Gujarat High Court
Dahiben Govabhai Meria vs State Of Gujarat on 12 January, 2023
Bench: A.S. Supehia
C/SCA/11192/2018 JUDGMENT DATED: 12/01/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11192 of 2018
FOR APPROVAL AND SIGNATURE: sd/-
HONOURABLE MR. JUSTICE A.S. SUPEHIA
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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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DAHIBEN GOVABHAI MERIA & 4 other(s)
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR DIGANT M POPAT(5385) for the Petitioner(s) No. 1,2,3,4,5
MR MANOJ N POPAT(671) for the Petitioner(s) No. 1,2,3,4,5
MR RONAK B. RAVAL, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 12/01/2023
ORAL JUDGMENT
1. RULE. Learned AGP waives service of notice of Rule on
behalf of the concerned respondents.
2. With the consent of the learned advocates appearing for
the respective parties since a short issue is involved in the
present writ petition, the same is heard and decided finally
today.
C/SCA/11192/2018 JUDGMENT DATED: 12/01/2023
3. By way of the present petition, the petitioners have
assailed the order dated 03.11.2017 passed by the Special
Secretary, Revenue Department (Appeals) (for short, 'SSRD') in
Revision Application No.MVV/JAMAN/RJT/7 of 2016 as well as
the order dated 03.02.2016 passed by the District Collector,
Rajkot in Land/Revision/211/Case No.4/12-13 vesting the land
admeasuring 8,094 sq. mts. of Survey No.134 paiki of village
Vejagam, Tal. & Dist. Rajkot into the State Government.
4. The facts giving rise to the present writ petition can be
summarized as under:-
4.1 The new tenure agricultural land bearing Survey No.134
of Village Vejagam, Tal. and Dist. Rajkot admeasuring 8,074
sq.mtrs. was allotted by the Deputy Collector, Rajkot to
Govabhai Pithabhai vide order dated 01.07/08.1974, who
passed away on 14.11.2010 leaving behind his legal heirs (i.e.
the petitioners herein) and their names were mutated in the
revenue record vide Entry No.1417 dated 05.12.2019.
4.2 The petitioners made an application dated 17.02.2011 for
conversion of the new tenure land to old tenure land pursuant
to the Circular dated 04.07.2008. Thereafter, Talati, Madhapar
prepared a panch rojkam on 01.04.2011, wherein it is stated
that the petitioners are in possession of the land after death of
Govabhai Pithabhai and their names were mutated as per
Entry No.1417. Thereafter, Circle Officer, Rajkot wrote a letter
to Mamlatdar, Rajkot Taluka, giving no objection for converting
the new tenure land to old tenure land.
C/SCA/11192/2018 JUDGMENT DATED: 12/01/2023
4.3 Thereafter, respondent No.3-Deputy Collector issued a
show-cause notice dated 25.05.2012 calling upon the
petitioners as to why the order should not be passed under
Section 79 (A) and 202 of the Gujarat Land Revenue Code,
1879 and Rules 100 and 101 of the Land Revenue Rules in
Case No.PRAK/Appeal/LRC-79/Sharatbhang/Case No.19/2012
as the land granted to the father of the petitioner Nos.2 to 5
and husband of petitioner No.1 was not cultivated for the years
1995-96, 1996-97, 1998 -99, 1999-2000 and 2001-02.
4.4 Thereafter, petitioner No.4 filed his reply on 11.06.2012
before the respondent No.3-Deputy Collector contending that
there was shortfall of rain in the year 1995-96 and hence, the
crop had failed and in the years 1996-97 to 2001-02, the land
was cultivated but due to heavy rain, the crop was failed. It
was also contended that due to lack of legal knowledge, the
petitioners forgot to mention the details of crop in the Village
Form No.7/12.
4.5 After hearing the petitioners, the respondent No.3-
Deputy Collector withdrew the notice dated 25.05.2012 vide an
order dated 08.04.2013 and directed to cultivate the land on
regular basis and not to waste the land.
4.6 Thereafter, the respondent No.2-District Collector, Rajkot
issued a show-cause notice dated 30.11.2013 / 02.12.2013 to
the petitioners asking as to why the action should not be taken
for breach of condition of the allotment order of 1974 and the
possession of the land should not be taken back as by taking
the order dated 08.04.2013 passed by the respondent No.3-
C/SCA/11192/2018 JUDGMENT DATED: 12/01/2023
Deputy Collector into revision under Section 211 of the Gujarat
Land Revenue Code, 1879.
