SCA/10431/1994 1/23 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10431 of 1994 For Approval and Signature: HONOURABLE MS.JUSTICE H.N.DEVANI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? NO 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, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= DAHYABHAI JIVANBHAI PATEL - Petitioner(s) Versus STATE OF GUJARAT & 4 & 1 - Respondent(s) ========================================================= Appearance : MR PJ VYAS for Petitioner MS REETA CHANDARANA, AGP for Respondent : 1 MR BJ JADEJA for Respondent(s) : 2 - 5. ========================================================= CORAM : HONOURABLE MS.JUSTICE H.N.DEVANI Date : 14/08/2006 ORAL JUDGMENT 1. The issue involved in the present writ petition pertains to re-grant of lands admeasuring 8 Hectares, 86 Ares and 27 sq.mts. of Block SCA/10431/1994 2/23 JUDGMENT No.837 of village Nogama, Taluka Mandvi, District Surat (herein after referred to as the subject lands) under the policy of the State Government, prevailing at the relevant time. 2. The learned Assistant Government Pleader seeks leave to place on record the following documents: (i) Government of Gujarat, Revenue Department, Circular, dated 1st February, 1972 which makes provision for disposal of lands that have been vested in the State Government for recovery of Government dues under Rule 129(4) of the Gujarat Land Revenue Rules, 1972 (the Rules); (ii) Government Resolution dated 18th November, 1979 which makes provision for disposal of lands vested in the State Government for recovery of Government dues under Rule 129(4) of the Rules; (iii) Order dated 11th October, 1982 whereby the subject lands were given to Shri Jivanbhai Lalbhai (deceased) on a yearly basis. The aforesaid documents are relevant for the SCA/10431/1994 3/23 JUDGMENT purpose of adjudicating the controversy involved in the present petition. Hence, in the interest of justice, leave is granted. The aforesaid documents are taken on the record of this writ petition. 3. The facts of the case are that the subject lands had been granted to one Shri Jivanbhai Lalbhai (father of the petitioner and respondents No.2 to 5) under the provisions of section 32G read with section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948, and he, accordingly, held the same as owner thereof. During his lifetime, Shri Jivanbhai had encumbered the subject lands for the purpose of availing loan from the Gujarat Land Mortgage Bank (the Bank). As Shri Jivanbhai failed to pay the outstanding dues of the Bank, the subject lands were put up for auction under the provisions of Rule 129 of the Rules. Sub- rule (4) of Rule 129 of the Rules provides that where at any sale held under the provisions of Chapter XVIII, there is no bidder or the bids made are inadequate or nominal, it shall be lawful for the Collector to authorise any of his subordinates to purchase such property on behalf of the State Government for such bid as the subordinate may make. It appears that there was no bidder in the auction so held, hence the Mamlatdar purchased the subject lands on behalf of the State Government under the provisions of Rule 129 (4) of the Rules and accordingly, the SCA/10431/1994 4/23 JUDGMENT lands stood vested in the State Government by an order dated 29th/30th April, 1981. Corresponding entry was also made in the Revenue Record vide Mutation entry No.2484 dated 30th April, 1981. 4. It appears that under the then prevalent policy of the State Government as contained in the aforesaid Government Circular dated 1st February 1972, the debtor was entitled to re- grant of lands vested in the State Government. As per the provisions of Government Resolution dated 18th April, 1951 if the debtor, within a period of 12 years from the date of the auction requests for re-grant of such lands, then, if he is willing to pay the amount prescribed thereunder he is entitled to re-grant of the lands. By Government Resolution dated 18th November, 1978 the rate of interest and the period for which interest was to be recovered as prescribed under the aforesaid Circular, was amended. Though the aforesaid order dated 29th/30th April, 1981 has not been placed on record, it appears that the conditions prescribed under the aforesaid Circular and Government Resolution form part of the said order. 5. It appears that under the aforesaid policy of the State Government, the said Shri Jivanbhai was given the lands on a yearly basis and the aforesaid Order dated 11th April, 1982 appears SCA/10431/1994 5/23 JUDGMENT to be one such order granting lands on a yearly basis (ek-sali basis). The said order records that as the original landholder is entitled to re-grant of lands vested in the State Government within a period of 12 years upon payment of the prescribed amount, it has been decided to give the lands to the landholder for cultivating the same on a yearly basis. Accordingly, the said Shri Jivanbhai continued to hold the subject lands on a yearly basis and upon his death the petitioner and the respondents No.2 to 5 held the subject lands on the same conditions and their names were entered in the Revenue Record as heirs and legal representatives of the deceased Jivanbhai vide mutation entry No.2716 dated 10th March, 1989. 