Rabari Shankarbhai Shaklabhai vs State Of Gujarat
2022 Latest Caselaw 1475 Guj

    C/SCA/15056/2019                              JUDGMENT DATED: 09/02/2022




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD


              R/SPECIAL CIVIL APPLICATION NO. 15056 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI 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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                       RABARI SHANKARBHAI SHAKLABHAI
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR NISHIT P GANDHI(6946) for the Petitioner(s) No. 1
MR KRUTIK PARIKH, AGP for the Respondent(s) No. 1,2,3,4
NOTICE SERVED BY DS for the Respondent(s) No. 5
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                              Date : 09/02/2022

                              ORAL JUDGMENT

1 By way of this petition, the petitioner has

challenged the order dated 17.7.2019 passed by the

Special Secretary, Revenue Department (Disputes) in

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rejecting the Revision Application

No.MVV/CON/BNK/1/2019 preferred by the petitioner and

confirming the order dated 22.9.2009 passed by the

Deputy Collector, Deesa in Fragmentation Case

No.105/2009.

2 Heard Mr. Nishit Gandhi, learned advocate

for the petitioner and Mr. Krutik Parikh, learned AGP

for the respondent Nos.1 to 4. Though served, no one

appears for the respondent No.5. By consent of the

learned advocates for the parties, the matter is

taken up for final hearing. Rule, Mr. Krutik Parikh,

learned AGP waives service of notice of rule on

behalf of respondent Nos.1 to 4.

3 It is the case of the petitioner that the

dispute pertains to the land situated at Revenue

Survey No.370 (0-18-80 Ha-Ra-Sqm.((Old Survey

Nos.7/2, 7/3 and 7/4 of Village Khodala, Taluka

Kankrej, District Banaskantha (for short, `the land

in question').

3.1 The land in question was originally

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registered as fragment land vide entry No.114 dated

28.2.1960. The father of the petitioner was the owner

of the land situated at Old Revenue Survey No.7/3 and

upon his death, name of the petitioner and other

heirs were mutated in respect of the land in question

vide entry No.442 dated 27.8.1992. The adjoining land

having old Survey Nos.7/2 and 7/4 belong to the

family members of the petitioner and vide entry

No.561 dated 11.9.2000 by way of family arrangement,

all these three revenue survey numbers came to the

share of the petitioner and the aforesaid entry

No.561 was certified on 13.10.2000. By virtue of the

aforesaid family arrangement, the petitioner became

the owner of the land bearing Revenue Survey No.7/3

as well as Revenue Survey Nos.7/2 and 7/4 which

according to the petitioner were the survey numbers

of contiguous lands. According to the petitioner, the

land in question is irrigated land and the aforesaid

status of the land being irrigated land is also

reflected in the revenue records in the form of 7/12

extracts.

3.2 It is the case of the petitioner that in

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the year 2009, after delay of 9 years, the Deputy

Collector, Deesa initiated suo motu proceedings for

breach of Section 7 of the Prevention of

Fragmentation and Consolidation of Holdings Act, 1947

(for short, `Fragmentation Act') being Fragmentation

Case No.105 of 2009 and without even serving the

notice upon the petitioner, the Deputy Collector,

Deesa passed order dated 22.9.2009 and held that

entry No.561 dated 11.9.2000, in respect of transfer

of land in question in favour of the petitioner, is

in breach of Section 7 of the Fragmentation Act.

Hence as per Section 9(1), the aforesaid transfer was

held to be invalid and a fine of Rs.250/- was imposed

upon the petitioner and as per section 9(3) of the

Fragmentation Act, the petitioner was directed to be

evicted summarily.

3.3 It is the case of the petitioner that as

the petitioner was never heard inasmuch as no notice

was ever issued to the petitioner, the petitioner was

unaware of the fact that the order dated 22.9.2009 in

Fragmentation Case No.105 of 2009 was ever passed by

the Deputy Collector, Deesa. Hence, the proceedings

C/SCA/15056/2019 JUDGMENT DATED: 09/02/2022

were concluded ex parte. Ultimately, when the

petitioner came to know about the same and when

applied for certified copy of the aforesaid order, on

receipt of the certified copy, the petitioner came to

know that the notice was served upon his brother viz.

