Gujarat High Court
Keshubhai Virbhanbhai Vala vs The Special Secretary (Appeals) ... on 29 September, 2023
Bench: Aniruddha P. Mayee
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16587 of 2022
With
CIVIL APPLICATION (FOR MODIFICATION OF ORDER) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 16587 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 16588 of 2022
With
CIVIL APPLICATION (FOR MODIFICATION OF ORDER) NO. 1 of 2023
In R/SPECIAL CIVIL APPLICATION NO. 16588 of 2022
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
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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 ?
===============================================================
KESHUBHAI VIRBHANBHAI VALA
Versus
THE SPECIAL SECRETARY (APPEALS) REVENUE DEPARTMENT
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Appearance:
MR VIRAL R GURJAR(10556) for the Petitioner(s) No. 1
MR AMAR D MITHANI(484) for the Respondent(s) No. 5
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 29/09/2023
CAV JUDGMENT
1. Both the Special Civil Applications impugn the common order
dated 27.07.2022 passed by the Special Secretary (Appeals) in the
Application for Leave to Appeal and the Revision Application No.
MVV/JMN/Gir/15/2021, whereby the revision application preferred by
the respondent No.5 herein came to be allowed and the order dated
17.12.2020 passed by the District Collector, Gir Somnath in Land/3/
Appeal/2/2020 came to be quashed and set aside. Aggrieved, the
petitioner has preferred the present Special Civil Applications
praying for the following reliefs:-
"(A) YOUR LORDSHIPS may be pleased to issue a writ of
certiorari or a writ in the nature of mandamus or any other
appropriate writ, order or direction quashing and setting
aside common order dated 27.7.2022 passed by the
respondent no.1 in application for leave to appeal and
Revision Application No. MVV/JMN/Gir/15/2021 and further
be please to revive order dated 17.12.2020 passed by the
learned District Collector, Gir Somnath in order no. Land/3/
Appeal/2/2020 and all further consequential orders;
(B) During the pendency and final disposal of the present
petition, YOUR LORDSHIPS may be pleased to stay the
implementation, operation and execution of the common
order dated 27.7.2022 passed by the respondent no.1 in
application for leave to appeal and Revision Application
No.MVV/JMN/Gir/15/2021;
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(C) Any other and further relief that may deem fit by this
Hon'ble Court in the interest of justice;"
2. The brief facts leading to filing of the present petitions are as
under:-
2.1 That the land bearing survey Nos.633 and 637 of Village
Sarkhadi, Taluka Kodinar, District Gir Somnath came to be vested in
the State Government under the Gujarat Agricultural Land Ceiling
Act, 1960, pursuant to which, the mutation entry No.923 dated
16.12.1965 came to be mutated in favour of the Government. That,
thereafter, the father of the petitioner, being an agriculture
labourer, made an application and the land bearing survey No.637
admeasuring 11 Acres 19 gunthas as well as survey No.633
admeasuring 5 Acres 10 gunthas came to be allotted in Santhani to
the father of the petitioner against the payment of occupancy price.
Accordingly, the mutation entry in connection with the aforesaid
order came to be mutated in the revenue record being entry
No.1303 dated 15.12.1970. It is stated that the father of the
petitioner thereafter occupied the land in question and has been
cultivating the same all throughout and the revenue entries record
the crops and method of cultivation. It is the case of the petitioner
that though the land was allotted to the father of the petitioner,
however, due to the lapse on the part of the revenue authorities, the
name of his father did not reflect in the column of occupant in the
form 7/12 of the village. It is the further case of the petitioner that
though by the common order, the land came to be allotted to the
father of the petitioner and his uncle, only the name of his uncle
was reflected in all the relevant revenue record and that the father
of the petitioner faced difficulties because he was not able to get
any benefit of the policy of the State Government which was
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otherwise meant to be extended to the farmers/agriculturists as the
name of the father of the petitioner did not reflect in the column of
the occupant. The father of the petitioner, time and again,
requested for the benefit to be extended to him and also for
mutation of his name in the revenue record. The revenue authorities
did not do so and demanded the refund of the amount paid for
allotment of Santhani in the year 1969. It is further submitted that
unfortunately, the petitioner had lost the said payment receipt and
was not in possession of the same and hence, the mutation of the
petitioner's father name came to be refused to be entered in the
revenue record. It is the case of the petitioner that since he could
not find the original receipt of payment, he preferred an application
on 02.05.2017 addressing to the Mamlatdar, Kodinar to collect the
said amount once again along with penal interest. By order dated
06.05.2017, the Mamlatdar was pleased to reject such an
application. The Mamlatdar further held that since the occupancy
price was not paid at the relevant point of time, the order of
allotment stood automatically cancelled as it was a conditional order
upon payment. That, the petitioner once again preferred an
application on 02.02.2018 to the Mamlatdar, Kodinar, requesting
that the needful be done to regularize the land in his possession,
which came to be rejected. That thereafter, the petitioner preferred
an application on 07.08.2018 to the District Collector, Gir Somnath
and in the said application, it was stated that at the relevant point of
time, the occupancy price was paid by the father of the petitioner,
however, the petitioner is not in possession of it since it is not
traceable. Under such circumstances, the petitioner showed his
willingness to make the payment for the second time. As no action
was taken on the said application, the petitioner preferred Special
Civil Application No.18330 of 2018 challenging the order dated
06.05.2017 passed by the Mamlatdar, Kodinar rejecting the request
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of the petitioner. On 03.12.2018, the petitioner withdrew the writ
petition to initiate appropriate proceedings.