6. In the light of the fact that under the aforesaid policy of the State Government the original landholder was entitled to re-grant of the subject lands upon payment of the amount prescribed under the said policy, the petitioner Dahyabhai Jivanbhai Patel, being an heir of the original landholder, made an application dated 26th August, 1991, to the Collector, Surat, expressing willingness to pay the prescribed amount and requested that the subject lands be re-granted to him on a permanent basis. It is the case of the petitioner that in pursuance of the said application, the Collector caused an inquiry to SCA/10431/1994 6/23 JUDGMENT be made and that during the course of inquiry the respondents No.2 to 5 did not express willingness to pay the prescribed amount. Accordingly, a report to the aforesaid effect was submitted to the Collector, by the concerned Mamlatdar. By a letter dated 29th July, 1992 of the Collector, Surat, the petitioner was called upon to pay up the amount stated in the said letter within a period of 21 days thereof. The petitioner, accordingly, deposited the amount specified in the said letter, and produced the challan as proof of payment before the Collector along with a letter dated 18th August, 1992. By an order dated 17th September, 1992 the Collector, Surat, granted the subject lands to the petitioner on a permanent basis. 7. Being aggrieved by the aforesaid order dated 17th September, 1992 the respondents No.2 to 5 carried the matter in revision before the Secretary, Revenue Department (Appeals), respondent No.1 herein (hereinafter referred to as the Revisional Authority) being Revision Application No.1 of 1992. By an order dated 21st August, 1992 the revision application was allowed and the matter was remanded to the Collector for deciding the same afresh after giving the respondents No.2 to 5 an opportunity of hearing. 8. It is the case of the petitioner that in the SCA/10431/1994 7/23 JUDGMENT remand proceeding, the Collector heard the petitioner and the respondents No.2 to 5. However, the said respondents did not consent to pay the prescribed amount. Therefore, the request of the respondents was rejected and by an order dated 31st December, 1993, the Collector restored his earlier order dated 17th September, 1992 and ordered that the subject lands be granted to the petitioner on a permanent basis. 9. The aforesaid order dated 31st December, 1993 made by the Collector, Surat was challenged by the respondents No.2 to 5 by way of revision before the respondent No.1. By the impugned order dated 23rd June, 1994, the Revision Application was allowed and the order dated 31st December, 1993 of the Collector, Surat was quashed and set aside, giving rise to the present petition. 10. Heard Mr. P.J. Vyas learned Advocate for the petitioner, Mr. B.J. Jadeja learned Advocate for the respondents No.2 to 5 and Mrs. Reeta Chandarana learned Assistant Government Pleader for the respondents No.1 and 6. 11. Mr. P.J. Vyas learned Advocate for the petitioner, assailed the impugned order of the Revisional Authority. It was argued that the order of the Revisional Authority was not only illegal and against justice and equity but was SCA/10431/1994 8/23 JUDGMENT also perverse. It was submitted that the Revisional Authority had recorded a finding that the names of the respondents No.2 to 5 have been entered in the Revenue Record as heirs of the deceased Jivanbhai in respect of the subject lands, hence, all the heirs have a right in the subject lands. It was submitted that the said finding was not only erroneous, but was perverse inasmuch as the Revisional Authority has failed to appreciate that once the subject lands were entered under Government head in the year 1981, the name of deceased Jivanbhai stood deleted by operation of law. Therefore, upon the death of Shri Jivanbhai on 4th April, 1983, the question of entering the names of his heirs in the Revenue Record did not arise at all. 12. It was submitted that before the Collector, the respondents No.2 to 5 had not given their consent to pay the prescribed amount for re- grant of the subject lands. It was in these circumstances, that the Collector has made the order granting the subject-lands in favour of the petitioner. Therefore, the finding recorded by the Revisional Authority that the lands could be granted in favour of the petitioner only if the respondents No.2 to 5 relinquish their right in the said lands is perverse. 13. It was next contended that the finding recorded by the Revisional Authority that upon re-grant SCA/10431/1994 9/23 JUDGMENT of the subject lands in favour of the petitioner, the respondents No.2 to 5 are ipso facto entitled to a share in the property despite their having refused to pay their share of the prescribed amount, tantamounts to depriving the petitioner of the subject lands. It was pointed out that upon payment of the prescribed amount, the petitioner had been put in possession of the subject lands and equity had accrued in his favour, hence, the same cannot be taken away by the impugned order. 14. Attention was drawn to the fact that while setting aside the order of the Collector, the Revisional Authority had failed to pass any consequential order, either of remand or issuing direction to the parties, to submit that the impugned order suffered from yet another infirmity. 15. Last but not least, it was vehemently contended that till date, the respondents No.2 to 5 have not made any application for re-grant of the subject lands to the Collector, Surat. It was submitted that in the absence of any such application, there was no question of re- granting the subject lands to the said respondents. Besides, now that the period of twelve years from the date of the auction has elapsed, the time limit for making any such application has also expired. Hence, the respondents No.2 to 5 are not entitled to the SCA/10431/1994 10/23 JUDGMENT re-grant of the subject lands in any manner whatsoever. 