Gujarat High Court
Thakorbhai Bhikhabhai Panchal vs State Government on 28 February, 2022
Bench: A.J.Desai
C/SCA/9389/2016 JUDGMENT DATED: 28/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9389 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.J.DESAI Sd/-
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1 Whether Reporters of Local Papers may be allowed to No
see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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THAKORBHAI BHIKHABHAI PANCHAL & 1 other(s)
Versus
STATE GOVERNMENT & 3 other(s)
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Appearance:
MR.D K.PUJ(3836) for the Petitioner(s) No. 1,2
MS SHRUTI PATHAK, ASSTT. GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
Date : 28/02/2022
ORAL JUDGMENT
[1.0] By way of present petition under Articles 226 and 227 of
the Constitution of India, petitioners have prayed as under:
"A. That this Hon'ble Court may kindly be pleased to issue a
writ of mandamus or any other appropriate writ or order and/or
directions in the nature of mandamus quashing and setting aside
the impugned order dated 18.02.2016 passed by the respondent
C/SCA/9389/2016 JUDGMENT DATED: 28/02/2022
no.1 in Revision Application No.19/2008 and also the order
passed by the respondent no.2-District Collector, Surat in Appeal
No.3/2006 on 02.09.2008 as well as the order passed by the
respondent no.3 - Dy. Collector on 27.07.2006, holding that all
the three impugned orders are absolutely illegal, erroneous,
unjust, unreasonable, unlawful, contrary to the provisions of the
statute as well as against the settled principles of law, equity and
justice and also contrary to the government resolution dated
08.08.2001, in the interest of justice;
B. That this Hon'ble Court may kindly be pleased to issue a
writ of mandamus or any other appropriate writ or order and/or
directions in the nature of mandamus directing the respondents
to regularize the land in question by converting the same from
New Tenure land into Old Tenure land by accepting the requisite
amount of premium as indicated in the Government Resolution
dated 08.08.2001, in the interest of justice;
C. During the pendency and final disposal of the present
petition, this Hon'ble Court may be pleased to grant stay of
operation, execution and implementation of the impugned order
dated 18.02.2016 passed by the respondent no.1 in Revision
Application No.19/2008 and also the order passed by the
respondent no.2-District Collector, Surat in Appeal No.3/2006 on
02.09.2008 as well as the order passed by the respondent no.3 -
Dy. Collector on 27.07.2006, in the interest of justice;"
[2.0] The matter was admitted by the coordinate Bench by an
oral order dated 24.04.2018 and respondents - State Authorities
were restrained from taking any coercive steps against the
petitioners which is continued till today.
C/SCA/9389/2016 JUDGMENT DATED: 28/02/2022
[3.0] The short facts arising from the record of the case are as
follows:
[3.1] That, a piece of land admeasuring about 101 Sq. Mtr.
situated at village Ubhel, Taluka Kamrej, District Surat
(hereinafter referred to as "land in question") was allotted to one
Mr. Chhaganlal Durlabhbhai on 30 years' lease by an order dated
10.03.1954 on certain terms and conditions. The land in question
was allotted to said Chhaganlal Durlabhbhai for constructing a
residential house and accordingly, the same was constructed.
That, on 01.09.1963, said Chhaganlal Durlabhbhai passed away
and therefore, name of his wife Kankuben Chhaganlal was
mutated in village Form No.2 of the revenue record, who passed
away on 29.12.1996. Subsequent to the death of said Kankuben
Chhaganlal, name of Kikiben, who had married to Bhikhabhai
Hirabhai was mutated in the revenue record. Said Kikiben was
having seven sons and one daughter. Though there was no name
mutated subsequent to the death of Kikiben of any of her
children, one sale deed was executed by one of her sons viz.
Navnitbhai in favour of the present petitioner No.1 Thakorbhai
Bhikhabhai Panchal. Having come to know about such transfer,
the proceedings were initiated by the Deputy Collector, Surat for
breach of condition i.e. transferring the property in question
without the prior permission.
[3.2] That, by an order dated 27.07.2006, the Deputy Collector
directed to vest the land in question into the State Government
and ordered that name of State Government be mutated in the
revenue record. The said decision dated 27.07.2006 was
challenged by the petitioners by way of filing Appeal No.3/2006
before the District Collector, Surat. The said appeal came to be
C/SCA/9389/2016 JUDGMENT DATED: 28/02/2022
dismissed by the District Collector, Surat by an order dated
02.09.2008.
