Gujarat High Court
State Of Gujarat vs Kunjalbhai Lalitbhai Patel on 14 February, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1052 of 2021
In R/SPECIAL CIVIL APPLICATION NO. 14410 of 2015
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In R/LETTERS PATENT APPEAL NO. 1052 of 2021
With
CIVIL APPLICATION (DIRECTION) NO. 1 of 2022
In R/LETTERS PATENT APPEAL NO. 1052 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
sd/-
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE sd/-
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1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
KUNJALBHAI LALITBHAI PATEL
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Appearance:
MR. K.M. ANTANI, AGP for the Appellant(s) No. 1,2
MR SK PATEL(654) for the Respondent(s) No. 1
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
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and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 14/02/2024
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL)
1. The instant Letters Patent Appeal is directed against the
judgment and order dated 12.03.2020 passed by the
learned Single Judge issuing directions to the Collector to
consider the claim of the petitioner for regularisation of
the sale transaction in favour of the petitioner in
accordance with the provisions of the Government
Resolution dated 17.03.2017 within a period of three
months from the date of receipt of the copy of the order.
2. In the original writ petition, the petitioner sought relief in
the nature of directions commanding the respondent No. 2
Collector to regularize the sale transaction in favour of the
petitioner by determining the requisite premium of the
land-in-question in accordance with law with the
contention that the petitioner is ready and willing to pay
the premium as may be calculated by the Collector.
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While issuing the directions noted hereinabove, the
learned Single Judge has allowed the writ petition by
setting aside the orders passed by the Revenue Authorities
in the proceedings of breach of conditions and resumption
of the land-in-question.
3. Challenging the order passed by the learned Single Judge,
it was vehemently argued by the learned Assistant
Government Pleader Mr. K.M. Antani appearing for the
State appellants that the learned Single Judge has erred in
setting aside the orders passed in the proceedings
conducted by the revenue authorities resulting into the
resumption of the land-in-question, when those orders
have not been challenged in the writ petition. Moreover,
the petitioner had approached the Writ Court without
adverting to the remedies available to him under the
Revenue Laws, thus, bypassing the alternative statutory
remedy available at the relevant point of time. The
contention, thus, is that the writ petition deserves to be
dismissed as non-maintainable on this ground only.
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4. Certain facts brought before us by the learned Assistant
Government Pleader are relevant to be noted hereunder : -
4.1 At the outset, it may be noted that the dispute
pertains to the Survey No. 1717, block no. 1155 of Village
Bhayali, Vadodara, which was purchased by the original
petitioner vide sale deed dated 07.03.2008. Indisputably
at the time of execution of the said sale deed, entry in the
revenue records of the land-in-question was of "old tenure
land". There is no absolutely dispute about the mutation
entry of the land-in-question being of "old tenure" in the
village Form No. 7/12 as on 07.03.2008, the date of
execution of the sale deed.
4.2 The respondent in their affidavit-in-reply (in
paragraph '8'), have stated that the land-in-question was
not "old tenure" but it was "new and restricted tenure
land" and in the year 2008 by mistake, the aforesaid land
was shown as "old tenure" in the revenue records of
village form No. 7/12, though infact it was a "new and
restricted tenure land" from the beginning, i.e. from 1951.
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The mistake had occurred during the computerization of
the revenue records and the land-in-question was shown
as "old tenure land".
4.3 It may further be noted that a mutation entry
No.12016 dated 30.03.2010 was made of the sale deed
dated 07.03.2008. It seems that at the time of certifying
the said entry, mistake about the entry of the nature of the
land-in-question was detected and by order dated
04.06.2010, the Circle Officer, Vadodara had cancelled the
kachcha entry No. 12016 dated 30.03.2010 in the name of
petitioner on the ground that the sale had taken place
without prior approval of the revenue authorities. The
RTS Appeal No. 16/11 filed by the petitioner before the
Deputy Collector, Vadodara (Rural) against the order
dated 04.06.2010 of the Circle Officer cancelling the
mutation entry No. 12016 in favour of the petitioner, came
to be rejected vide order dated 30.03.2013. The RTS
Revision No. 75/13 filed before the Collector also came to
be rejected vide order dated 25.06.2015.