2.2 That thereafter, the petitioner preferred an appeal before the
Deputy Collector being RRT/Appeal/Case No.17/2019. That
thereafter, hearing the petitioner, the Deputy Collector, vide order
dated 08.03.2019, was pleased to reject the appeal of the petitioner
on the ground of delay and latches. Being aggrieved by the rejection
order passed by the Deputy Collector, the petitioner preferred the
revision application before the Collector, Gir Somnath which came to
be numbered as Land/3/Appeal/4/2019. In the said revision
application, the petitioner placed reliance on the government
resolution dated 19.02.2018, wherein the State Government had
issued a direction to the effect that in the cases where the land is
allotted in Santhani and the possession is not handed over, then in
such cases, the possession of the land shall be handed over within a
period of six months. That, the District Collector, after hearing the
petitioner, was pleased to partly allow the revision application and
was pleased to remand the matter back to the Deputy Collector for
adjudication afresh. That, pursuant to the order dated 24.10.2019
passed by the District Collector, the Deputy Collector was pleased to
register the case as Misc. Remand Case No.55 of 2019. That,
thereafter, the petitioner was called upon to place the relevant
documentary evidence and submissions. The Deputy Collector
sought an opinion from the Mamlatdar, Kodinar, during the
pendency of the proceedings in view of the material produced on
record by the petitioner. The Mamlatdar, vide communication dated
24.12.2019, was pleased to submit his opinion to the learned
Deputy Collector, stating that there is no documentary evidence in
support of the payment done towards the occupancy price. That,
there is no record of initiation of any proceedings for breach of the
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conditions of allotment and that, upon verification of the site, the
possession of the land in question seems to be with the petitioner.
That, by order dated 20.01.2020, the Deputy Collector, was pleased
to observe that since no occupancy price was deposited within the
stipulated time as per the allotment order in the year 1969, the
father of the petitioner was not eligible to get the benefit of the
government resolution dated 19.02.2018 and the same was not
applicable in the present case. Accordingly, the Deputy Collector
rejected the revision application of the petitioner and was pleased to
confirm the order dated 06.05.2017 passed by the Mamlatdar,
Kodinar.
2.3 That, being aggrieved by the order dated 20.01.2020 passed
by the Deputy Collector in the remand proceedings, the petitioner
preferred an appeal before the District Collector again. The District
Collector, after hearing the petitioner and considering the
submissions made on behalf of the petitioner, was pleased to hold
that the government resolution dated 19.02.2018 was applicable in
the case of the petitioner and the benefit of the same was required
to be extended. It was further held that the possession of the land in
question was with the petitioner and in view thereof, the District
Collector was pleased to direct the revenue authorities to collect the
occupancy price with penal interest and act as per the government
resolution dated 19.02.2018 to hand over the possession of the land
under the supervision of the Mamlatdar, Kodinar. The Collector was
pleased to quash and set aside the order dated 20.01.2020 passed
by the Deputy Collector as well as the order dated 06.05.2017
passed by the Mamlatdar vide his order dated 17.12.2020. That
thereafter, the petitioner was called upon to make the payment of
the occupancy price and the same also came to be deposited by the
petitioner after undertaking necessary procedure. The mutation
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entry with respect to the implementation of the order of the
Collector was effected vide entry No.6961 which came to be
certified on 17.04.2021. That pursuant thereto, the name of the
petitioner also came to be recorded in the revenue record i. e. form
7/12 in the column of occupant. That, the respondent No.5 herein
preferred the revision application before the Special Secretary
(Appeals), wherein by order dated 28.06.2021, notice came to be
issued to the petitioner. That, on the next date of hearing, the
Special Secretary (Appeals) was pleased to stay the order passed by
the Collector dated 17.12.2020. That, aggrieved by the order of stay
dated 08.07.2021 passed by the Secretary (Appeals), the petitioner
challenged the same before this Court by filing Special Civil
Application No.11744 of 2021. By order dated 26.04.2022, after
hearing the parties, this Court was pleased to dismiss the Special
Civil Application. Aggrieved, the petitioner preferred Letters Patent
Appeal No.768 of 2022 before the Division Bench. Vide order dated
28.06.2022, the learned Division Bench was pleased to dispose of
the Letters Patent Appeal, directing the Special Secretary (Appeals)
to consider and decide all the contentions raised by the parties on
its own merits without being influenced by the earlier orders passed
by the learned Single Judge in Special Civil Application No.11744 of
2021 as well as earlier orders passed by the Special Secretary
(Appeals). That thereafter, the Special Secretary (Appeals) was
pleased to hear the parties and vide order dated 27.07.2022, was
please to allow the revision application as well as civil application for
leave to appeal preferred by the respondent No.5 herein. Aggrieved,
the petitioner has filed the present Special Civil Applications.
3. Shri Percy Kavina, the learned senior counsel appearing for the
petitioner submits that the lis in the present dispute is between the
petitioner and the State authorities. It is submitted that by order
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dated 25.03.1969, the competent authority had allotted the land in
question to the father of the petitioner, which is not in dispute. The
father of the petitioner was also put in actual possession of the land
in question. That, the respondent No.5 herein cannot enter into such
a dispute and therefore, the application for leave to appeal preferred
by the respondent No.5 ought to have been dismissed by the
respondent No.1. He submits that the respondent No.5 would not be
"person aggrieved" as per the provisions of the Gujarat Agricultural
Lands Ceiling Act. In support of the said proposition, the learned
senior counsel places reliance on the judgments i. e. 1970 (2) SCC
484, AIR 1981 Gujarat 132, AIR 1986 Gujarat 81, 1995 (3) SCC 147,
2016 (2) SCC 779, 2021 (3) SCC 136.
