it is binding upon the revenue authorities. It appears that all the subsequent orders passed thereafter are nothing but non-application of mind on behalf of the concerned revenue authorities. It is also admitted fact, as observed in the rejoinder affidavit, the petitioner has already paid an amount of more than Rs.4,00,000/- as ordered by this Court. Since there was no fault of the petitioner and the authority ought to have decided the application of the petitioner in the year 1988 itself, that too on the basis of direction of Gujarat Revenue Tribunal, the authority concerned

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is to be directed to consider the application dated 28.2.2006 submitted by the petitioner for re-consideration of the matter in accordance with law and especially keeping in mind the observations made herein above. At the same time, while deciding the application, the amount deposited by the petitioner shall be adjusted against the amount, if any, needs to be paid by the petitioner.

13. In view of the aforesaid discussion, present petition is partly allowed. The impugned communication/order dated 20.2.2006 passed by respondent no.2 is quashed and set aside. Respondent no.2 is hereby directed to consider the application dated 20.2.2006 submitted by the petitioner afresh and in accordance with law, after affording opportunity of being heard to the petitioner. Such application shall be decided within a period of three months from the date of receipt of copy of this order. The amount deposited by the petitioner pending petition shall be adjusted, at the time of passing of order, if the petitioner is required to be pay any further amount. Rule is made absolute accordingly. No order as to costs.

Sd/-

(DR. A. P. THAKER, J) R.S. MALEK