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4.4 In the meantime, the Deputy Collector, Vadodara
(Rural) initiated separate proceedings for Sharat Bhang
with the issuance of notice dated 10.05.2013 and the
order dated 25.05.2015 has been passed by the Deputy
Collector in Sharat Bhang Case No. 9 of 2013 to the effect
that the purchase of the land-in-question by the petitioner
was without prior sanction of the competent authority and,
therefore, the order for vesting of the land-in-question
with the State Government and under Section 79A of the
Gujarat Land Revenue Code, 1879 (hereinafter referred to
as 'the Code, 1879', for short) has been passed for
summary eviction of the petitioner from the land-in-
question. We may note that the petitioner did not
challenge the order passed by the Deputy Collector dated
25.05.2015 for summary eviction of the petitioner by
vesting of the land-in-question at the relevant point of time
and straightway approached this Court by filing the
original writ petition in the month of August, 2015 with
the following reliefs : -
"16(B) Be pleased to issue an appropriate writ, order
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or direction, directing the respondent no. 2 to
regularize sale transaction in favour of the petitioner
by determining the requisite premium of land in
accordance with law as the petitioner is willing to pay
premium for their land Survey No. 1717, block no.
1155 of Village Bhayali, Vadodara;
(C) Pending admission and till final disposal of the
present petition grant stay as to RTS proceeding and
Saratbhang proceedings in respect of land of the
petitioner bearing Survey No. 1717, block no. 1155 of
Village Bhayali, Vadodara on the basis of registered
sale deed dated 07.03.2008 in favour of the
petitioner."
5. The basis of the said prayers made by the petitioner in the
original writ petition was the Government Resolution
dated 16.03.1982 and other similar guidelines issued by
the State Government for fixing premium by the Collector
to regularize unauthorized occupation of the purchasers.
It is stated in the writ petition that considering the
possession of the original owner of the land-in-question
namely Dahyabhai Chaturbhai Harijan being more than 15
years on the date of execution of the sale deed, the case of
the petitioner was required to be considered for payment
of premium. An offer was given by the petitioner in the
writ petition itself that he was ready and willing to pay
premium as may be fixed by the State Government in
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accordance with its policy.
6. An affidavit-in-reply on behalf of the State respondents
was filed in the month of March, 2017, sworn-in on
14.03.2017, contesting the writ petition on the ground of
availability of alternative remedy to challenge the order
passed against the petitioner dated 25.06.2015 in the
matter of cancellation of mutation entry and the order
dated 25.05.2015 under Section 79A of the Code, 1879, for
summary eviction of the petitioner, before appropriate
statutory Forum. The contention therein was that the writ
petition was required to be dismissed as alternative
remedy was available to the petitioner for challenging
both the orders before the appropriate Forum.
7. It would be pertinent to note, at this juncture, in the
original writ petition that the petitioner had given a
correct disclosure of the proceedings drawn against him
and there is no concealment of any material facts. At the
cost of repetition, it may be noted here that in the
affidavit-in-reply, it was admitted that at the time of
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execution of the sale deed dated 07.03.2008, the land-in-
question was shown as "old tenure land" in village form
No. 7/12.
8. During the pendency of the writ petition, a Government
Resolution dated 17.03.2017 came to be issued by the
Revenue Department, Government of Gujarat, in the
matter of grant of permission for change of "old tenure
land" in case of bona fide purchase from agriculture to
agriculture or non-agriculture purposes, after receipt of
premium for the land. The said Government order was
pressed into service by the petitioner by bringing the same
on record by way of rejoinder filed by him. Instances of
the decision for regularization of the adjoining land in
Block No. 1154 was given by bringing on record the order
dated 15.07.2017 of the Collector, whereby the order of
regularization of the sale deed dated 10.03.2008 was
passed, while setting aside the order passed by the Deputy
Collector, Vadodara on the condition to apply the Collector
within a period of 60 days for conversion of the said land
on payment of premium. It was reiterated that the
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petitioner was ready and willing to pay premium for the
land-in-question and the transaction dated 07.03.2008 in
favour of the petitioner be regularized by determining the
requisite premium of the land-in-question in accordance
with law.