Ramjibhai with whom the petitioner does not have even

talking terms since last 20 years nor he is the power

of attorney of the petitioner.

3.4 As the petitioner came to know about the

aforesaid order dated 22.9.2009 in the year 2019, the

petitioner challenged the said order dated 22.9.2009

passed in Fragmentation Act Case No.105 of 2009 by

the Deputy Collector, Deesa before the Special

Secretary, Revenue Department (Appeals) by preferring

revision Application No.MVV/CON/BNK/1/2019 and the

aforesaid revision application was preferred by the

petitioner along with application condonation of

delay. Ultimately, after hearing the petitioner, the

learned Special Secretary, Revenue Department

(Appeals), Ahmedabad vide order dated 17.7.2019

rejected the revision application preferred by the

petitioner by confirming the order dated 22.9.2009

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passed by the Deputy Collector, Deesa in

Fragmentation Act Case No.105 of 1009 (however in the

operative portion of the order it is mentioned as

Deputy Collector, Dhrangadhra).

3.5 Mr. Nishit Gandhi, learned advocate for the

petitioner submitted that the impugned order passed

by the Deputy Collector dated 22.9.2009 and the order

dated 17.7.2019 passed by the Special Secretary,

Revenue Department (Disputes) are illegal and

contrary to the settled principles of law for the

reasons that for the transaction took place in the

year 2000, entry No.561 was mutated, which was taken

into suo motu revision after a period of 9 years in

the year 2009. The aforesaid delay in initiating suo

motu proceedings can be said to be unreasonable delay

in initiating the proceedings, and therefore, on that

count itself the orders are bad and are required to

be quashed and set aside.

3.6 However, on merit of the case, learned

advocate Mr. Gandhi submitted that survey No.7/3 was

already been held by the petitioner, whereas survey

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Nos.7/2 and 7/4 had come to the share of the

petitioner by way of family arrangement. As survey

Nos.7/2 and 7/4 are contiguous lands, when the

petitioner has become owner of the aforesaid two

parcels of land by way of family arrangement as both

these two parcels of land are contiguous, it would

not amount to breach of provisions of Section 7 of

the Fragmentation Act. Learned advocate Mr. Gandhi

further submitted that the land is irrigated land,

and therefore also, both the authorities below have

wrongly declared the transaction in respect of the

land in question to be in breach of Section 7 of the

Fragmentation Act and have passed the impugned orders

contrary to the provisions of law. Learned advocate

Mr. Nishit Gandhi has relied on the following

judgments to substantiate his contentions:

[1] Paliben Wd/o. Kikubhai Kuvariyabhai Koli

Patel vs. Dy. Collector, Valsad reported in

2013(1) GLR 231.

[2] Rathod Nayamatkhan Ahmedkhan, deceased,

through his heirs and legal representatives,

C/SCA/15056/2019 JUDGMENT DATED: 09/02/2022

Sardarkhan Nayamatkhan Rathod & Ors. vs.

M.K.Dass, or his successor in office of Deputy

Collector, Dabhoi & Ors. reported in 1998(2) GLH

459.

[3] Ramsingbhai Bavlabhai Koli vs. State of

Gujarat reported in 2014(1) GLR 436.

[4] Vitthalbhai M. Patel vs. Deputy Collector

Karia reported in 2011(1) GLR 610.

[5] Ravindrabhai Chhotabhai Patel vs. State of

Gujarat reported in 2014(2) GLR 1315.

3.7 Learned advocate Mr. Gandhi has also relied

upon the Government Resolution dated 10.6.2013

whereby the Revenue Department has issued guidelines

in respect of provisions of Fragmentation Act. As per

the aforesaid Government Resolution, if a land is

transferred to the owner of the contiguous land, the

aforesaid fragmentation of land is required to be

consolidated.

C/SCA/15056/2019 JUDGMENT DATED: 09/02/2022

3.8 By relying upon the judgment in the case of

Paliben Wd/o. Kikubhai Kuvariyabhai Koli Patel

(supra), learned advocate Mr. Nishit Gandhi submitted

that in the aforesaid case, the proceedings under

Section 9 were initiated after a period of 8 years

and this Court held that the proceedings were

initiated after an unreasonable delay and ultimately

struck down the proceedings on the ground of delay.