3.1 He submits that the respondent No.5 has no locus in the
present case as the allotment is by way of Santhani to the father of
the petitioner and no legal rights of the respondent No.5 are
infringed. He further submits that as per Section 29 of the Gujarat
Agricultural Lands Ceiling Act, there is an order of priority for
allotment of the land by the revenue authorities and the respondent
No.5 does not figure in any such order of priority and in any case,
the respondent No.5 is not entitled to intervene in the present lis
between the petitioner and the revenue authorities. In support of
the said proposition, he relies upon the judgment of the Hon'ble
Supreme Court in case case of Razia Begum vs. Sahebzadi Anwar
Begum reported in AIR 1958 SC 886.
3.2 The learned senior counsel for the petitioner further submits
that the only aspect, which is considered was to the effect that
whether any occupancy price was paid by the father of the
petitioner. It is not in dispute that by order dated 25.03.1969, the
competent authority had allotted the land in question to the father
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of the petitioner. He submits that it is also not in dispute and further
has been duly proved that the petitioner was in possession of the
said land upon verification of the land at the site done by the circle
officer in presence of panchas and upon drawing of panchnama.
Therefore, the possession of the petitioner is supported by the
panch rojkam done by the circle officer. He submits that the father
of the petitioner and thereafter, the petitioner are in possession of
the said lands all throughout uninterruptedly from the date of the
allotment. The learned senior counsel further submits that the
record shows that two times, the application for allotment, which
was preferred by the Gujarat Maritime Board for allotment of the
land in question, came to be rejected by the District Collector and
further, the said orders of rejection have not been challenged by the
respondent No.5 or respondent No.6 - Gujarat Maritime Board who
have accepted the said rejection orders. It is, therefore, submitted
that in view of rejection of the application for grant of land of the
respondent Nos.5 and 6, they would have no locus for challenging
the impugned order passed by the District Collector as no rights
over the land in question have been created in favour of the
respondent Nos.5 and 6 herein. The learned senior counsel for the
petitioner further submits that the case of the respondent Nos.5 and
6 is also ill-founded as they are based on presumption that the land
in question is owned by the State Government. In the present case,
admittedly, the land was allotted to the father of the petitioner on
25.03.1969 by way of Santhani and that the petitioner herein was in
continuous occupation of the same till date. It is not the case where
the land in question was granted recently to the petitioner and that
the respondent Nos.5 and 6 were contenders for the said vacant
government land.
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3.3 The learned senior counsel for the petitioner refers to the
revenue entries in respect of the land in question. It is submitted
that after the allotment, the name of the petitioner's father came to
be entered in the revenue record and also came to be certified by
the competent authority. He further submits that the revenue
authorities were also recording crops as well as method of
cultivation in the village form-12 and the name of the petitioner was
reflected as cultivator since 1970. He further submits that the
learned Collector has rightly decided the issue in the present case.
He submits that though the allotment order was conditional and the
payment receipt could not be produced by the petitioner, the
revenue record would show that no proceedings for breach of the
condition for non-payment of occupancy price were initiated by the
revenue authorities in the present case. Therefore, the Collector has
rightly held that in view thereof, the occupancy price should be
deposited by the petitioner afresh along with the penalty as
prescribed. He submits that the Collector has acted in accordance
with the rules and the government circulars while extending such
benefit and passing such an order. He, therefore, submits that the
present Special Civil Applications be allowed and the order passed
by the Special Secretary (Appeals) be set aside.
4. Shri Mihir Joshi, the learned senior counsel appearing for the
respondent No.5 submits that the Special Secretary (Appeals) has
passed the impugned order dated 27.07.2022 after hearing the
parties at length, appreciating the evidence on record and the
revenue entries in respect of the subject land and has passed a well
reasoned order which does not suffer from any error apparent on the
face of the record or any jurisdictional error for issuance of writ of
certiorari or any other order. He submits that the Mamlatdar as well
as the Deputy Collector had held that the order dated 25.03.1969
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allotting the land in Santhani to the father of the petitioner was a
conditional order and that none of the conditions of the said order
was fulfilled by the father of the petitioner. The revenue record
shows that the father of the petitioner has not paid any revenue
assessment, occupancy charges, measurement fees and his name
was never reflected in the village form 7/12 as occupier and
cultivator of the subject land even though he was alive for 23 years
after the date of allotment. It is submitted that after the allotment,
no steps were taken at all by the father of the petitioner for taking
possession and cultivating the said land in his name. The learned
senior counsel further submits that the petitioner herein had
approached the revenue authorities after 49 years from the date of
the original allotment i. e. 25.03.1969. He submits that even after
allotment, the subject land all throughout remained vested in the
State Government in absence of any procedure being followed by
the father of the petitioner after the said allotment. The petitioner
has not produced any receipt of payment of revenue assessment or
any evidence of cultivation for so many years. He submits that the
record also reveals that the petitioner himself has applied for re-
grant of the land. He submits that the order of the Collector is based
upon the panch rojkam holding that the land is in possession of the
petitioner. He submits that the said rojkam is without any basis and
it does not inspire confidence and cannot be relied upon since there
were other two rojkam dated 30.09.2010 and 09.08.2016 conducted
by the revenue authorities, which are on record and do not refer to
the possession of the petitioner, but reflect the possession of one
Ram Bhoga by way of encroachment. The learned senior counsel
submits that the village form 7/12 does not indicate any possession
of the petitioner or his father on the subject land. Even the village
form 8A shows the subject land as government land after its vesting
in the State Government in the year 1965. It is further submitted by
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the learned senior counsel that the circular dated 19.02.2018 issues
a direction in respect of those persons who have been allotted the
land in Santhani and who have completed all the formalities, but
have not been handed over the possession thereof. In the present
case, the said circular has no application since the petitioner came
to be only in possession of the subject land by virtue of the order
