Rasulbhai Kasambhai Mansuri vs State Of Gujarat
2022 Latest Caselaw 1567 Guj

     C/SCA/4847/2008                              JUDGMENT DATED: 10/02/2022




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 4847 of 2008


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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                RASULBHAI KASAMBHAI MANSURI & 11 other(s)
                                Versus
                      STATE OF GUJARAT & 3 other(s)
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Appearance:
MR YN RAVANI(718) for the Petitioner(s) No. 1,10,11,12,2,3,4,5,6,7,8,9
for the Respondent(s) No. 1
MS DHWANI TRIPATHI, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3,4
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                             Date : 10/02/2022

                            ORAL JUDGMENT

1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioners have challenged order No.MVV/HKP/GHN/40/06 dated 6.11.2007 passed by Revenue Secretary (Appeals), in Revision Application No.40 of 2006 as well as order dated 12.3.2006 passed by District Collector, Gandhinagar, in RTS Revision No.72-73 of 2005.

C/SCA/4847/2008 JUDGMENT DATED: 10/02/2022

2. Brief facts of the case, as emerging from record, are as under:-

2.1 The petitioners are owners of land bearing Survey No.22 amdeasuring Hectare-Are 1-08-25 sq.mtrs. of Mouje Village- Dholakuva, Taluka and District-Gandhinagar. That initially land admeasuring 4 Acres was acquired in Capital Scheme, Division- 2 (entry no.274) and then remaining lands were returned to the petitioners. The petitioners have purchased the said land from its erstwhile owners on 16.3.1999.

2.2 According to the revenue record i.e. Village Form 7/12 and Form No.6, from 1915-1916 to 2001-2002, it appears that the land in question belonged to one Hindu Undivided Family through Karta-Chuda Galu. Revenue record shows that without there being any substantial order declaring the land in question as "New Tenure" land by any authority, the same is shown as "New Tenure" land from 1959-1960 onwards. Subsequently, it was shown that the land in question is "subject to premium", when it is to be converted to Non- Agricutural use. It is alleged that from 1915-1916 till 1959-60, there was no endorsement of "New Tenure" land. It is contended that initially the Village-Dholakuva was falling under Dascroi Taluka and later on, it was included in Kalol Taluka and now it is part of Gandhinagar District. That original record of Village-Dholakuva is available at Dascroi and Kalol Taluka offices. That entry no.69 and 581 show that the land in question is "New Tenure" land. These entries do not refer the basis of mutation of endorsement "New Tenure". These two entries are not certified by the higher officer nor mutated after issuing notice to the original owners and it also does not show the date of entry.

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2.3 In 2004, the petitioners preferred an appeal under Section 197 of the Bombay Land Revenue Code, 1894 before Prant Officer, Gandhinagar, challenging said two entries, which came to be allowed by Prant Officer vide order dated 2.9.2004 holding that he land is "Old Tenure" land since beginning. Against this order, District Collector, Gandhinagar, initiated suo motu proceedings on 1.9.2005 and issued notice to the petitioners on the ground that the order of Deputy Collector is on incomplete investigation. On 12.3.2006, District Collector, Gandhinagar, set aside the order dated 2.9.2004 of Prant Officer mainly on the ground that there is likelihood of loss of premium amount to the Government. Said order was challenged before SSRD by the petitioners in 2006, ultimately, SSRD vide order dated 6.11.2007 rejected the revision filed by the petitioners.

3. Heard learned advocate Mr.Y.N.Ravani for the petitioners and learned AGP, Ms.Dhwani Tripathi for the respondent-State at length and perused the material placed on record.

4. Mr.Ravani, learned advocate for the petitioners has vehemently submitted that the point in question has been well settled upto the Honourable Apex Court in the case of one Bhikhaji Maganji Thakore. He submitted that in that case, this Court has set aside similar order, which order was confirmed by Division Bench of this Court in Letters Patent Appeal No.626 of 1997. Said decision was also carried in appeal before the Apex Court, which came to be rejected by Honourable Apex Court and, therefore, the issue is already settled. He has submitted that in view of this, present petition is liable to be allowed.

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4.1 In addition to aforesaid submission, he has submitted that without any substantial order, endorsement as to "New Tenure" has been made in the revenue record. He has submitted that Government Resolution has not been followed by the authority, which specifically provides that as and when status of the land is to be mentioned then there should be specific order thereof with appropriate evidence. He has also submitted that, in the present matter, without any order or source the entry regarding "New Tenure" has been made and that too subject to payment of premium in case of conversion of land to non-agricultural use. He has submitted that, in the revenue record, endorsement of "New Tenure" has been shown for the first time in the year 1958-59 and in the said entry there is no averment or endorsement as to on what basis this entry is made. He has also submitted that no order has been referred in Village Form No.6. He has submitted that suo motu revision by the Collector is legally not tenable. He would submit that the authority cannot go beyond the scope of notice. He has also submitted that in the impugned order of the Collector, there is no mention as to how investigation was incomplete, which was the base of the order of Deputy Collector. According to him, order of learned Collector is non- speaking one and so also that of learned SSRD. He has submitted that the ratio laid down in the order passed by Division Bench in Letters Patent Appeal No.2626 of 1997, which was on the similar facts, of course relating to other land, is squarely applicable to the facts of the present case, therefore, this petition may be allowed.