16. Mr. B.J. Jadeja, learned Advocate for the respondents No.2 to 5, resisted the petition. It was submitted that the Revisional Authority was fully justified in setting aside the order dated 31st December, 1993 passed by the Collector, Surat. It was urged that the respondents No.2 to 5 being heirs and legal representatives of the deceased Jivanbhai had a vested right to be re-granted the subject lands subject to payment of the prescribed amount within a period of twelve years from the date of the auction. It was pointed out that the auction took place on 29th April, 1981, hence in terms of the order dated 29th/30th April, 1981, it was open to the respondents No.2 to 5 to exercise their right of re-grant by paying the prescribed amount till the expiry of the period of 12 years from the date of the auction, i.e., till 30th April, 1993. It was contended that the rights of the respondents No.2 to 5 to re-grant of the subject lands had been preempted by order dated 17th September, 1992 passed by the Collector, Surat, whereby he had re-granted the whole of the subject lands in favour of the petitioner before the expiry of the period of 12 years from the date of auction. It was submitted that the petitioner being an heir of the deceased Jivanbhai, had a right to re-grant of the subject lands, but only to the extent of SCA/10431/1994 11/23 JUDGMENT his one-fifth share as an heir of the deceased. 17. Supporting the impugned order of the Revisional Authority, it was submitted that the Revisional Authority was justified in holding that even if the petitioner alone had paid the prescribed amount, the rights in the subject lands would also enure in favour of the respondents No.2 to 5. It was submitted that the right of petitioner to re-grant of the subject lands being limited to his one-fifth share, the whole of the lands could not have been re-granted to him in any eventuality. 18. In response to the contention that the respondents No.2 to 5 had not made any application for re-grant of the subject lands, it was pointed out that once the whole of the subject-lands had been granted in favour of the petitioner vide the order dated 17th September, 1992, there was no point in making any application before the Collector, despite the fact that the period of 12 years from the date of the auction had not expired. Therefore, the respondents No.2 to 5 had challenged the said order by way of revision before the State Government, wherein they had expressed their willingness to pay the required amount and prayed that to the extent of their respective shares, the subject lands be granted in their favour. It was submitted that the Revision Application was made before the expiry of the SCA/10431/1994 12/23 JUDGMENT period of 12 years, hence, the contention that the respondents No.2 to 5 had not made any application for re-grant of the subject lands is wholly misconceived and deserves to be rejected. 19. The learned Assistant Government Pleader supported the reasoning adopted by the Revisional Authority. 20. From the facts noted above, it is apparent that under the policy of the State Government, the original landholder, (in the present case the deceased Shri Jivanbhai) was entitled to re- grant of the lands subject lands upon payment of the prescribed amount within a period of twelve years from the date of the auction. The date of auction being 29th April, 1981 the time limit for payment of prescribed amount would be up till 28th April 1993. Therefore, till 28th April, 1993 the heirs of Shri Jivanbhai were entitled to the re-grant of the subject lands on condition of payment of the prescribed amount within the said period. Admittedly, on the date when the petitioner applied for re- grant as well as on the date when the subject lands were initially re-granted in his favour, the said period of 12 years had not expired. Therefore, when the order of re-grant was made respondents No.2 to 5 had a subsisting right to the re-grant of the subject lands to the extent of their respective shares in the subject SCA/10431/1994 13/23 JUDGMENT lands. Merely because no application had been made before the date of the said order, or because purportedly the respondents No.2 to 5 did not respond when called upon by the Circle Inspector, it cannot be presumed that the respondents No.2 to 5 had given up their right to re-grant. In the circumstances, the learned Advocate for the respondents is justified in contending that the right of the respondents No.2 to 5 for re-grant of the subject lands had been taken away by the aforesaid order whereby the entire lands had been granted in favour of the petitioner before the expiry of the stipulated period during which they could have exercised their right of re-grant. Thus, once the order re-granting the subject lands in favour of the petitioner had been made, making an application for re-grant of the very same lands to the Collector would have been an exercise in futility. Therefore, the respondents NO.2 to 5 were perfectly justified in challenging the said order of the Collector by way of revision and at the same time seeking re-grant of the said lands expressing willingness to pay the prescribed amount. 21. It may be pertinent to note that the right to re-grant of land is provided under the policy of the State Government noted hereinabove. The said policy does not prescribe any procedure for re-grant of land. All that it says it that if the landholder pays the prescribed amount SCA/10431/1994 14/23 JUDGMENT before the stipulated period he shall be entitled to re-grant of the lands. In absence of any prescribed procedure, the request made in the Revision Application, which was within the period of 12 years from the date of auction, can very well be said to be an application for re-grant of land, which was the best the respondents No.2 to 5 could do, in the light of the facts narrated hereinabove. Therefore, the contention that the respondents No.2 to 5 having not made any application before the Collector within the stipulated period are not entitled to re-grant of the subject lands, deserves to be rejected. 