dated 25.03.1969 allotting the land to his father and putting him in
possession thereof on the said date. He submits that the Collector
has grossly erred in giving the benefit of the circular dated
19.02.2018. He submits that the Collector has passed the impugned
order dated 17.12.2020 without waiting for the record &
proceedings of the case which were transmitted by the Deputy
Collector to the Collector on 16.12.2020 and was received by the
Collector on 23.12.2020 i. e. after passing of the impugned order
dated 17.12.2020. He submits that therefore, there is a clear
illegality of procedure in passing the order. The learned Collector has
not even bothered to look into the record & proceedings of the
relevant revenue record before passing the order dated 17.12.2020
impugned before the Special Secretary (Appeals). He submits that
the order passed by the Collector also suffers from non-application
of mind, in as much as, he was very much aware of the respondent
No.6's application for grant/entrustment of the land for public
purpose and issuance of port notification. The record also reveals
that the Collector had also directed the revenue authority for
removing the encroachment on the subject land so that the said
land could be considered for allotment to the respondent No.6. The
learned senior counsel further submits that there is interpolation of
the government record and tampering of the same. The mutation
entry No.1303 only reflected the area allotted to one Bhoga Govind
and the name of the petitioner's father seems to have been inserted
therein to create a right. He submits that in respect of such
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interpolation of the government record, a criminal complaint came
to be filed by the authorities and the learned Judicial Magistrate First
Class, after conducting inquiry into the same, was pleased to pass
an order for issuance of process against the petitioner. The learned
senior counsel submits that the petitioner herein has applied for
regularization of the land in his name in the year 2017 in view of the
allotment order dated 25.03.1969. The said application has been
made after port project development has taken place in the area
and the sole purpose of making the application is to get undue
benefit since the owners of the neighboring lands have sold the land
by negotiation for the port project. The learned senior counsel
submits that much prior to the application made by the petitioner,
the respondent No.6 had already made an application for allotment/
entrustment of the said government land on 07.04.2010. Even if for
the sake of argument, it is to be believed that the petitioner was in
possession of the said land, the same was only by way of
encroachment since no formalities had been completed by the
father of the petitioner after allotment of the subject land and that
the said lands were shown as government land only in the revenue
record. Further, the learned senior counsel submits that in the
aforesaid circumstances, the petitioner is not entitled for any
equitable relief.
4.1 On the issue of locus of the respondent No.5, the learned
senior counsel submits that the bid of respondent No.5 came to be
accepted on 19.04.2008 and the State Government issued a letter
of intent for development of port on 25.04.2008. Thereafter, the
detailed project report was approved on 20.07.2010 and the public
hearing was also convened at the site on 19.11.2010. That
thereafter, an M.O.U. was executed in the year 2011 and the
environment clearance came to be granted on 06.01.2014. The
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concession agreement came to be executed on 29.01.2015. The
port limits came to be defined by issuance of Government Gazette
on 19.02.2015 and thereafter, the company started to procure the
large number of lands in the vicinity of the port limits. That on
18.10.2017, the company was granted the construction permission
and accordingly, the construction work is underway. It is submitted
that at this stage, after rise in the prices of the land in view of
development in the area, the petitioner, on 02.05.2017, applied to
the Mamlatdar for allotment/re-grant of the subject land, which
came to be rejected. The learned senior counsel submits that much
before the application of the petitioner, the respondent No.6 had
requested for allotment/entrustment of the government lands for
the port project. The said application was never rejected on merits,
but in view of the encroachment, it was kept in abeyance. He
submits that in view of such applications, the respondent Nos.5 and
6 are directly affected party as prior pending applications were
ignored and the order of the Collector for re-granting the land has
adversely affected the interest of the respondent Nos.5 and 6 and
therefore, they have locus to maintain the revision application
before the Special Secretary (Appeals). He submits that in the
revenue records, the land was shown to be the government land
and on account of the order dated 17.12.2020, the land has been
now transferred to the petitioner, thereby adversely affecting the
applications preferred by the respondent Nos.5 and 6 for allotment
and the same is prejudicial to their interest. The learned senior
counsel further submits that even otherwise, in the proceedings
under Section 211 of the Gujarat Land Revenue Code before the
State Government, there is no bar that only aggrieved party or the
party to the proceedings can approach the revisional authority. The
State Government can exercise the revisional power either suo motu
or otherwise to examine the order or the decision or as to the
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irregularity of the proceedings of the subordinate officer to find out
as to whether the orders passed are legal and proper. He, therefore,
submits that the respondent No.5 has locus to challenge the order of
the Collector dated 17.12.2020. In respect of the submission with
respect to Section 29 of the Gujarat Agricultural Land Ceiling Act in
respect of the priority for allotment of the government land, the
learned senior counsel submits that in the present case, the
petitioner realized that the allotment was made to his father in the
year 1969 and for re-grant of the same, the petitioner ought to have
established his case for allotment, which has not been done in the
present case. He submits that the petitioner has not fulfilled any
condition, nor the Collector has recorded any such submission of the
petitioner, whereby he is entitled for re-grant of the land by way of
Santhani. He further submits that it is not necessary under the
Gujarat Agricultural Land Ceiling Act that the land must be allotted
or is capable of allotment only under Section 29 of the Act. In the
present case, the application of the respondent No.6 was pending,
which is a Statutory Board and a State instrumentality. The use of
State Government land through its instrumentality will not amount
to transfer, but would be entrustment for public purpose. He
submits that the petitioner has submitted that he has a right for
allotment to the land and in any case, if the said land is required for
public purpose for construction of Port, then the said land can be
acquired from him, which suggests that the application of the
respondent No.6 for allotment/entrustment of the land is for public
purpose. He submits that in view of factual and legal position in the
present case, no interference is called for in the order of the Special
Secretary (Appeals) and the petitions be dismissed.