9. We may note that the learned Single Judge has
categorically recorded that it was an admitted position
that at the relevant time, Block No. 1155 of Village Bhayali
was shown as a "old tenure" in the revenue records and
the fact that the land-in-question was not of "old tenure",
but was of "new tenure" came to light much later at the
time of certifying the entry No. 12016 dated 30.03.2010
resulted in passing of the order dated 04.06.2010. It is
also undisputed that Sharat Bhang proceedings with the
show cause notice dated 10.05.2013 were initiated on the
ground that the purchase of the land-in-question by the
petitioner was without prior sanction of the competent
authority and, hence, the petitioner was liable to be
summarily evicted, being in unauthorized occupation /
wrongful possession of the land-in-question.
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10. It is argued by the learned AGP appearing for the
State appellants that the land-in-question is a "new
impartible tenure", a category of "Chakariyat allotment"
and was covered by Section 62 of the Code, 1879. It was
submitted that the land of the said category could have
been occupied subject to payment of the price for
unalienated land, which may be subject to the conditions
fixed by the Collector in the letter of grant. The
contention is that very limited rights have been conferred
upon the person occupying the land-in-question in favour
of whom the grant was given by the Collector. The
alienation of such category of land, which was "new and
impartible tenure", was not at all permissible.
11. To deal with the above submissions, we may note
that a perusal of the order dated 25.05.2015 passed by the
Deputy Collector under Section 79A of the Code, 1879,
indicates that the reasons given therein for summary
eviction of the petitioner from the land-in-question was
that the heirs of the original grantee had sold the land-in-
question which was "new and indivisible tenure land"
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without prior permission of the competent officer by way
of a registered sale deed dated 07.03.2008. The mutation
entry No. 12016 with regard to the aforesaid sale deed
had been cancelled as there was no proof regarding prior
permission. It was noted that on perusal of the original
record of the land-in-question, it was found to be "new and
indivisible tenure type" and the sale transaction was in
breach of condition, having been executed without prior
permission of the competent authority. It was, thus, noted
that after giving due opportunity of hearing to the
petitioner namely the purchaser as also the seller, the
original owner, the land-in-question was admitted in the
government records free from all encumbrances, in
exercise of power under Section 79A of the Code, 1879. It
was noted therein as well that upon revenue entry no.
11365 dated 04.08.2008, by virtue of promulgation order,
"old tenure type" was deleted and the land-in-question was
entered into government Chakariyat transfer and hence,
there appears to be restrictions of "new and indivisible
type tenure" without obtaining prior permission of the
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competent authority. It was noted in the order dated
25.05.2015 under Section 79A that the seller of the land-
in-question namely the original owner did not come
forward and the petitioner herein namely the purchaser in
reply to the notice issued under Section 79A of the Code,
1879 had pleaded that he was bona fide purchaser of the
land-in-question.
12. The order dated 25.05.2015 also records that the
land-in-question has been shown in the land revenue
records as "old tenure type". It also records that the
purchasers shown their readiness and willingness to pay
the premium of the land-in-question as per jantri rates and
requested to accept the premium, if payable, as per the
rules for conversion of land from "new tenure type" to "old
tenure" and to regularize the sale transaction.
13. The order of the Deputy Collector dated 25.05.2015
passed in the summary proceedings of eviction of the
petitioner on the premise of being unauthorized occupant
of the land-in-question referring to the revenue entries of
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the land-in-question being "government chakariyat" and
"new and indivisible tenure land" has proceeded to record
that the sale transaction was in breach of condition of the
prior permission of the competent authority. No
consideration at all has been given to the prayer of the
purchaser - original petitioner herein that he was ready
and willing to pay the premium of the land-in-question for
its conversion from "new tenure type" to "old tenure" as
per the jantri rates / rules for conversion, and he was a
bona fide purchaser.
14. It seems that for this reason, the original petitioner
instead of approaching the revenue authorities to
challenge the order passed by the Collector had proceeded
to file the writ petition with the above-noted reliefs. It also
pertinent to note that during pendency of the writ petition,
the petitioner had filed an appeal against before the
Collector against the order dated 25.05.2015 passed by
the Deputy Collector Vadodara (Rural) in Sharat Bhang
Case No. 9/13 which had been dismissed vide order dated
29.11.2019 on the ground of being preferred after expiry
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of three years and five months from the date 25.05.2015,
of the order of the Deputy Collector.