4.7 The petitioners gave their detailed reply to the notice
dated 30.11.2013 / 02.12.2013 issued by the respondent No.2-
District Collector, pointing out that the said land was cultivated
in the year 1995-96 to 2000-01 and it was never put as waste
land.
4.8 The respondent No.2-District Collector passed an order
on 03.02.2016 vesting the land admeasuring 8,094 sq. mtrs. of
Survey No.134 paiki of Village Vejagam, Tal. and Dist. Rajkot
into the State Government and accordingly, mutated an entry
in the revenue record and set aside the order dated
08.04.2013 passed by the respondent No.3-Deputy Collector
and also stated that if the petitioners want to re-grant the land,
then they may apply for the same within a period 90 days from
the date of the order.
4.9 Being aggrieved by the said order dated 03.02.2016 of
the respondent No.2, the petitioners preferred Revision
Application No.MVV/JAMAN/RJT/7 of 2016 before the
respondent No.4-SSRD.
4.10 By the impugned order dated 03.11.2017 passed by the
respondent No.4-SSRD, the revision application preferred by
the petitioners came to be rejected.
SUBMISSIONS
5. Learned advocate Mr.Popat, has submitted that the SSRD
has failed to appreciate that there is no other source of
C/SCA/11192/2018 JUDGMENT DATED: 12/01/2023
irrigation available for the land in question, except the
monsoon and the petitioners have to depend on the vagaries
of the monsoon, which does not follow any predictable pattern
and is beyond the control of everybody, even in the present
age of advanced technology. It is submitted that if there is no
other means of irrigations for the land except the monsoon, it
follows that during the years when there is a poor monsoon,
there would be no source of irrigation and it would not be
possible to cultivate the land. It is submitted that poor
monsoon, leading to failure of cultivation, would lead to
financial crisis for the petitioners, who are dependents only on
the land in question for their livelihood and to maintain their
family.
5.1 Learned advocate Mr.Popat, has further submitted that
the SSRD has failed to appreciate that the action of issuing the
show-cause notice after a period of 10 years is belated and
suffers from vice of delay and latches and amounts to waiver
and the time is deemed to have been granted. Therefore, the
action of the respondent No.2-District Collector for taking into
revision under Section 211 of the Gujarat Land Revenue Code
suffers from delay, latches and time barred.
5.2 Learned advocate Mr.Popat, has further submitted that
the SSRD has failed to appreciate that merely because the
petitioners failed to make an entry of the crop in the village
record, it does not mean that the land is lying without use and
not cultivated and it is not in the interest of the State
Government.
C/SCA/11192/2018 JUDGMENT DATED: 12/01/2023
5.3 In support of his submissions, learned advocate Mr.Popat,
appearing for the petitioners has placed reliance on the
judgment of this Court in the case of Koli Popatbhai Talsibhai
vs. Secretary - Appeal, 2017 (2) G.L.H. 264.
6. Vehemently opposing the writ petition, learned Assistant
Government Pleader Mr.Raval, appearing for the respondent
authorities has submitted that the impugned order may not be
required any interference since the District Collector has
precisely passed the order by observing that the land in
question which was allotted to the father of the petitioners,
remained fallow for the years 1995-96, 1996-97, 1998-99,
1999-2000 and 2001-02.
6.1 Learned Assistant Government Pleader has further
submitted that there was breach of conditions being condition
Nos.6, 7 and 13 of the order dated 01.07.1974, by which, the
land was allotted to the father of the petitioners for cultivation
(santhani) and when it was noticed that the land was not
cultivated for the aforesaid years, a show-cause notice dated
28.05.2012 was issued to the petitioners for breach of
conditions of the said order.
6.2 Learned Assistant Government Pleader has also referred
to the order passed by the District Collector and has submitted
that the District Collector has precisely exercised the suo motu
power of revision and set aside the order passed by the Deputy
Collector in favour of the petitioners after recording the fact
that the land was not cultivated for the aforesaid years i.e.
more than three years. It is submitted by him that the
C/SCA/11192/2018 JUDGMENT DATED: 12/01/2023
petitioners are bound by the conditions of the order allotting
the land to them and any breach thereof would invite the
cancellation of such allotment, hence the impugned order may
not be interfered with.