5. The learned senior counsel Mr. Kamal Trivedi appearing on
behalf of the respondent No.6 submits that the petitioner in the
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present case has not approached this Court with clean hands. He
submits that the present petitions suffer from material facts. He
submits that the original allotment order dated 25.03.1969 was
subject to various conditions and unless and until, all the conditions
in the said allotment order were complied with, no title could have
accrued in favour of the petitioner and his father. He submits that in
the present case, the petitioner's father has admittedly failed to
comply with the conditions contained in the allotment letter and
hence, the allotment never came into effect. He submits that after
the allotment of the subject land, the father of the petitioner and
thereafter, the petitioner never made any efforts to complete the
procedural formalities and the conditions stipulated in the allotment
order till 02.05.2017. The present petitioner made an application for
payment of occupancy price and to have his name entered in the
revenue record on the basis of the allotment letter dated
25.03.1969. He submits that the petitioner and his father allegedly
slept over their right and title for a period of 48 years. He further
submits that the petitioner has made first attempt to enter his name
in the revenue record only after the publication of the notification
dated 19.02.2015 in the Gujarat Government Gazette carving out
the port limits for Chhara port under the provisions of the Indian
Ports Act, 1908.
5.1 The learned senior counsel further submits that from the
revenue records which have been produced on record, barring initial
three years after the allotment i. e. 1969, 1970 and 1971, the name
of the petitioner's father has not been mentioned in the revenue
record of survey No.637 at any point of time. He submits that no
entry was made in favour of the petitioner's father as the conditions
of the allotment letter were never fulfilled by him. He further
submits that the revenue entry No.1303 in Village Form-6 pertains
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to the land allotted pursuant to the common allotment order to the
petitioner's uncle Bhoga Govind. This undisputed fact is also
reflected in the order dated 17.12.2020 passed by the petitioner.
5.2 The learned senior counsel submits that the respondent No.6
Gujarat Maritime Board had preferred several applications to the
Collector, Gir Somnath for allotment of the subject lands. He
submits that the first application seeking the allotment of the
subject land was made on 07.04.2010 as the respondent No.6 had
already issued a letter of intent dated 25.04.2008 to respondent
No.5 Simar Port Private Limited for development of all weather
direct berthing port. Further, vide letter dated 07.04.2010, the
respondent No.6 granted No Objection Certificate to respondent
No.5 Simar Port Private Limited to acquire the private lands for port
related activities. He, therefore, submits that the respondent No.6
was actively pursuing the grant of this subject land for the port
project much prior to the first application preferred by the petitioner
herein on 02.05.2017. The learned senior counsel submits that the
respondent No.6, thereafter, made various requests seeking
allotment of the subject land, however, the same could not be
processed as the Collector informed the respondent No.6 Board that
some local persons had encroached upon the subject land. He
submits that vide letter dated 30.09.2010 addressed to the
Collector, Veraval, while acknowledging and discussing the
application dated 07.04.2010 by the respondent No.6 Board for
allotment of the subject land, it is reported that the encroachment
has been done by one Rama Bhoga. He submits that in the
communication dated 20.12.2010, the Collector, Junagadh has
specifically stated that the subject land could not be allotted to the
respondent No.6 Board on account of the said encroachment. He
submits that the said report does not show the possession of the
petitioner as claimed.
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5.3 The learned senior counsel submits that the petitioner should
not be given any indulgence in view of contradictory stand taken by
the petitioner before the different revenue authorities. He submits
that the petitioner had earlier stated before the Deputy Collector
that his father was unable to pay the occupancy price pursuant to
the allotment order dated 25.03.1969. That thereafter, the same
stand was taken by the petitioner before the Talati, Sarkhadi.
However, by communication dated 02.02.2018, the petitioner
informed the Mamlatdar, Kodinar that his father had paid the
occupancy price at the relevant point of time pursuant to the
allotment order, but the petitioner was not in possession of the
payment receipt. The learned senior counsel finally submits that the
petitioner has requested that the occupancy price be charged along
the penalty and the land be re-granted to him. The learned senior
counsel submits that the present petitioner has no locus in the
subject land and he was never in possession of the same. That, he is
only trying to profiteer from the same since the lands are sought to
be acquired for the port project. He submits that the impugned
order passed by the learned Special Secretary (Appeals) is sound in
law and on facts and has been rendered after taking into
consideration all the revenue records in question. He submits that
no interference is called for in the present case and the impugned
order be upheld.
6. Heard the learned counsel for the parties and perused the
documents on record.
