Gujarat High Court

Umatiya Hasambhai Nurjibhai vs State Of Gujarat on 20 February, 2024

Author: Nirzar S. Desai

Bench: Nirzar S. Desai

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    C/SCA/15641/2016                             JUDGMENT DATED: 20/02/2024

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            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 15641 of 2016


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy
      of the judgment ?

4     Whether this case involves a substantial question
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                       UMATIYA HASAMBHAI NURJIBHAI
                                  Versus
                         STATE OF GUJARAT & ORS.
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Appearance:
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
ULLASH N GOHIL(8357) for the Petitioner(s) No. 1
MR. NIKUNJ KANARA, ON ADVANCE COPY SERVED TO GOVERNMENT
PLEADER/PP for the Respondent(s) No. 1,2,3
NOTICE SERVED for the Respondent(s) No. 1,2,3
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    CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                             Date : 20/02/2024

                             ORAL JUDGMENT

1. RULE. Learned AGP Mr. Nikunj Kanara waives service of notice

of rule for and on behalf of the respondent - State.

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2. By way of this petition, the petitioner has prayed for quashing and

setting aside the order dated 06.02.2014 passed by the Collector,

Banaskantha in N.K./JAMAN/3/Vashi.no.7748 to 7753 as well as

the order dated 18.06.2016 passed by the Special Secretary,

Revenue Department (Appeals) in Revision Appliation No. MVV/

JAMAN/BANAS/25 of 2014 confirming the order passed by the

Collector, Banaskantha and rejecting the revision application of

the petitioner for regularization of encroachment of the land in

question.

3. Heard learned advocate Mr. S. P. Majmudar with learned advocate

Mr. Shagun Choksi for the petitioner and learned AGP Mr. Nikunj

Kanara for the respondent - State.

4. It is the case of the petitioners that the petitioner is in possession

in respect of land bearing Survey No. 267 paiki, Taluka: Danta,

District : Banaskantha admeasuring 1 acre 20 gunthas and the said

land is located on the boundary between village : Panjarpur,

Village: Ganchherani and Village: Hedo. The said land is

encroached upon by the petitioner and the petitioner is the original

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owner of the land at Survey Nos. 41 and 42 of Village: Hedo

which are adjoining to the land in question.

4.1. It is the case of the petitioner that the land in question originally

belonged to Maharaj Madhusudansinhji and thereafter, the same

was vested into Gram Panchayat, Panjarpur and when the

petitioner was asked to pay the penalty for a period of 1968 -

1969 to 1993-1994 by the Gram Panchayat, the same was paid by

the present petitioner.

4.2. According to the petitioner, the Government has vide

Government Resolution dated 08.01.1980 by the Revenue

Department has framed a policy for regularization of

encroachment on the government land and therefore, pursuant to

the aforesaid policy introduced vide Government Resolution dated

08.01.1980, the petitioner applied for regularization of his

encroachment over the subject land but the said application was

rejected vide order dated 30.06.2000. The petitioner challenged

the said order dated 30.06.2000 passed by the Collector,

Banaskantha by way of Revision Application No. MVV/JAMAN/

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61/2000 before the Special Secretary, Revenue Department and

Special Secretary, Revenue Department vide order dated

12.07.2001 partly allowed the revision application and remanded

back the matter to the learned Collector. Upon remand, learned

Collector vide order dated 17.05.2007 once again rejected the

application of the petitioner for regularization which was again

challenged by the petitioner before the Special Secretary, Revenue

Department. Being aggrieved by the aforesaid order dated

17.05.2007 , the petitioner preferred revision application before

the Special Secretary, Revenue Department being Revision

Application No. MVV/JAMAN/BANAS/43/2007. The said

revision application was partly allowed vide order dated

23.11.2013 and again the same was remanded back to the

Collector, Banaskantha. While remanding the matter back, the

Special Secretary, Revenue Department observed that the

Government Resolution dated 08.01.1980 be considered by

learned Collector while disposing of the application of the

petitioner.