3.9 To substantiate the contention in respect

of delay, learned advocate Mr. Gandhi relied upon the

judgment in the case of Ramsingbhai Bavlabhai Koli

(supra) wherein the proceedings under the

Fragmentation Act were initiated after a period of 27

years and ultimately this Court quashed and set aside

the impugned orders and allowed the petition.

3.10 Learned advocate Mr. Nishit Gandhi also

relied upon the judgment of this Court in the case of

Vitthalbhai M. Patel (supra) wherein also the action

taken by the authority after a delay of 12 years and

this Court has quashed the orders passed by the

authority by allowing that petition.

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3.11 Learned advocate Mr.Gandhi by relying upon

the judgment in case of Rathod Nayamatkhan Ahmedkhan

(supra) further stated that before exercising powers

under Section 9 of the Act after a long lapse, the

authority was required to consider the important

aspects viz. (1) Whether the purchaser has altered

his position by constructing permanent superstructure

on the land or by incurring substantial expenditure

for developing the land; (2) Whether the purchaser

was guilty of any fraud or suppression of material

facts before the authorities; and (3) If two views

are possible on merits, the authority should not

interfere with the transaction, merely because it is

possible to take a view for invalidating the

transaction in question. Learned advocate for the

applicant further submitted that the authority has

not considered the above aspects, and therefore, also

the impugned orders are contrary to the settled

proposition of law and deserves to be quashed and set

aside.

3.12 He submitted that in the instant case, no

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such exercise was carried out by the authority, and

therefore also the impugned order is bad and deserves

to be quashed and set aside.

3.13 By making the aforesaid submissions, Mr.

Nishit Gandhi, learned advocate for the petitioner

prayed for quashing and setting aside the impugned

orders.

4 Mr. Krutik Parikh, learned AGP appearing

for the State respondents vehemently opposed the

petition and submitted that the orders passed by the

authorities below are just and proper. Learned AGP

submitted that the division of the land has taken

place between the petitioner and his cousin, and

therefore, before any such transfer, prior permission

of the authority was required to be taken and since

prior permission was not taken, both the authorities

below have rightly declared the transaction to be in

breach of Section 7 of the Fragmentation Act and

passed the impugned orders, which are under challenge

in this petition. Mr. Parikh, learned AGP drew the

attention of this Court to the affidavit in reply

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wherein it is sated that the Talati-cum-Mantri has

produced the record of the land in question wherein

it is observed that the land in dispute is not an

irrigated land. By making the aforesaid submissions,

Mr. Krutik Parikh, learned AGP prayed for dismissal

of the petition.

5 Having heard learned advocate for the

petitioner, learned AGP for the State respondents and

on perusal of record of the case, it transpires that

it is an undisputed fact that the petitioner has

become owner of the land bearing revenue Survey

Nos.7/2 and 7/4 by way of family arrangement and for

that entry No.561 was mutated on 11.9.2000, and

therefore, the petitioner was in possession of all

three survey numbers viz. 7/2, 7/3 and 7/4 ever since

the family arrangement took place. It is also not

disputed by way of the affidavit filed by the Deputy

Collector, Deesa that survey Nos.7/2 and 7/4 are not

contiguous lands to the land originally belong to the

petitioner.

5.1 The record also reveals that in respect of

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the aforesaid transaction, the proceedings under the

Fragmentation Act were initiated only in the year

2009. In fact, the petitioner has produced at

Annexure-C the notice issued by the Deputy Collector,

Deesa dated 7.7.2009 and the photocopy of the said

notice indicates that the aforesaid notice was

received by the brother of the petitioner and not by

the petitioner. Further, the impugned order dated

29.9.2009 passed by the Deputy Collector, Deesa also

makes it clear that the petitioner did not remain

present on the date on which the proceedings before

the Deputy Collector in Fragmentation Act were heard

i.e. on 20.7.2009.

5.2 The Deputy Collector, Deesa has passed the

impugned order without assigning any reasons and

straightaway reached to the conclusion that the land

in question is not an irrigated land. Except by

observing the fact that the land purchased by the

petitioner is of less area than the minimum area

prescribed under the law and that the land is not an

irrigated land, no other findings are recorded by the

Deputy Collector, Deesa and even the basis of the

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aforesaid findings are also not stated in his order

by the Deputy Collector, Deesa.