7. The first issue, which arises for the consideration of this Court
in the present case, is with respect to the locus of the respondent
Nos.5 and 6 to prefer the revision application before the Special
Secretary (Appeals). A perusal of the documents placed on record
shows that the land was originally allotted to the father of the
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petitioner viz. Virbhan Govind vide allotment order dated
25.03.1969. By the said allotment, Shri Virbhan Govind got two
parcels of land i. e. the land bearing survey No.637 admeasuring 11
Acres 19 gunthas and the land bearing survey No.633 admeasuring
5 Acres 10 gunthas upon the payment of the occupancy price of
Rs.2000/- which was to be paid within a stipulated period. Further,
the petitioner, in the present case, has made an application dated
22.08.2017 to the Deputy Collector, Una, stating therein that as Shri
Virbhan Govind, the father of the petitioner, could not deposit the
occupancy price within the stipulated time, for the conveyance of
the same, the land came to be vested in the State Government. The
aforesaid application dated 22.08.2017 is on record. Further, it
would be appropriate also to refer to the reply submitted by the
petitioner before the Talati, Sarkhadi on 18.10.2017, wherein it is
categorically stated that at the time, when the land came to be
allotted, Shri Virbhan Govind, the father of the petitioner, could not
pay the occupancy price towards the land in question. These two
documents, which are on record, are uncontroverted by the
petitioner herein and are submitted by him to the revenue
authorities. These documents show the admission on the part of the
petitioner in respect of the fact that the father of the petitioner
could not pay the occupancy price within the stipulated time at the
time of allotment on 25.03.1969 and therefore, there was no
conveyance of land in Santhani to the father of the petitioner. The
documents placed on record also further reveal that along with the
father of the petitioner, the petitioner's uncle i. e. brother of Shri
Virbhan Govind was also allotted the land in Santhani and he had
paid the occupancy price within the stipulated time in respect of the
survey No.633 allotted to him after completing the said prescribed
procedure. The name of Shri Bhoga Govind, the uncle of the
petitioner, came to be shown in the revenue record. The record
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further shows that as per the order dated 25.03.1969, the said
Bhoga Govind was allotted 17 Acres of land and Shri Virbhan
Govind, the father of the petitioner, was allotted 21 Acres 19
gunthas. The revenue record in respect of the survey No.633 shows
that it was Bhoga Govind, who was in possession of the entire 28
Acres 11 gunthas right from the year 1966-1967. A further perusal
of the revenue record in the present case shows that from the year
1971-1972 onwards, the name of the father of the petitioner viz.
Virbhan Govind is not recorded anywhere in the revenue records and
the possession of Bhoga Govind is shown for 17 Acres and rest of 11
Acres 19 gunthas is shown to be government land. The record
indicates that there was encroachment by Bhoga Govind, who was
the uncle of the petitioner and he was cultivating the lands in
question and after his death, it was held by way of encroachment by
one Rama Bhoga.
7.1 The contention of the petitioner is that even though the father
of the petitioner could not pay the occupancy price at the relevant
point of time, their name was reflected in the column of cultivator, is
factually incorrect and cannot be sustained. The revenue record
shows the name of the uncle of the petitioner viz. Bhoga Govind and
his legal heirs in the column of cultivators in the revenue record.
Further, the revenue record shows that the subject land had already
vested back into the State Government long back on account of
non-payment of the occupancy price. The record also reveals that
by application dated 02.05.2017 made to the Mamlatdar, Kodinar,
the petitioner, for the first time, sought to get his name entered into
the revenue record to become the allottee of the land in question on
the basis of the order of allotment dated 25.03.1969 in favour of his
father Virbhan Govind. The petitioner has not been able to prove
from the documents on record that the father of the petitioner, who
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expired on 15.01.1992, had ever made any attempt to pay the
occupancy price in view of the allotment letter dated 25.03.1969
during his life time. It is only, after a period of 48 years after the
allotment letter dated 25.03.1969 issued in favour of his father and
almost about 25 years after he expired, the petitioner, now, seeks to
enforce a right in terms of the said allotment letter. On the date of
making the first application dated 02.05.2017, the revenue record
shows that the said land was shown as government land.
7.2 As against this, testing the case put-forth by the respondent
Nos.5 and 6, the record reveals that the respondent No.5 company
had made a bid to develop Chhara port, which came to be accepted
by the State Government on 19.04.2008. Further, a letter of intent
for development of the said port also came to be issued by the State
Government to the respondent No.5 on 25.04.2008. The detailed
project report also came to be approved on 20.07.2010. An M.O.U.
was executed in the year 2011. All the formalities came to be
completed by the respondent No.5 company and the concession
agreement also came to be executed on 29.01.2015. Thereafter, the
State Government issued a notification on 19.02.2015 in the
Government Gazette defining the port limits and the company
started procuring the large number of lands in the vicinity of the
port to execute its project. During such acquiring of the lands, the
respondent No.6, by application dated 07.04.2010, had requested
for allotment of the said land for the port project, which was shown
as government land in the revenue record. This application was
pending with the Collector and a reply was given to the respondent
No.6 that in view of the encroachment by one Rama Bhoga, the land
could not be allotted to the respondent No.6. This application was
made seven years prior to the first application preferred by the
petitioner before the revenue authorities. The respondent Nos.5 and
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6 had made applications to the Collector in respect of the
government lands to be allotted to them for the port project.
Therefore, when the revenue record shows that the subject lands
were government lands and when the respondent Nos.5 and 6 had
also made an application to the Collector, Gir Somnath, for
allotment of the same subject lands for its Port Project in terms of
the Government Gazette notification defining the port limits, it
cannot be said that the respondent Nos.5 and 6 had no locus in the
present case in respect of the subject land.
7.3 Shri Percy Kavina, the learned senior counsel submitted that
as per the provisions of Section 29 of the Gujarat Agricultural Land
Ceiling Act, there is an order of priority for allotment and the
respondent Nos.5 and 6 do not figure in any such order of priority
and therefore, the said respondents are not entitled to intervene in
the present proceedings initiated by the petitioner. The said
argument may look appealing at the first blush, but upon reading
the provisions of the said Act, it cannot be said that the allotment of
the land can only be made under Section 29 of the Act. The surplus
land, which vests in the State Government by virtue of the
amendment to the Gujarat Agricultural Land Ceiling Act, can be
allotted for industrial as well as public purpose in addition to the
provisions of Section 29. A perusal of the provisions of the Act does
not bar the allotment of the government land for the purpose, for
which, the respondent Nos.5 and 6 seek the subject lands. Further,
the respondent No.6 is a statutory body, which is also an
instrumentality of the State, which can seek allotment of the subject
lands in view of the Government Gazette notifying the port limits.
