Gujarat High Court
Tadviben Nayanbhai Widow Of Deceased ... vs The Collector on 1 December, 2023
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/10063/2006 JUDGMENT DATED: 01/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.10063 of 2006
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be NO
allowed 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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TADVIBEN NAYANBHAI WIDOW OF DECEASED NAYANBHAI BHAGABHAI
Versus
THE COLLECTOR & 2 others
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Appearance :
MR KR BRAHMBHATT for the Petitioner.
MS TEJAL RAJPUT, AGP for the Respondents.
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 01/12/2023
ORAL JUDGMENT
1. By way of this petition, the petitioner has prayed for
quashing and setting aside the order dated 6.2.2006 passed in
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Revision Application No.13 of 2001 (though in the prayer clause it
is written as Appeal No.13 of 2001) by the Special Secretary,
Revenue Department (Appeals) as well as order dated 9.4.2001
passed by the Collector, Amreli vesting the land bearing Revenue
Survey No.145/1/Paiki admeasuring 0 - 22 Gunthas of village
Chikhli, Taluka Savarkundla, Dist. Amreli.
2. When the matter was called out, learned advocate Mr.
K. R. Brahmbhatt appearing for the petitioner was absent.
However, considering the fact that the petition is of the year 2006,
the matter was taken up even in his absence with the assistance of
Ms. Tejal Rajput, learned AGP appearing for the respondents.
3. As can be seen from the petition, it is the case of the
petitioner that the petitioner's husband was granted lease on
9.3.1956 in respect of the subject land for a period of 30 years for
tree plantation. Since then, the petitioner is in possession of the
said land. On 1.3.2001, for breach of condition, a show-cause
notice was served upon the petitioner and the proceedings were
initiated by the Collector, Amreli for breach of conditions.
4. By order dated 9.4.2001, the Collector believed that
there is a breach of condition and passed an order vesting the
subject land into the State Government. The petitioner preferred
Revision Application No.13 of 2001 before the Special Secretary,
Revenue Department (Appeals) against the aforesaid order dated
9.4.2001. However, vide order dated 6.2.2006, even the revision
application was also rejected.
5. That is how, being aggrieved by the aforesaid orders,
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the petition is preferred.
6. The coordinate Bench vide order dated 21.2.2007,
passed the following order :-
"Mr. Brahmbhatt, learned counsel for the petitioner
states that the petitioner is still in possession of the
land in question. Rule returnable on 21st March, 2007.
By interim order, status quo as existing over the land
in question qua the possession shall be maintained.
However, the respondent authority shall verify as to :
1) Whether the petitioner is in a position to
supervise the cultivation.
2) Whether the possession is transferred or is still
with the petitioner.
If the report is otherwise, it would also be open to the
respondent authority to move this Court for vacating of
the interim relief."
7. Pursuant to the aforesaid order, the Panch Rojkam was
carried out on 7.12.2021 i.e. almost after 14 years. In the
meantime, the petitioner had died and his legal heirs, namely,
Balubhai Naranbhai Pancholi, Dineshbhai Naranbhai Pancholi and
Pradipbhai Naranbhai Pancholi were found to be in possession of
the land in question and the trees were looked after by son-in-law
of the petitioner, namely, Balubhai Galabhai Vaghamshi. Affidavit
dated 9.12.2021 was filed by Mamlatdar, Savarkundla indicating
the aforesaid facts and along with the said affidavit, copy of Panch
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Rojkam carried on 7.12.2021 and death certificate of the petitioner
Kuverben Narayanbhai Pancholi was also annexed. In the said
affidavit, in paragraphs 9 and 10, following averments are made :-
"9. It is further respectfully to submit that the
petitioner, Tadviben who represented before
respondent authorities by the name Kadviben, who has
been demised on date 10.09.2018 at Mumbai. The
name of the petitioner is notified as Kuverben in the
said death certificate. A copy of death certificate of
the petitioner is herewith enclosed as Annexure R1 to
this affidavit. Therefore, the present petition should be
dismissed in limine.
10. It is further respectfully to submit that the
answering respondent has carried Panchnama of the
land in question to answer the questions raised by the
Hon'ble High Court vide order dated 21.02.2007. It is
pertinent to point out the fact that the land in question
has been supervised by the son-in-law cum Power of
Attorney of the petitioner namely Balubhai Galabhai
Vaghamshi and hence it should be believed that the
possession of the land in question has been
transferred. A copy of the Panchnama drawn by
Revenue Talati on date 07.12.2021 is herewith
enclosed as Annexure-R2 to this affidavit."
8. The aforesaid averments would indicate that even
despite death of the original petitioner, till date, the land has
remained in possession of her legal heirs and they are cultivating
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the land. The affidavit does not say anything adverse about the fact
that the land is not being cultivated or is being used for any other
purpose. The Panch rojkam also indicates that on the subject land,
at present, there is one tree of Rayan, 17 trees of Neem, 5 trees of
Chickoo, 10 trees of Sandesara, 5 trees of Kaner, 15 trees of Aaval
and 1 tree of Ambli, total 54 trees are standing on the said small
piece of land which also would indicate that the land is being used
for the very purpose for which the same was granted on lease in
the year 1956.
9. Considering the aforesaid fact as well as the fact that
though the land was given on lease in the year 1956 and for all
these years, the same has remained in possession of its original
allottees and her legal heirs as well as coupled with the fact that
there are trees standing on the land in question, prima facie, it
seems that the authorities were not justified in alleging breach of
condition and vesting the same in question in the Government.
Even on site inspection, pursuant to the order of this Court, no case
for breach of condition is proved or could be made out by the State
authorities itself who carried out the spot inspection and Panch
Rojkam.
10. Hence, the present petition stands allowed. The
impugned order dated 6.2.2006 passed in Revision Application
No.13 of 2001 by the Special Secretary, Revenue Department
(Appeals) as well as order dated 9.4.2001 passed by the Collector,
Amreli are quashed and set aside. However, the respondent
authorities are at liberty to carry out inspection of the land from
time to time at an interval of every three years and if at any point
of time, the authorities find that any person other than the legal
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heirs of the original allottees are in possession of the land in
question or any breach of condition is noticed, the authority may
initiate fresh proceedings. Rule is made absolute. No order as to
costs.
(NIRZAR S. DESAI,J)
SAVARIYA
