IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No 8361 of 1995 with SPECIAL CIVIL APPLICATION No 1301 of 1994 with SPECIAL CIVIL APPLICATION No 4837 of 1995 with SPECIAL CIVIL APPLICATION No 9880 of 1994 with SPECIAL CIVIL APPLICATION No 3107 of 1999 with SPECIAL CIVIL APPLICATION No 8039 of 1993 with SPECIAL CIVIL APPLICATION No 10309 of 1995 with SPECIAL CIVIL APPLICATION No 1305 of 1994 with SPECIAL CIVIL APPLICATION No 5840 of 1995 with SPECIAL CIVIL APPLICATION No 10778 of 1995 with SPECIAL CIVIL APPLICATION No 8002 of 1998 For Approval and Signature: Hon'ble MR.JUSTICE H.K.RATHOD ============================================================ 1. Whether Reporters of Local Papers may be allowed : YES to see the judgements? 2. To be referred to the Reporter or not? : YES 3. Whether Their Lordships wish to see the fair copy : YES of the judgement? 4. Whether this case involves a substantial question : NO of law as to the interpretation of the Constitution of India, 1950 of any Order made thereunder? 5. Whether it is to be circulated to the Civil Judge? : NO -------------------------------------------------------------- SANJAYBHAI INDUPRASAD BHATT Versus STATE OF GUJARAT -------------------------------------------------------------- Appearance: 1. Special Civil Application No. 8361 of 1995 MR AJ PATEL for Petitioners MR LR PUJARI, AGP for Respondent 2. Special Civil ApplicationNo 1301 of 1994 MR AJ PATEL for Petitioners MR LR PUJARI, AGP for Respondent 3. SPECIAL CIVIL APPLICATION No 4837 of 1995 MR AJ PATEL for the Petitioner MR LR PUJARI, ASTT GOVT PLEADER 4. SPECIAL CIVIL APPLICATION No 9880 of 1994 MR SM SHAH for petitioner MR LR PUJARI ASSTT GOVT PLEADER 5. SPECIAL CIVIL APPLICATION No 3107 of 1999 MR CB DASTOOR for Petitioner MR LR PUJARI ASSTT GOVT PLEADER 6. SPECIAL CIVIL APPLICATION No 8039 of 1993 MR PJ VYAS for petitoner MR LR PUJARI ASSTT GOVT PLEADER 7. SPECIAL CIVIL APPLICATION No 10309 of 1995 MR YOGESH RAVANI for Petitioner MR IM PANDYA ASSTT GOVT PLEADER 8. SPECIAL CIVIL APPLICATION No 1305 of 1994 MR AJ PATEL for petitioner MR IM PANDYA ASSTT GOVT PLEADER 9. SPECIAL CIVIL APPLICATION No 5840 of 1995 MR AJ PATEL for petitioner MR IM PANDYA for Respondent 10. SPECIAL CIVIL APPLICATION No 10778 of 1995 MR AJ PATEL for Petitioner MR IM PANDYA for Respondent 11. SPECIAL CIVIL APPLICATION No 8002 of 1995 MR AJ PATEL for petitioner MR IM PANDYA for Respodents -------------------------------------------------------------- CORAM : MR.JUSTICE H.K.RATHOD Date of decision: 12/10/2000 COMMON CAV JUDGEMENT "THERE IS AN ESSENTIAL DISTINCTION BETWEEN THE COURT AND AN ADMINISTRATIVE TRIBUNAL. A JUDGE IS TRAINED TO LOOK AT THINGS OBJECTIVELY UNINFLUENCED BY CONSIDERATION OF POLICY OR EXPEDIENCY BUT AN EXECUTIVE OFFICER GENERALLY LOOKS AT THINGS FROM THE STAND POINT OF POLICY AND EXPEDIENCY. THE HABIT OF MIND OF AN EXECUTIVE OFFICER SO FORMED CANNOT BE EXPECTED TO CHANGE FROM FUNCTION TO FUNCTION OR FROM ACT TO ACT. SO IT IS ESSENTIAL THAT SOME RESTRICTIONS SHALL BE IMPOSED ON TRIBUNALS IN THE MATTER OF PASSING ORDERS AFFECTING THE RIGHTS OF THE PARTIES." "IT WAS NOT "LAW OF NATURE" IN THE SENSE OF THE LAW OF JUNGLE, WHERE THE LION DEVOURS THE LAMB AND THE TIGER FEEDS UPON THE ANTELOPE BECAUSE THE LION IS HUNGRY AND THE TIGER IS FAMISHED BUT THE HIGHER LAW OF NATURE OR THE NATURAL LAW WHERE THE LION AND THE LAMB LIE DOWN TOGETHER AND THE TIGER FRISKS WITH THE ANTELOPE." "WHAT IS A CIVIL CONSEQUENCES LET US ASK OURSELVES BY PASSING VERBAL BOOBY TRAPES ? CIVIL CONSEQUENCES UNDOUBTEDLY COVER INFRACTION AND NOT MERELY PROPERTY OR PERSONAL RIGHTS BUT OF CIVIL LIBERTIES MATERIAL DEPRIVATION AND NON PECUNIARY DAMAGES. IN ITS COMPREHENSIVE CONNOTATION, EVERYTHING THAT AFFECTS A CITIZEN IN HIS CIVIL LIFE INFLICTS A CIVIL CONSEQUENCES." #. Heard S/Shri A.J.Patel, Yogesh Ravani, P. J. Vyas, C.B.Dastoor, S.M.Shah, learned advocates for the petitioner in respective petitions and Mr.I.M. Pandya and Mr.L.R.Pujari, learned Astt. Govt Pleaders for the respondents in this group of petitions. In all group of petitions, wherein respondent authority has passed order while exercising powers under Section 65 of the Bombay Tenancy and Agricultural Lands Act, 1948 [hereinafter referred to as `the Act' for short ] are under challenge. Section 65 is relating to assumption of management of lands which remained uncultivated. In all these group of matters, RULE has been issued by this Court and interim relief has been granted by this Court which remains in operation till date. #. The brief facts giving rise to each petition are as under :- 2.1 Special Civil Application No : 10309 of 1995, wherein, the order passed by the Deputy Collector, Choryashi Prant, Surat in Tenancy Revision Case No : 398 of 1990 dated 4th September, 1995 is under challenge. In the present petitioner, the respondent authority has filed reply on 29th June, 2000. 