Further, the communication by the Collector on the application
made by the respondent No.6 on 07.04.2010 shows that in view of
the encroachment of Rama Bhoga, the respondent No.6 could not be
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allotted the said land as only unoccupied land could be allotted
under the Gujarat Land Revenue Code.
7.4 During the course of the arguments, Shri Percy Kavina, the
learned senior counsel appearing for the petitioner has also
submitted that if the subject lands are to be acquired for the port
project from the private parties, after the notification of the port
limits in the Government Gazette, the respondent Nos.5 and 6 can
very well acquire the subject lands by way of private negotiation
from the petitioner. He further submitted that the interest of the
respondent Nos.5 and 6 will not be prejudiced or affected in such a
scenario. Be that as it may, when the revenue record shows that the
lands in question, which the petitioner seeks by way of enforcement
of the allotment order dated 25.03.1969, were "Sarkar Hastak" and
when there was a prior application made by the respondent No.6 on
07.04.2010 seeking allotment of the said government land, it cannot
be said that the respondent Nos.5 and 6 have no locus in the
subject land. In the present case, the same subject land was being
sought for by the petitioner herein seeking to enforce the letter of
allotment by way of Santhani in favour of his deceased father,
whereas the respondent Nos.5 and 6 were claiming the allotment of
the said land in question for the development of all weather port for
Chhara port in terms of the agreement signed between the State
Government, the respondent No.5 and the respondent No.6.
7.5 Shri Percy Kavina, the learned senior counsel also submitted
that the respondent Nos.5 and 6 could not be said to be "person
aggrieved". He has submitted that the provisions of Section 29
ought to be strictly followed and in view thereof, the respondent
Nos.5 and 6 are not aggrieved party.
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7.6 While interpreting the word "person aggrieved", this Court is
required to interpret the same in a wider perspective as the land in
question has to be acquired in any case in terms of the Government
Gazette notifying the port limits for the port project. The petitioner
herein has not denied the fact that the land, which is sought to be
re-granted to him by the order of the Collector, is to be ultimately
acquired for the purpose of construction of the port. Therefore, in
wider public interest and specially, when, even under the provisions
of the Gujarat Agricultural Land Ceiling Act, the State Government is
empowered to allot such land vested in it for industrial purpose. The
argument of Shri Percy Kavina, the learned senior counsel that the
provisions of Section 29 ought to be strictly followed and in view
thereof, the respondent Nos.5 and 6 herein cannot be said to be an
aggrieved party, has to be rejected and is accordingly rejected. This
Court holds that in view of the Government Gazette notifying the
port limits in respect of Chhara Port to be developed as all weather
Port by the respondent No.5, with the aid of the respondent No.6,
both the said respondents had equal locus as the petitioner in the
present case. On the date of the application made by the petitioner
for re-grant of allotment of land in his favour on the basis of
allotment letter dated 25.03.1969, the respondent Nos.5 and 6 were
also equally interested in the subject lands as in the revenue record,
the said lands were shown as Sarkar Hastak and the application of
the said respondents was also pending with the Collector for
allotment. In view of aforesaid, the judgments relied upon by Shri
Percy Kavina, the learned senior counsel will not be applicable in the
facts and circumstances of the present case.
8. Coming to the second issue, as to whether the petitioner was
entitled to be allotted the land in question by way of Santhani in
terms of the enforcement of allotment letter dated 25.03.1969
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issued in favour of his deceased father, it would be pertinent to
observe that the Mamlatdar had given a report rejecting the
application of the petitioner on the ground that the said letter of
allotment dated 25.03.1969 was a conditional order which did not
come into effect since admittedly, no formalities were completed by
the deceased father of the petitioner during his life time, in whose
favour, the land was allotted. In view thereof, the name of the
petitioner's father was never shown in the revenue record as an
allottee and the land all throughout was shown as "Sarkar Hastak".
The revenue record shows that there is an encroachment on the
subject land by Rama Bhoga. A perusal of the allotment letter dated
25.03.1969 would reveal that the said allotment was conditional.
The allottee was required to pay the occupancy price within a period
of one month. Thereafter, the allottee was required to pay the
measurement fees for measuring the land to be handed over for
possession. The allottee was required to cultivate the said land
personally and was liable to pay the revenue assessment to the
Government. Once these actions are undertaken by the allottee, the
allottee was to execute a kabulatnama in a prescribed form and as
cultivator, the name of the allottee would be mutated in the revenue
record and further procedure would be carried out. In the present
case, the petitioner has not placed on record any document to show
that the said procedure was followed by his deceased father and
pursuant to which, his name came to be mutated in the revenue
record. Therefore, the record reveals that the said conditional
allotment order was never acted upon by the father of the
petitioner, nor was given effect to and the father of the petitioner
was also never put in possession of the said lands.