[3.3] That, both the orders dated 27.07.2006 and 02.09.2008
were challenged by the petitioners by way of filing Revision
Application No.19/2008 before the Special Secretary (Appeals),
Revenue Department. By an order dated 18.02.2016, the Special
Secretary (Appeals), Revenue Department i.e. the appellate
Authority confirmed both the orders dated 27.07.2006 and
02.09.2008.
Hence, the present petition.
[4.0] No affidavit in reply has been filed on behalf of the
respondent - State Authorities, however the learned AGP Ms.
Shruti Pathak has relied upon the orders impugned in the present
petition.
[5.0] Learned advocate Mr. D.K. Puj appearing on behalf of the
petitioners would submit that the land in question admeasuring
only 101 Sq. Mtr. was allotted to grandfather of the petitioners
for constructing a residential house which was accordingly
constructed. He would submit that the residential house which
was constructed upon the land in question remained in
possession of the family of the petitioners even after 1984 i.e.
even after completion of the period of lease which was allotted
in the year 1954. He would submit no action was taken by any
authority on not renewing the lease deed even after 1984. He
would submit that none of the family members had raised any
dispute as regards the transfer of the constructed property
alongwith the land in question in the name of the petitioners and
accordingly, sale deed was executed by one of the legal heirs of
C/SCA/9389/2016 JUDGMENT DATED: 28/02/2022
Kikiben i.e. real brother of the present petitioner No.2. He,
therefore, would submit that since the arrangement is amongst
the family members of deceased Chhaganlal Durlabhbhai, it
cannot be said that there is breach of any condition. He would
however submit that there are several policies issued by the
State Government for regularizing such lands which were
allotted by the State Authorities on renewal basis. One of such
Government Resolution dated 08.08.2001 has been produced
alongwith the petition. By taking me through the Government
Resolution dated 08.08.2001, he would submit that the case of
the petitioners is covered under the said government resolution.
He would further submit that he is ready and willing to approach
the District Collector for regularization of the land in question
relying upon the said Government Resolution dated 08.08.2001
and/or any other policy/resolution which may be applicable to
the facts of the present case. He, therefore, would submit that
appropriate order may be passed.
[6.0] On the other hand, learned AGP Ms. Shruti Pathak
appearing for the respondent - State Authorities would submit
that it is undisputed fact that the land in question was allotted in
the year 1954 to grandfather of the petitioners on lease for a
period of 30 years. However, subsequent thereto, no application
for renewal has been filed and therefore, in absence of such
renewal, the possession of the petitioners over the property in
question is illegal and therefore, the authorities have committed
no error in passing the impugned orders. She, therefore, would
submit that the petition be dismissed.
[7.0] I have heard learned advocates appearing for the
respective parties.
C/SCA/9389/2016 JUDGMENT DATED: 28/02/2022
It is true that the land in question was allotted to the
deceased Chhaganlal Durlabhbhai i.e. predecessor of the
petitioners way back in the year 1954 for a period of 30 years.
However, till the year 2006, no proceedings were initiated for
taking back the possession of the property in question. Only
when some transaction took place between the real brothers
who had inherited the property in question from their ancestor,
proceedings have been initiated. Technically, it might be a breach
of condition since the prior permission of the Authority was not
taken for transfer of the property in question, however it is also
equally true that subsequent to the death of Kikiben, who
happened to be the mother of the petitioners, no names were
mutated in the revenue record.
[7.1] It is equally true that the land in question is admeasuring
101 Sq. Mtr. upon which a residential house has been constructed
by the legal heir of deceased Chhaganlal Durlabhbhai and
therefore, in my opinion, State Authorities can consider the case
of the petitioners for grant of land in question on permanent
basis and hence, I pass the following order.
1. The petitioners shall apply to the District Collector, Surat
for grant of land in question on permanent basis relying
upon the Government Resolution dated 08.08.2001 and/or
any other Resolution / Circular of the Government of
Gujarat within a period of four weeks hereinafter.
2. The District Collector, Surat after considering the case of
the petitioners as also various circulars / resolutions of the
Government of Gujarat shall pass appropriate order after
giving opportunity of hearing to the petitioners within a
period of four months thereafter.
C/SCA/9389/2016 JUDGMENT DATED: 28/02/2022
3. It is hereby made clear that the District Collector, Surat
shall decide the application that shall be made by the
petitioners without being influenced by the orders
impugned in the present petition as also the present
order. It is also expected that the District Collector, Surat
shall consider the case of the petitioners on sympathetic
ground and keeping in mind the peculiar facts of the case
on hand.
With above directions, present petition is disposed of. Rule
accordingly. Direct service is permitted.
Sd/-
(A.J. DESAI, J.)
Ajay