CONCLUSION:
7. The facts which are established from record and
submissions are that the show-cause notice dated 26.05.2012
was issued to the petitioners calling upon them to explain
breach of conditions of the order dated 01.07.1974, by which,
the father of the petitioners was allotted the land for
cultivation. A perusal of the show cause notice reveals that it is
alleged that the petitioners have breached the condition Nos.1,
6 and 7 of the said order by not cultivating the land for the
years 1995-96, 1996-97, 1998-99, 1999-2000 and 2001-02.
After the aforesaid notice was received by the petitioners, the
petitioners approached the Deputy Collector and pointed out
all the evidence in support of their case. The Deputy Collector,
after examining the entire record as well as the evidence has
ultimately found that for the years 1995-96 as well 1996-97 for
one year, there was deficit and for the years from 1998-99 to
2000-01, and hence, it was opined that in both the aforesaid
periods, it was not found that the petitioners have not
intentionally cultivated the land for three years and the land
has remained fallow for three years. The Rojkam was also
called for the Deputy Collector from the concerned Talati and it
was found that for every years, the land was cultivated.
C/SCA/11192/2018 JUDGMENT DATED: 12/01/2023
8. It is pertinent to note that by the show-cause notice
issued in the year 2012, the petitioners are called upon to
prove their case with regard to the non-cultivation of the land
for the aforesaid period, the last year being 2001-02, thus after
a period of 10 years, such show-cause notice has been issued
to the petitioners. The Collector, while exercising the powers of
suo motu review has set aside the observations made by the
Deputy Collector and held to the contrary that the land has
remained fallow for more than three years. It is observed that
the petitioners had not cultivated the land for the period from
1995-96 to 2000-01.
9. The order of the District Collector does not reflect the
examination of the record, which has been produced by the
petitioners in their favour. It also does not reflect that the
Dsitrict Collector has examined the conditions prevailing for
those years, whether favourable conditions prevailed at that
relevant time for cultivating the crops or not.
10. At this stage, it would be apposite to refer the
observations made by this Court in an analogous situation in
the case of Koli Papatbhai Talsibhai (supra), the
Coordinate Bench has observed thus : -
"15. Having heard learned counsel for the respective
parties and upon according thoughtful consideration to
the rival submissions and the material on record, it
emerges that the land in question, which was
government waste land, was granted to the father of the
petitioner on 18.07.1975, for the express purpose of
cultivation. The said grant is in consonance with the
beneficial policy of the State Government in
granting parcels of Government waste land to
poor, landless persons, who have no means of livelihood.
As such, the policy that is the cornerstone of the grant
C/SCA/11192/2018 JUDGMENT DATED: 12/01/2023
of the land in question to the father of
the petitioner is a benevolent one. No
doubt, certain conditions are attached to the
grant, which are enumerated in the order of
allotment. Condition No.7 of the order of grant is to
the effect that the land in question would be liable to
be resumed by the State Government if found to
be uncultivated without any reason. This condition
is also in consonance with the purpose for which
the land is granted, namely for cultivation,
which would provide a sustainable means of livelihood
for the person and family in whose favour it
is granted. However, it cannot be lost sight of, that
this condition would only operate if it is found that
the land has remained uncultivated "without any reason".
These are the key words in this condition which
require that the authority concerned which
alleges the breach, is bound to satisfy itself by a
proper inquiry and verification that there
was, indeed, no reason for the land being
left uncultivated. The State Government in its wisdom
and experience, is aware of, and alive to, the
possibility that farmers, especially in the
arid region of Saurashtra where the land is
situated, can face certain difficulties in
cultivation and there can be a valid reason for the land
remaining fallow. Only when it is found that the land
has remained uncultivated "for no reason", as stipulated
in Condition No.7, can the competent authority, in
this case the Deputy Collector, direct the vesting
of the land in the State Government and not
otherwise. This stipulation is clear from a
perusal of Condition No.7 of the allotment
order. There can be no automatic vesting of the land due
to its remaining fallow at any given period without
ascertaining the reason for this. To direct
so would defeat the very purpose of the
beneficial policy of the State Government.