2.2 In Special Civil Application No. 8361 of 1995, wherein order passed by the Deputy Collector, Viramgam Prant in Case No. 255 dated 27th July, 1995. In the present petition, the petitioner has filed further affidavit in support of petition and respondent authority has not filed any reply in the present petition. 2.3 In Special Civil Application No. 3107 of 1999, the order passed by the Deputy Collector in Appeal No : Gandhinagar in case No. 83 / 86 dated 1st August, 1992 is under challenge. The respondent authority has filed affidavit in the present petition. 2.4 In Special Civil Application No. 8039 of 1993, the order passed by the Deputy Collector, Modasa in case No. 7/ 93 dated 23rd June, 1993 and respondent authority has not filed any reply. 2.5 In Special Civil Application No. 1301 of 1994, the order passed by the Deputy Collector in case No. 1 / 1991 dated 29th September, 1993 is under challenge and no reply has been filed by the respondent authorities. 2.6 In Special Civil Application No. 4837 of 1995, the order passed by the Deputy Collector, Dabhoi dated 13th June, 1994 is under challenge and no affidavit in reply has been tendered by the respondent authorities. 2.7 In Special Civil Application No. 9880 of 1994, the order passed by the Deputy Collector, Dholka dated 29th June, 1994 is under challenge and no affidavit in reply has been filed by the respondent authority. 2.8 In Special Civil Application No. 8002 of 1998, the order passed by the Deputy Collector, Himmatnagar dated 20th July, 1998 is under challenge and no affidavit in reply has been filed by the respondent authorities. 2.9 In Special Civil Application No. 1305 of 1994, the order passed by the Deputy Collector, Gandhinagar dated 28th October, 1993 is under challenge and no affidavit in reply has been filed by the respondent authorities. 2.10 In Special Civil Application No. 5840 of 1995, the order passed by the Deputy Collector, Dabhoi dated 21st May, 1995 is under challenge and no affidavit in reply has been filed by the respondent authorities. 2.11 In Special Civil Application No. 10778 of 1995, the order passed by the Deputy Collector, Patan dated 5th April, 1995 is under challenge and no affidavit in reply has been filed by the respondent authorities. #. In all group of petitions, the main question which has been raised by the learned advocates for the respective petitioner is that while exercising powers under Section 65, the authority is duty bound to hold a detailed inquiry and the petitioner is entitled to reasonable opportunity to defend his case and without giving such opportunity by the authority, the order has been passed which adversely affected the right of the petitioners and the orders impugned in this group of petitions are against the principles of natural justice. 3.1 The Deputy Collector -the authority has relied upon the reports submitted by the RTS team and on that basis, the show cause notice has been issued to the petitioners and thereafter considering the material which was received from the RTS team, the Deputy Collector has proceeded in the matter in a manner has been issued to the petitioners calling upon to submit reply or any evidence from the petitioners and thereafter giving opportunity to the petitioner who remained present before the Deputy Collector and thereafter the Deputy Collector has passed the order after considering the evidence on record that the land in question is remained without any cultivation for the period suggested in the show cause notice and therefore considering this fact, the Deputy Collector is passing order under Section 65 because the land in question remained without any cultivation for the period specified in the show cause notice and the land in question has been vested with the State Government without any encumbrance upon the land. The procedure normally followed by the Deputy Collector in most of the cases, the reply of show cause notice has been submitted by the petitioner and thereafter remained personally present before the Deputy Collector and pointed out relevant defence by the petitioner but without considering the same, the Deputy Collector in almost cases relying upon the report submitted by the RTS team and passed order against the petitioners under Section 65 of the Tenancy Act. The question which has been raised before this Court that the petitioners are land owners cultivating the land in question since many years. The respondent authority has powers of assumption of management of the land which remained uncultivated or the full and efficient use of the