5. Per contra, learned AGP Ms.Dhwani Tripathi for the respondent-State has submitted that the order of learned

C/SCA/4847/2008 JUDGMENT DATED: 10/02/2022

Collector as well as learned SSRD is proper and it is based upon the documentary evidence on record. She has submitted that the revenue authority has not committed any error of facts and law in passing the impugned order. She has further submitted that the order was pertaining to Survey Nos.22 and

59. She submitted that order with regard to Survey No.59 is not challenged and, therefore, present petition may be rejected. She has also submitted that there is endorsement in the revenue record from the very beginning of the land being "New Tenure" land and there was endorsement to the effect that in case of conversion for non-agricultural purpose premium is required to be paid. She has submitted that considering this fact, present petition deserves to be dismissed.

6. In rejoinder, Mr.Ravani, learned advocate for the petitioners submitted that earlier Mamlatdar has passed an order in 1996 in view of Government Resolution. He has also submitted that the authority has not even followed this Government Resolution in respect of showing the status of the land in question. He has submitted that the impugned orders are devoid of merits and not sustainable in the eyes of law, therefore, present petition may be allowed by setting aside such orders.

7. Having considered the submissions made by both the sides and considering the revenue record, it appears that Survey No.22 was standing in the name of one Chuda Galuji from 1929 onwards in the Village Form No.7-12 produced at page 59, however, it does not mention the nature of the land as to whether it is "old tenure" or "new tenure" land. From the

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abstract of Form 7-A and 12 from the year 1939 to 1950, the land in question is shown in the name of Chuda Galuji, wherein also there is no mention as to "New Tenure" land. Even Form 7/12 abstract for the subsequent period does not contain such endorsement in 1958. It appears from abstracts of Form 7/12 for the year 1958-59 onwards, there is hand-written endorsement of "New Tenure". At the same time, in the abstract of Form 7/12 issued by Deputy Mamlatdar, E-Dhara, Gandhinagar, pertaining to Survey No.22, it is shown as "Old Tenure" land, with an endorsement that it is only for agricultural purpose and, for non-agricultural purpose, premium is payable.

8. Against this, on perusal of Hak Patrak (Village Form No.6), it appears that in entry no.69 and 581, against the name of Dhulaji Bavaji relating to Survey No.22 and 144, words "New Tenure" have been added. It also reveals from Village Form No.6 that certain portion of land of Survey Nos.22, 54, 58 and 59 were acquired for the purpose of Capital Gandhinagar in the year 1966. At this juncture, it is pertinent to note that Government of Gujarat in Revenue Department had issued Resolution dated 16.3.1982 regarding the action to be taken in relation to conversion of land from "New Tenure" to "Old Tenure"and various proceedings thereof. In para 5/2 thereof, it has been specifically mentioned that if there is not direct or indirect evidence or other ancillary evidence in regard to the fact that the land is "New Tenure" land then in that case only on the basis of the endorsement in the Village Form No.7/12, no proceedings for breach of condition could be undertaken but only new 'Kabulat' needs to be obtained. Further in para 6/9, there is a provision made that in case anyone takes

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objection regarding status of the land and submits that entry on record has been wrongly made, after giving opportunity of being heard, necessary entry to be made in Village Form No.6 and 7/12 as to whether the land is non-transferrable or not.

9. Further, the Government has also issued Resolution dated 11.3.1996 for conversion of "New Tenure" land to "Old Tenure" land. According to this Resolution, in case of conversion from "New Tenure" to "Old Tenure", after recovery of premium, endorsement of "New Tenure" to be removed and entry to be made "subject to payment of premium for non- agricultural purpose". On the same line, there is a resolution of 20.12.1996.

10. It is pertinent to note that stand of the respondents is that Mamlatdar, Gandhinagar, has passed an order dated 26.9.1996 and granted permission for change of purpose for agricultural use only with respect to Survey No.22 and it has been accepted by the original land owner and, therefore, there was conversion of land from "New Tenure" to "Old Tenure" for that purpose only. It is also the stand that in case of non- agricultural use, the parties are required to pay premium.

11. Now, considering the material placed on record, it clearly transpires that for the first time, in the year 1958-59, the words "New Tenure" have been mentioned in Village Form No.7/12. On perusal of the entire revenue record from the very beginning, it appears that there is no mention as to on what basis the term "New Tenure" has been added or posted in the revenue record. At this juncture, it is pertinent to note that learned Collector has observed in the order that the petitioner

C/SCA/4847/2008 JUDGMENT DATED: 10/02/2022

has accepted the fact that the land is subject to payment of premium in case of non-agricultural purpose and no objection was raised and, therefore, it is to be treated as "New Tenure" land. However, there is no evidence whatsoever as to whether before making such endorsement of "New Tenure" land in the revenue record, notice was ever issued to the original owner. Even there is no documentary evidence produced by the State in relation to said endorsement of the impugned entry.

12. It is worthwhile to note that in the decision of Division Bench of this Court in the case of State of Gujarat v. Bhikhaji Maganji Thakore in Letters Patent Appeal No.626 of 1997 and allied matters dated 24.8.2000, wherein in the similar facts, of course in relation to another land situated at Ghatlodiya, Taluka and City-Ahmedabad, this Court has clearly observed that in absence of any documentary evidence for making entry as to the land being "New Tenure", such entry cannot be sustained in the eyes of law.

13. In view of aforesaid facts and circumstances, it clearly appears that there is no iota of evidence as to on what basis the endorsement "New Tenure" was made in the revenue records. Therefore, the impugned decisions taken by the revenue authorities are not sustained in the eyes of law and the same deserve to be set aside.

14. In view of above, present petition is allowed. The impugned order No.MVV/HKP/GHN/40/06 dated 6.11.2007 passed by Revenue Secretary (Appeals), in Revision Application No.40 of 2006 as well as order dated 12.3.2006 passed by District Collector, Gandhinagar, in RTS Revision

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No.72-73 of 2005 are quashed and set aside. Rule is made absolute accordingly with no order as to costs.

Sd/-

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