4.3. Pursuant to the aforesaid remand,when the proceedings were

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decided by the Collector, Banaskantha, he once again vide order

dated 06.02.2014 rejected the application of the petitioner and

hence, being aggrieved by the rejection of the application for

regularization even after second remand, vide order dated

06.02.2014 the petitioner challenged the same before Special

Secretary, Revenue Department by preferring Revision

Application No. MVV/JAMAN/BANAS/25/2014. However,

initially after granting the stay in favour of the petitioner once

again by order dated 18.06.2014, the Special Secretary, Revenue

Department rejected the revision application of the petitioner and

hence, being aggrieved by and feeling dissatisfied with the order

dated 06.02.2014 passed by the Collector, Banaskantha and

18.06.2016 passed by the Special Secretary, Revenue Department

confirming the order passed by the Collector, Banaskantha, the

petitioner has preferred this petition.

5. Learned advocate Mr. S. P. Majmudar appearing for the petitioner

submitted that despite positive observations made by Special

Secretary, Revenue Department while remanding the matter back

to the Collector and though the petitioner is fulfilling the condition

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of Government Resolution dated 08.01.1980, the Collector,

Banaskantha has committed an error by not confining himself to

the observations made by Special Secretary, Revenue Department

and has committed an error by considering the issue from

altogether a different aspects and thereby, he has committed an

error by rejecting the application for regularization preferred by

the petitioner.

5.1. Learned advocate Mr. S. P. Majmudar submitted that the

Government Resolution dated 08.01.1980 provides that the land

can be regularized in case if the holding of the person who has

encroached upon the land is less than 8 acres. In the instant case,

though the holding of the petitioner was less than 8 acres, despite

that the Collector observed that the petitioner is already holding a

land which is less than 8 acres and therefore, he can easily meet

with his daily requirements and earn his livelihood and therefore,

by making such observation, he has not considered the matter by

taking into consideration the directions issued by the Special

Secretary, Revenue Department while remanding the matter.

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5.2. Learned advocate Mr. Majmudar submitted that the Special

Secretary, Revenue Department being higher authority, once the

higher authority has mandated the Collector to consider the matter

in light of Government Resolution dated 08.01.1980, the

consequential order by the Collector was only formality as the

Special Secretary, Revenue Department has already considered

the matter on merits and the language of the order itself suggest

that all that was required to be done by Collector was to pass a

consequential order after considering the observations made by

the Special Secretary, Revenue Department.

5.3. Learned advocate Mr. Majmudar further submitted that the

order passed by the Special Secretary, Revenue Department while

making positive observations in favour of the petitioner which was

passed on 19.11.2013 was never challenged by the State and

therefore, the aforesaid observation having been made by the

higher authority, it was the duty of the Collector to obey the same

and to act in accordance with the aforesaid order. He, therefore,

submitted that despite the specific observation made by the

Special Secretary, Revenue Department in his order dated

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19.11.2013 whereby after considering the merits of the matter, the

Special Secretary, Revenue Department has opined that the

encroachment made by the petitioner is required to be regularized,

it was not open for the Collector, Banaskantha to take a contrary

view and reject the application made by the petitioner. He,

therefore, prayed for quashing and setting aside both the

impugned orders dated 06.02.2014 passed by the Collector,

Banaskantha in N.K./JAMAN/3/Vashi.no.7748 to 7753 as well as

the order dated 18.06.2016 passed by the Special Secretary,

Revenue Department (Appeals) in Revision Appliation No. MVV/

JAMAN/BANAS/25 of 2014.

5.4. Further learned advocate Mr. S. P. Majmudar also has

submitted that the contentions of the petitioner were not dealt with

by the Special Secretary, Revenue Department while rejecting the

revision application of the petitioner.

6. Learned AGP Mr. Nikunj Kanara appearing for the respondent -

State vehemently opposed this petition and submitted that the

petitioner cannot claim regularization as a matter of right. If the

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matter of regularization is claimed as a matter of right and such

requests are considered and the State is directed to consider, than

that will encourage the people to encroach upon the government

land. Learned AGP Mr. Nikunj Kanara pointed out that the

government resolution itself also states that what is important is to

remove the encroachment as far as possible and it is only after

overall evolution of the facts and circumstances, it is a

discretionary powers vested with the concerned Collector to

decide whether to regularize the encroachment or not.