land has not been made for the purpose of agriculture, through the default of the holder or any other cause whatsoever not beyond his control, the State Government may after making such inquiry as it thinks fit, declare that the management of such land shall be assumed. The declaration so made shall be conclusive. Therefore, considering the relevant provisions, the State Government has power in case if it ultimately found from the record that the land has remained uncultivated or full and efficient use of the land has not been made for the purpose of agriculture on the ground not beyond his control then, the State Government after making such inquiry as it thinks fit declare that the management of such land shall be assumed. Therefore, the question which is arising is that in such inquiry what are the normal procedure or safeguards are necessary while determining the issue in question while passing any adverse order against the land holder. In light of the said provision, the fact of Special Civil Application No. 8361 of 1995, wherein the Deputy Collector, Viramgam has passed order under Section 65 of the Tenancy Act is required to be examined. In the present case,the RTS team has submitted the report in the Month of May, 1993 to the authority pointing out the fact that the land in question remained uncultivated for the period from 1984-85 to 1991-92. After receiving the report from the RTS team, a show cause notice dated 1st July, 1994 has been issued by the authority to the petitioners. In pursuance of the said show cause notice, hearing was fixed by the authority and also calling the petitioners to produce any documents and to submit the written submission against the said show cause notice. The petitioners before the authority has raised certain question that RTS team has no power to hold any inquiry or to examine the fact that whether the land in question which has been cultivated or not during the said period. The Second contention raised before the authority that a copy of the report of the RTS team and relying on the same, a show cause notice is came to be issued, has not been given to the petitioners along with show cause notice and no documents has been given to the petitioners and no documents have been given to the petitioners which were relied by the RTS team and subsequently, the same has been relied by the Deputy Collector. The third contention which has been raised before the authority that breach of condition which was interpreted by the RTS team is not proper and whatever materials which were collected by the RTS team to prove the fact that the land in question remained uncultivated during this period so that the material which has been recovered under the provisions of the Bombay Land Revenue Code that cannot be considered to be conclusive proof of the evidence. The contentions which have been raised by the petitioner before the authority, were rejected by the authority only on the ground that they are not required to be accepted but no reasons in support of its conclusion has been given. The Deputy Collector has relied upon mainly on the report of RTS team and a copy of the Panipatrak wherein it was noted that the land in question remained without cultivation for the said period. The Deputy Collector has also considered that the petitioners have not produced any reliable evidence to the effect that the land in question was not remained without cultivation. Therefore, mainly, the Deputy Collector in almost all the cases relied upon the copy of the Panipatrak wherein it has been noted that the land in question remained PADTAR without cultivation. Therefore, considering the said evidence, the authority came to the conclusion that it amounts to breach of condition and therefore, the land in question is required to be assumed and the management of the land which remained uncultivated shall be assumed with the State Government. The petitioner in the present case has filed affidavit in support of their case, wherein it has been pointed out that the land in question had remained uncultivated and on that basis, the order came to be passed by the authority but now the land was being cultivated even on the date of which the impugned order was passed and even in village form No. 7 / 12, entry regarding crops grown in the land for all these years have also been shown in the said revenue record. The bare perusal of the said revenue record would clearly reveal that Juwar and Millet crops were and are being taken from the land in question. It is also contended in the said additional affidavit by the petitioner that Section 65 of the Tenancy Act can be pressed into service only if the circumstances indicated are found to be proved. It is also necessary to consider the position of the land as on the date of passing the order by the Deputy Collector and even subsequent events can be taken into consideration for the purpose of deciding the question as to whether the management of such land should be taken with the Government or not ? The petitioner has also produced the copies of the village Patrak of 7 / 12 wherein some of the entries were shown to the effect that crops of Juwar and millet have been cultivated. 