5.3 The Secretary, Revenue Department (Appeals)

by passing the impugned order dated 17.7.2019 came to

the conclusion that the findings of the Deputy

Collector, Deesa are just and proper for the reasons

that the Deputy Collector has arrived at the

aforesaid conclusions by examining the record, site

and necessary documents and also rejected the

revision application preferred by the petitioner as

the same was preferred after a delay of 10 years and

also by stating that the notice was received by

Ramjibhai on behalf of Shankarbhai and hence it

cannot be said that the notice was not served upon

the petitioner.

5.4 Now in view of the aforesaid overall facts,

the matter is required to be considered in light of

the judgments cited by learned advocate Mr. Gandhi as

well as the basis of Government Resolution dated

10.6.2013. Further, in the case of Rathod Nayamatkhan

Ahmedkhan (supra), this Court in para 5 held as

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under:

"5. Having heard the Learned Counsel for the parties, This Court is of the view that in such matters, if the authority exercises the powers under Section 9 of the Act after a long lapse of time, the authority must consider the following important aspects:

      (1)      Whether    the        purchaser         has       altered            his
      position           by             constructing                    permanent
      superstructure          on      the      land    or      by      incurring

substantial expenditure for developing the land.

(2) Whether the purchaser was guilty of any fraud or suppression of material facts before the authorities.

(3) If two views are possible on merits, the authority should not interfere with the transaction, merely because it is possible to take a view for invalidating the transaction in question."

5.5 Considering the aforesaid judgments in the

cases of [1] Paliben Wd/o. Kikubhai Kuvariyabhai Koli

Patel (supra), [2] Ramsingbhai Bavlabhai Koli

(supra), [3] Vitthalbhai M. Patel (supra), [4]

Rathod Nayamatkhan Ahmedkhan (supra) and [5]

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Ravindrabhai Chhotabhai Patel (supra) coupled with

the fact that the Government itself has come with

Government Resolution dated 10.6.2013 whereby also if

the land is purchased by a person, who is having

contiguous land in that case the petitioner's case

would be covered not only by the above referred

judgments, which are in respect of delay in

initiating the proceedings under the Fragmentation

Act, but also on the ground that the land which has

come to the share of the petitioner by way of the

family arrangement is contiguous land to the land

owned by the petitioner, and therefore, the same are

required to be consolidated. The aforesaid survey

Nos.7/2 and 7/4 are contiguous to the land owned by

the petitioner i.e. survey No.7/3 has not been

controverted by the State by way of affidavit in

reply, and therefore, even without going into the

disputed question whether the land is irrigated land

or not the issue can be decided only on the ground

delay as well as the land which is sought to be

transferred in the name of the petitioner is

contiguous land.

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5.6 In view of the aforesaid clear proposition

of law as well as the Government resolution,

considering the facts of the case that in the instant

case also the proceedings under the Fragmentation Act

were initiated after a delay of 9 years coupled with

the fact that survey Nos.7/2 and 7/4 are contiguous

land to the land owned by the petitioner, the

impugned orders deserve to be quashed and set aside.

As far as the question of delay is concerned, though

the Special Secretary, Revenue Department (Disputes)

rejected the revision application preferred by the

petitioner on the ground of delay as well as merit

and hence when the State itself has initiated the

proceedings after a lapse of 8 years for which no

reason is coming forward on record coupled with the

fact that the petitioner has become the owner of

contiguous land for which the Government itself has

vide Government Resolution dated 10.6.2013 has made

certain clarifications in the form of relaxation,

the Special Secretary, Revenue Department (Disputes)

ought not have rejected the revision application

preferred by the petitioner on the ground of delay

without considering the totality of the fats.

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Therefore also the impugned orders are bad and

deserve to be quashed and set aside.

7 In view of the above discussion, this

petition succeeds and accordingly it is allowed and

order dated 17.7.2019 passed by the Special

Secretary, Revenue Department (Disputes) in Revision

Application No.MVV/CON/BNK/1/2019 and order dated

22.9.2009 passed by the Deputy Collector, Deesa in

Fragmentation Case No.105/2009 are hereby quashed and

set aside. Rule is made absolute. However, there

shall be no order as to costs.

Sd/-

(NIRZAR S. DESAI,J) P. SUBRAHMANYAM