16. It is asserted by learned counsel for
the petitioner and not denied by the
respondents, that there is no other source of
irrigation available for the land in question
except the monsoon. The petitioner has to
depend on the vagaries of the monsoon which
does not follow any predictable pattern and is beyond
the control of everybody, even in the present age of
advanced technology. If there is no other
means of irrigation for the land except the
monsoon, it follows that during the years when there is
a poor monsoon there would be no source
C/SCA/11192/2018 JUDGMENT DATED: 12/01/2023
of irrigation and it would not be possible to cultivate
the land. Poor monsoon, leading to failure
of cultivation, would lead to financial crisis
for the petitioner who is dependent only on
the land in question for his livelihood and to
maintain his family of twelve members. This
reason advanced by the petitioner in his reply to
the Show Cause Notice, in the view of the Court, is a
valid one which ought to have been examined, verified
and inquired into by the Deputy Collector before passing
the order of vesting the land in the State Government.
However, this was
not done and only on the basis of the revenue record
produced by the Talati cum Mantri which showed
that the land in question remained fallow
for the two relevant periods of time, has
the Deputy Collector passed the impugned
order, that has drastic consequences for the
petitioner.
17. It is an admitted position that ever since its
grant in the year 1975, the land was being regularly
cultivated by the petitioner's father and the
petitioner, except for the two periods
mentioned in the Show Cause Notice. It is
asserted by the petitioner and not denied by the
respondents that the land is still being cultivated as
the possession is with the petitioner. This aspect is
supported by the Panchnama that was directed to be drawn
by the Court.
21. Considering the above judicial pronouncements and
as there has been no proper verification of the reason
for not cultivating the land as submitted by
the petitioner, this Court is firmly of the view that
the land in question could not have been forfeited to
the State Government as the concerned revenue
authorities have themselves not followed Condition
No.7 of the allotment order in its true spirit.
Forfeiture of land granted to a person such as
the petitioner for the purpose of cultivation,
which forms the only source of livelihood for his family
of twelve members, is a very harsh step, considering
the fact that the land has been regularly
cultivated from 1975 onwards, except for the
two relevant periods, till date. Such a
drastic power ought not to have been exercised without
properly examining and verifying whether the
land remained uncultivated for reasons beyond the
control of the petitioner or not. Merely relying on
revenue entries is not the right method to
C/SCA/11192/2018 JUDGMENT DATED: 12/01/2023
do so. Revenue entries would never record
the reason for non-cultivation of the land but
only the factum of noncultivation. It is the reason for
noncultivation that is to be examined and whether it is
of a nature over which the petitioner had no power, such
as the failure of the monsoon. The impugned
orders of the revenue authorities, therefore,
cannot be sustained on the above grounds."
11. Thus, it is held by this Court that a drastic power of
vesting the land on the ground that it has remained fallow for a
limited time ought not to have been exercised without properly
examining and verifying the aspect as to whether the
land remained uncultivated for the reason beyond the control
of the petitioners or not. It is also held that merely relying on
the revenue entries is not the right method to do so
and the revenue entries would never record the reason
for non-cultivation of the land but only the factum of non-
cultivation. It is the reason for noncultivation that is to be
examined and whether it is of a nature over which the
petitioners had no power, such as lack of irrigation facility, lack
of monsoon. The livelihood of the petitioners depend on the
cultivation of the aforesaid land and forfeiture of such land
would be a very harsh step.
12. In the present case, as narrated hereinabove, the
petitioners have been called upon to explain the non-
cultivation of the land for a period as mentioned hereinabove,
after a lapse of 10 years. Such power has to be exercised
within a reasonable time so that the farmers can give valid
reasons or cause which existed at the relevant time when the
land remained uncultivated. The District Collector has
disbelieved the Rojkam and the opinion of the respondent
C/SCA/11192/2018 JUDGMENT DATED: 12/01/2023
No.3-Deputy Collector for the reason that the petitioners had
kept the land fallow for the period from 1995-96, 2001-02. It is
also not pointed out to this Court as to whether after the
aforesaid period, the land has not been cultivated by the
petitioners. The factor which was required to be examined by
the authorities is whether the petitioners had deliberately, for
no reason kept the land fallow despite a favourable monsoon
or the availability of water for irrigating the land either through
an irrigation facility. In absence of such finding, the land should
not have been ordered to be forfeited.
13. Under the circumstances and in wake of the aforesaid
facts, the impugned orders are hereby quashed and set aside.
The respondents are directed to re-grant or allot the land to
the petitioners in case the same is vested in the State
Government within a period of two months from the date of
receipt of writ of the order of this Court.
14. The writ petition stands allowed. Rule is made absolute to
the aforesaid extent.
Sd/-
(A. S. SUPEHIA, J)
MB/ 67