3.2 In SPECIAL CIVIL APPLICATION NO : 10309 OF 1995, the proceeding has been initiated on the basis of the report of RTS team dated 23rd August, 1990 and on the basis, a show cause notice dated 16th October, 1993 has been served to the petitioner and thereafter, the petitioner had remained personally present and pointed out that the land in question are situated near the land where some construction of the society has been carried out and because of that there was no security of crops and the Town Planning Scheme has been implemented. Therefore, it is not possible for the petitioner to cultivate the land in question as well as there was vehicular traffic on the land in question therefore, it is impossible to cultivate the land in question. After considering the said reply, the Deputy Collector, Choryashi Prant, Surat has only relied upon the report of the RTS team Panchnama and copy of the village form 7/12 and come to the conclusion that the land in question remained without cultivation. It is required to be noted that the copy of the Panchnama, report of the RTS team and material which were considered against the petitioner have not been communicated and served to the petitioner and no documents have been supplied by the Deputy Collector to the petitioner. No one was examined before the Deputy Collector to prove these evidence which have been relied on by the Deputy Collector and without giving any opportunity except hearing, the Deputy Collector has passed the order against the petitioner. In the present petition, reply has been submitted by the Deputy Collector and pointed out that said land in question was found as non cultivated land by the RTS team No. 8 during their visit of village Umra and therefore by letter dated 23-8-1990 proposal was made to initiate proceedings under Section 65 of the Tenancy Act. The Deputy Collector has further submitted in his reply that after considering factual aspect and representation made by the petitioner personally, it was found that land in dispute were found padtar land from the year 1986-87 and considering the village Form No. 7/12, no agricultural activities are carried out on the said land and therefore there was breach of provisions of Section 65 of the Tenancy Act and as a result, the order has been passed. 3.3 In SPECIAL CIVIL APPLICATION NO : 3107 OF 1999, the proceedings have been initiated on the basis of the RTS report and a show cause notice was served to the petitioner. In the hearing before the Deputy Collector, Gandhinagar, the Talati-cum-Mantri of Motera had remained present. In the said order, the Deputy Mamlatdar has relied upon Pani Patrak and come to the conclusion that the land remained barren and therefore the order has been passed against the petitioner. But before the Deputy Collector, no one was examined to prove the documents which were relied upon by the Deputy Collector. No copy of such documents were given to the petitioners which were relied by the Deputy Collector but only a show cause notice on the basis of the report of RTS team and personal hearing was given except that no effective hearing was given by the Deputy Collector and order has been passed against the petitioner. In the present case, the petitioner had produced village form No. 7/ 12 wherein also, the corps of millet was shown and mentioned to have been cultivated on the land in question. Whereas in the reply filed by the Prant Officer, Gandhinagar aginst this petition, it has been stated that before the Deputy Collector, Gandhinagar, deposition of Talati was taken and it was found that the land remained uncultivated and therefore, the order has been passed against the petitioner inspite of the fact that notice was sent to the petitioner and the same was not received by the petitioner. 