6.1. Learned AGP Mr. Kanara further pointed out that government

resolution is mainly aimed at poor person, downtrodden persons,

Schedule Tribe Community and Backward Class Community. He

further drew attention from the averments made in the petition

itself that the petitioner is already holding two portion of land i.e.

Survey Nos. 41 and 42 at Village: Hedo and this is the additional

land which is adjacent to the original land held by the petitioner

which is encroached upon by the petitioner and therefore, as the

petitioner is already having two survey numbers of land, the

question of livelihood has rightly been considered by the

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Collector.

6.2. Learned AGP Mr. Kanara submitted that what is required to be

considered in view of government resolution dated 18.01.1980 is

an evaluation about the hardship that a person may face. Even if a

person is holding less than 8 acres of land unless the Collector

comes to a conclusion that non-regularization of encroachment

would lead to hardship, such regularization is impermissible.

6.3. Learned AGP Mr. Kanara further submitted that 8 acres of

land is kept for regularizing the encroached land but it does not

mean that any land if regularized and added to the land already

held by the concerned person is less than 8 acres of land, all such

encroachments are regularized.

6.4. According to learned AGP Mr. Kanara, the aspect of 8 acres of

land is one of the consideration for regularization of encroached

land but that is not the sole consideration and even government

resolution also provides that it is on overall evaluation of the facts

and circumstances that concerned Collector is required to decide

the application of regularization of encroached land.

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6.5. Learned AGP Mr. Kanara relied upon the order passed by the

Division Bench of this Court in Letters Patent Appeal No. 1419 of

2015 dated 04.01.2016 reported in AIR 2016 Guj. 42 and by

relying upon paragraph no. 4 of the aforesaid judgment submitted

that allotment of land or regularization of land is no vested right of

the applicant or the petitioner as the case may be even if such

policy exists. Such policy is by way of enabling powers but on the

basis of such policy, the citizens cannot compel the government

for allotment or regularization of land for his own purpose.

6.6. Learned AGP Mr. Kanara submitted that the total holding of

the petitioner as considered by the Collector is 6 acres and

therefore, when the Collector has opined that the petitioner can

earn his livelihood easily from the proceeds of the aforesaid land

already held by the petitioner, the question of hardship which is

the prime consideration for regularization of encroachment has

rightly been considered by the Collector, Banaskantha and

confirmed by the Special Secretary, Revenue Department and

therefore, the Collector has rightly rejected the petitioner's

application for regularization of encroachment as the total holding

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of the petitioner in respect of overall land is more than 6 acres and

therefore, earning livelihood is not a problem for the petitioner.

6.7. Learned AGP Mr. Kanara further pointed out from the

government resolution that government resolution is meant for

downtrodden class of people, back ward class, Scheduled caste

and other economically weaker sections with a view to provide

them livelihood by regularizing the encroachment. Once the

Collector has already came to the conclusion that the petitioner is

sufficiently earning his livelihood by regularizing the

encroachment, the very purpose of government resolution would

be frustrated. He submitted that such government resolutions can't

be pressed into service just to see that a person who has already

encroached upon the land for number of years is encouraged to do

such activities. If such encroachment is regularized, it will

encourage others also to encroach upon the government land and

therefore, he prayed for dismissal of the petition.