8.1 It will be also pertinent to mention here that the petitioner
herein has taken contradictory stand before the different revenue
authorities. In the communication dated 22.08.2017, the petitioner
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has stated before the Deputy Collector that his father was unable to
pay the occupancy price pursuant to the allotment order dated
25.03.1969. Thereafter, in the communication dated 18.10.2017,
the petitioner once again stated that his father was unable to pay
the occupancy price. In the communication dated 02.02.2018 to the
Mamlatdar, Kodinar, the petitioner has stated that his father had
paid the occupancy price at the relevant point of time pursuant to
the allotment order dated 25.03.1969, however the petitioner was
not in possession of the payment receipt. This change of stand was
further reflected in the communication dated 07.08.2018 by the
petitioner. Finally, the petitioner has adopted the stand that his
father could not pay the occupancy price and that he should be re-
granted the land and the occupancy price along with penalty
thereon be charged from him while condoning the delay. Similar is
the stand taken by the petitioner in respect of the possession. The
petitioner alleges that he and his father are in possession of the
subject land since the date of the allotment order i. e. 25.03.1969.
However, in the application dated 02.02.2018 made to the
Mamlatdar, Kodinar, it is requested that in terms of the allotment
order dated 25.03.1969, he is ready and willing to pay the
occupancy price with interest and hence, the possession of the
subject lands may be handed over to him. In contrast, after the port
limits for Chhara port limits were notified in the Government Gazette
and the inspection of the subject lands was carried out by the Circle
Officer of the Mamlatdar office, Kodinar, the possession of the lands
in question is shown to be with one Rama Bhoga and other
encroachers. Further, in the communication dated 09.07.2019 of the
Collector in response to the respondent No.6's application dated
17.06.2019, it is informed that the subject lands are encroached
upon by some local persons, however, the possession of the
petitioner is not indicated therein also.
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8.2 In the present case, this Court finds that the father of the
petitioner did not complete any mandatory procedure in terms of
the allotment order dated 25.03.1969 and therefore, the allotment
order cannot be said to have come into effect. Further, the Deputy
Collector, Una, while rejecting the revision application of the
petitioner, vide order dated 20.01.2020, has recorded that the entry
No.1303 pertains to the land allotted to Shri Bhoga Govind i. e.
brother of the deceased father of the petitioner. In respect of the
said land, the occupancy price was also paid within one month and
necessary formalities had been completed.
8.3 A perusal of the order dated 17.12.2020 passed by the
Collector, Gir Somnath shows that he has not taken into
consideration various pending applications of the respondent No.6 in
respect of the subject lands while passing an order re-granting the
subject land to the petitioner herein. The Collector has also not
taken into consideration that by notification in the Government
Gazette, the port limits for the development of Chhara Port had
been delineated and the subject lands were situated in this area
which was marked for the port development. It is also brought on
record that the Collector has passed the order dated 17.12.2020 in
absence of the original record. By letter dated 16.12.2020, the
Deputy Collector, Una had sent the entire record of the subject land
to the Collector. The said letter is placed on record. A perusal of the
same shows that the said record was received by the Collector office
on 23.12.2020. Thus, it can be inferred that the Collector, Gir
Somnath has allowed the appeal filed by the petitioner in absence of
the original record. Further, the order of the Collector places reliance
on the government resolutions dated 24.12.1981 and 01.11.2003
along with circular dated 19.02.2018. After the perusal of the same,
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this Court finds that the said government resolutions and the
circular relied upon by the Collector are not applicable in the present
case as the same are only applicable on the government vest land.
Also, the government circular dated 19.02.2018, which is also on
record, is applicable only to the cases wherein the allottee has
complied with all the conditions in relation to the allotment made,
but such allottee has not been put in possession. In the present
case, the record reveals that the father of the petitioner had not
completed any of the procedures pursuant to the allotment letter
dated 25.03.1969 and it is also not the case of the petitioner that
his father had completed all the necessary procedures within the
stipulated time and that he was only waiting for the possession of
the subject land, that is, to say that he was waiting for around 48
years to be put in possession. On this ground also, the order of the
Collector, Gir Somnath dated 17.12.2020 cannot be sustained. The
reasoning given by the Collector in the said order is contrary to the
conditions of allotment when there is nothing on record to show that
the father of the petitioner had completed the necessary formalities.
Thus, a perusal of the order dated 17.12.2020 passed by the
Collector, Gir Somnath shows that has has actually failed to take
into consideration all the parameters while granting the actual
possession of the land to the petitioner by payment of occupancy
price and the interest thereon as penalty. Further, the action of
regularization by the Collector does not state any reason for
granting the same by way of Santhani after a period of almost 48
years and more so, when such land was notified for port
development and could no longer be used for agriculture.
8.4 The Special Secretary (Appeals) has given cogent and valid
reasons while rendering the findings in the impugned order, which
are based on the revenue record. In the present case, this Court has
independently examined all the record as well as the government
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resolutions and circular as relied upon by the Collector. This Court is
of the opinion that no interference is called for in the impugned
order.
9. By the impugned order, the Special Secretary (Appeals) has
rightly set aside the order dated 17.12.2020 passed by the
Collector, Gir Somnath in Appeal No. Land/3/Appeal/2 of 2020.
10. In view of aforesaid observations, this Court is of the opinion
that the present Special Civil Applications are devoid of merits and
the same are accordingly dismissed. Accordingly, the Civil
Applications do not survive and are dismissed.
No order as to costs.
(ANIRUDDHA P. MAYEE, J.)
Further order
After pronouncement of the judgment, the learned counsel for
the petitioner has submitted that this order be stayed for a period of
four weeks so as to enable the petitioner to approach the higher
forum. The said prayer is opposed by the learned counsels
appearing for the respondent Nos.5 and 6.
Considering the submissions, the present judgment is stayed
for a period of two weeks from today in the facts and circumstances
of the present case.
(ANIRUDDHA P. MAYEE, J.)
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