3.4 In SPECIAL CIVIL APPLICATION NO : 4837 OF 1995, the order has been passed by the Deputy Collector, Dabhoi on the basis of the report submitted by the RTS team and considering the village record Form No. 7/12 in respect of the land in question and therefore, show cause notice was issued to the petitioner. Panchnama was recorded on 17th May, 1993 wherein it was found that the land remained without cultivation and on that basis, the order has been passed by the Deputy Collector, Dabhoi. The contention of the petitioner in the present petition that the Talati cum Mantri has prepared report visiting the land in question and no reasonable opportunity of hearing was afforded to the petitioner and exparte order has been passed by the Deputy Collector and no notice has been served to the petitioner and the land in question remained in cultivation by the petitioner. However, it is pointed out that the land has been given to the society and necessary permission was obtained by the petitioner from the municipality. It is also the contention raised that the lands in question belongs to the old tenure and therefore, Section 65 is not applicable to the facts of the present case. The petitioner has also challenged the order in appeal but the Collector, Vadodara has decided that the powers have been exercised under Section 65 which are powers of the State Government and therefore, no appeal is maintainable but such orders can be challenged before this Court. 3.5 In SPECIAL CIVIL APPLICATION NO : 1301 OF 1994 wherein the Deputy Collector, Baroda has passed the order after receiving reports from the RTS team. A show cause notice was served to the petitioner and hearing was fixed on 29th October, 1991. The report of the RTS team dated 17th July, 1993 and personal verification of the land in question was carried out on 28th July, 1993 and Panchnama was prepared on 29th August, 1992 wherein, it was found that the land in question is of the nature of Kotar and Khada and therefore, cultivation could not be possible since last 18 years and the order has been passed by the Deputy Collector, Baroda against the petitioner. The petitioner has produced on record the village Form No. 7/12 wherein cultivation for some of the years have been pointed out and the land in question being the Kotar and Khada and therefore explanation has been submitted by the petitioner that cultivation could not be possible. However, according to the petitioner after the land in question has been developed by undertaking some filling works on the land, the crop of Juwar / millet has been cultivated by the petitioner and land in question is declared under the open spera zone and for that, certificate from the Vadodara Urban Development Authority has relied upon and the same was produced by the petitioner and the Deputy Collector has relied upon report of the RTS team and Panchnama and passed the order against the petitioner. 3.6 In respect of SPECIAL CIVIL APPLICATION NO : 8039 OF 1993, the order has been passed by the Deputy Collector, Modasa, a show cause notice was served upon the petitioner and hearing was fixed. In the hearing the Talati cum Mantri was examined along with the record which was produced before the Deputy Collector and considering the evidence of the Talati-cum-Mantri and record of the Pani Patrak for the years in question, the Deputy Collector has come to the conclusion relying upon the personal visit of the RTS team dated 16th June, 1993 and ultimately passed order against the petitioner and the Deputy Collector has not believed the defence of the petitioners. 3.7 So far as SPECIAL CIVIL APPLICATION No. 9880 of 1994 is concerned, the Deputy Collector, Dholaka has passed order in the similar manner relying on the report of the RTS team dated 15th April, 1993 and show cause notice dated 7th June, 1993 was served to the petitioner and thereafter, the petitioner has given written reply and pointed out that each year land in question has been cultivated by the petitioner but because on the adjoining land, some of the societies are situated and looking to the fact that cultivation is found to be failure every year and therefore each year cultivation could not be possible. Therefore,the Deputy Collector as relied upon the evidence of Circle Inspector, Dholka and relied upon the village Form No. 7 / 12 and ultimately passed the order against the petitioner. 3.8 In SPECIAL CIVIL APPLICATION NO. 8002 of 1998, the facts of the petition is that the petitioner owns and possesses land bearing Survey No. 5 part admeasuring acre 3-15 gunthas of village Motipura, Taluka Himmatnagar of District Sabarkantha. The petitioner has been trying to cultivate the said land since the time he came into possession of the aid land but because the land is uneven and contains lot of pebbles and ravines which render the land uncultiavable. Notwithstanding the aforesaid condition of the land of the petitioner, he tried to cultivate the land and make it cultivable. According to the petitioner, surrounding land have already been permitted to be converted into Non Agricultural use and therefore, the cultivation which the petitioner tried to do on the land, was ravaged by stray cattle and the crops