7. I have heard learned advocates for the respective parties and

perused the record. I have also considered the government

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resolution dated 08.01.1980. On perusal of record, I found that

government resolution dated 08.01.1980 provides for

encroachment on government land. However, even as per the said

government resolution, the first and foremost requirement is to

remove the encroachment as far as possible. As far as the

regularization of encroachment on agricultural land is concerned,

Clause 6 (1) provides that if the land is required for public purpose

irrespective of hardship caused to the encroacher, the said

encroachment is required to be removed. Clause 6 (2) provides

that if the Collector upon ground reality is of the view that by

removing the encroachment, the encroacher face hardship and will

be in a very pitiable condition then only the Collector can consider

of regularizing the encroachment to the extent that holding of a

person should not exceed 8 acres. Clause 6 (2) if can be read, what

is important is that it gives discretionary powers to the Collector to

consider the application for regularization. First the Collector is

required to come to a conclusion that as to whether such removal

of encroachment would lead to a great hardship to the encroacher

and whether he shall be put into pitiable condition or not. It is only

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after the Collector arrives at a conclusion that removal of

encroachment would lead to pitiable condition of the encroacher

and may cause hardship to the encroacher then only the question

about whether the total holding of the land is less than 8 acres or

more than 8 acres is required to be considered.

8. In light of the aforesaid provision, if the observation made by the

Special Secretary, Revenue Department in the order dated

19.11.2013 is seen, all that was considered by the Special

Secretary, Revenue Department (Appeals) was that the

encroachment was done prior to 1972 and the petitioner is holding

less acre of land than required and therefore, he has opined

positively and remanded the matter for regularization of

encroachment.

9. On perusal of the order passed by the Special Secretary, Revenue

Department (Appeals) dated 19.12.2013, it also states that earlier

also the petitioner's application for regularization was rejected on

four different grounds and he has considered that there was

positive opinion for regularization of the land. However, the

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Special Secretary, Revenue Department while remanding the

matter back has passed an order that after fixing the market price

of the land, the land may be regularized.

10. When the matter was remanded back, the Collector acted in

accordance with the provision of Clause 6 (2) and therefore, he

first considered the aspect about hardship and whether it will put

the petitioner into pitiable condition or not. The Collector has

rightly considered the aforesaid aspect because clause 6 (2)

provides that only after a positive conclusion of the Collector that

removal of land would put the encrocher into hardship or will lead

to pitiable condition, if such conclusion is arrived at then only the

question about his total holdings was required to be considered.

11. In the instant case, the Collector has categorically stated that

the petitioner is already holding more than 6 acres of land and he

is earning his livelihood out of it and therefore, there is no

question of regularizing the encroachment made by the petitioner.

As the petitioner could not clear the first hurdle about pitiable

condition and hardship, the question of whether the petitioner is

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holding less than 8 acres of land or not would not arise. Further

the petitioner cannot claim regularization of encroachment as a

matter of right. Such policies are framed by the Government just

to ensure that a person even if has made encroachment on account

of compelling circumstances just to earn his livelihood, such mean

of livelihood may not be taken away and therefore, if any

benovalent policy is introduced by way of government resolution

dated 08.01.1980, if despite a positive finding that the petitioner is

earning his livelihood out of his original holding would

encourage others also to encroach upon the land. If the petitioner's

application for regularization is considered positively and

impugned orders are passed, in that case, it would amount to

allowing a person to regularize the encroachment and thereby

providing him luxurious life by offering government land

encroached upon by him on a silver platter which was not the

purpose behind the Government Resolution dated 08.01.1980.

Further the Division Bench of this Court while passing the order

dated 04.01.2016 in Letters Patent Appeal No. 1419 of 2015 in

paragraph no. 4 observed as under:-

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"4. We may record at the outset that there is no vested right with the petitioner to get the land allotted by the Government even if such policy exists. The policy is by way of enabling power but thereby citizen cannot compel the allotment of the land for his own purpose."

12. In view of above observations, it can be said that an

encroacher cannot claim regularization of his encroachment even

if there is a government policy as a matter of right as such policy

is only an enabling power that can be exercised in appropriate case

by the authority to exercise such powers.

13. In view of above, I do not see any reason to interfere with the

order dated 06.02.2014 passed by the Collector, Banaskantha in

N.K./JAMAN/3/Vashi.no.7748 to 7753 and the order dated

18.06.2016 passed by the Special Secretary, Revenue Department

(Appeals) in Revision Appliation No. MVV/JAMAN/BANAS/25

of 2014.

14. Resultantly this petition is required to be dismissed and the