15. The fact remains that prayer of the original
petitioner for conversion of the land-in-question from "new
tenure" to "old tenure" by payment of premium being a
bona fide purchaser has not been considered at any stage
of the proceedings conducted by the respondents.
16. It is not case of the respondents that the original
petitioner had any opportunity to know the correct status
of the land-in-question at the time of execution of the sale
deed dated 07.03.2008 in his name. Mutation entry of the
land-in-question of being of "old tenure" at the time of
execution of the sale deed in favour of the petitioner, there
was no occasion for the petitioner to know the correct
nature of the land-in-question. The sellers / original
owners did not come forward before the Collector in the
proceedings under Section 79A of the Code, 1879 for
summary eviction of the occupant.
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17. It cannot be disputed before us by the learned AGP
that the petitioner herein would fall in the category of
bona fide purchaser. Only submissions made before us was
that the land-in-question being "new and impartible tenure
of chakariyat allotment", could not have been transferred
at all. The reference was given to Section 62 of the Code,
1879 to assert that the land-in-question was inalienable
land. We do not find any substance in the submissions of
the learned Assistant Government Pleader that the land-in-
question could not be alienated by the allottee or his heirs
at all, having noted the contents of the order dated
25.05.2015 passed by the Deputy Collector, Vadodara
(Rural) in the proceedings under Section 79A of the Code,
1879. As per the said order, the land-in-question was
vested with the State Government for the reason that the
sale transaction was made without prior permission of the
Competent Authority.
18. In the said scenario, we may further record that after
the order passed by the Deputy Collector for eviction of
the petitioner from the land-in-question, vide Government
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Resolution dated 17.03.2017, the State Government itself
came out to the rescue of the bona fide purchaser in cases
where revenue records reflected the land subject matter of
sale to be "old tenure" land. The learned Single Judge,
therefore, cannot be said to have erred in noticing the
relevant clauses of the Government Resolution dated
17.03.2017 for holding that the instant case falls within
the purview of the said government order and the
instances as provided therein in relevant clauses extracted
in the judgment impugned, pertain to the specific
instances mentioned herein. No error could be found in
the opinion drawn by the learned Single Judge that unless
the order passed in the proceedings under Section 79A of
the Code, 1879 for vesting / resumption of the land-in-
question for breach of condition of prior approval are set
aside, benefit of the government order cannot be given to
the petitioner.
19. The fact remains that the land-in-question remains in
possession of the petitioner throughout from the date of
the execution of the sale deed dated 07.03.2008 and the
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order dated 25.05.2015 of resumption of land-in-question
and eviction of the petitioner has not been given effect to.
In the meantime, the government order dated 17.03.2017
came to be issued which provides for the benefits to the
bona fide purchasers like the petitioner herein.
20. As noted above, the prayer made by the petitioner
before the Deputy Collector in Sharat Bhang Case No. 9 of
2013 to regularize the sale transaction as per the then
existing rules / policy has not been adverted to.
21. We, therefore, do not find any error in the order
passed by the learned Single Judge, however, the
operative portion of the judgment and order dated
12.03.2020 passed by the learned Single Judge is modified
to the extent that on an application filed by the original
petitioner along with the copy of this order, the Collector,
Vadodara shall be required to consider the case of the
petitioner for grant of benefit of the Government
Resolution dated 17.03.2017, considering that the
petitioner had prayed from the beginning that he was
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ready and willing to pay the premium as per the rules for
regularization of the sale transaction. The question as to
whether the claim of the petitioner is covered by the
Government Resolution dated 17.03.2017, shall be
determined by the Collector by passing a reasoned and
speaking order in accordance with law within a period of
three months from the date of receipt of copy of this order
giving due consideration to the observations made
hereinabove.
22. Subject to above, the present Letters Patent Appeal
stands disposed of. All pending Civil Application(s) shall
also stand disposed of.
(SUNITA AGARWAL, CJ )
(ANIRUDDHA P. MAYEE, J.)
AMAR SINGH