22. It may be pertinent to note that after the subject lands had vested in the State Government the same had been given on yearly lease to Jivanbhai Patel; and upon his death to his heirs who continued to occupy the same till the date the said lands were re-granted in favour of the petitioner. It appears that pursuant to the subject-lands being re-granted to the petitioner, the respondents No.2 to 5 were dispossessed of the lands occupied by them and the same were handed over to the petitioner. Thus, despite the fact that the petitioner had a right to re-grant of one-fifth of the subject lands, upon his paying the whole of the prescribed amount, the whole of the subject lands had been re-granted to him thereby depriving the respondents No.2 to 5 of SCA/10431/1994 15/23 JUDGMENT their right to cultivate the said lands on a yearly basis for a period of twelve years as well as depriving them of their right to re- grant of the subject lands within the stipulated period. Hence, before depriving the respondents No.2 to 5 of their rights over the subject-lands it was incumbent upon the Collector to give them sufficient opportunity of hearing. In any case, their right to re- grant of land could not have been preempted before the expiry of the stipulated period of 12 years from the date of auction, merely because the petitioner had shown willingness to pay the entire amount. 23. While it is true that the petitioner had only one-fifth share in the subject lands and hence could have exercised his right to re-grant only qua his one-fifth share, it is also true that under the policy there could not have been any piece-meal payment of the prescribed amount. Under the policy of re-grant, the land could be re-granted only upon payment of the following amounts: entire principal amount of loan, interest at the rate of 8%, the expenditure incurred by the Government towards the auction (5% of the principal amount), penalty equivalent to 25% of the principal amount and loss caused to the Government towards revenue assessment on account of the lands being vested in the State Government. The policy does not envisage piece-meal payment for re-grant of SCA/10431/1994 16/23 JUDGMENT lands to the extent of the share of each co- owner. The landholder was entitled to re-grant of the lands only upon payment of the entire prescribed amount. Hence, even to exercise his right to re-grant of one-fifth of the subject lands the petitioner would have been required to pay the entire prescribed amount as the policy does not envisage re-grant of part of the lands upon payment of part of the prescribed amount. On the other hand, upon payment of the entire prescribed amount the Government also could not grant only part of the lands but was bound to re-grant the entire lands, however, before re-granting the entire lands to the petitioner, it was incumbent upon the Collector to issue notices to the other co- owners, more so because the period or 12 years was not over, and the respondents No.2 to 5 had a subsisting right to re-grant of the subject lands subject to the payment of the stipulated amount. The Collector ought to have given the respondents No.2 to 5 an opportunity to be heard as well as a chance to exercise their right to re-grant subject to payment of the prescribed amount within the stipulated time i.e., within 12 years from the date of the auction. Hence, the contention raised on behalf of the respondents that in any event, the petitioner could have been granted only one fifth of the lands does not merit acceptance. If the respondents No.2 to 5 failed to exercise their right within the stipulated period of 12 SCA/10431/1994 17/23 JUDGMENT years from the date of auction, it was open to the Collector to re-grant the subject lands to the petitioner or to those of the heirs of the deceased Jivanbhai who came forward to exercise their rights within the said period. In the event the respondents No.2 to 5 had not chosen to exercise their right to re-grant, the subject lands could certainly have been granted to the petitioner in the light of the fact that the policy does not envisage piece-meal payment and consequently, upon payment of the entire prescribed amount, the whole of the subject– lands could have been re-granted to the petitioner and not merely the petitioner’s one- fifth share. The infirmity in the action of the Collector is in re-granting the entire lands in favour of the petitioner before the prescribed period was over, that too without giving the respondents No.2 to 5 an opportunity of hearing. 24. The contention raised on behalf of the respondents No.2 to 5 that the report submitted by the Mamlatdar to the effect that the respondents No.2 to 5 had not given their consent to pay the prescribed amount was prior in point of time to the Revision Application made by the respondents No.2 to 5 which had culminated into the order of remand dated 28th January, 1993, hence, when the Revisional Authority after considering the said fact had remanded the matter to the Collector for taking SCA/10431/1994 18/23 JUDGMENT a fresh decision, the Collector could not have relied upon the said report to reject the application of the respondents No.2 to 5, merits acceptance. In the remand proceeding it was the case of the respondents No.2 to 5 that they were seeking re-grant of the subject lands to the extent of their shares in the same and that were ready and willing to pay the amount due and payable towards re-grant of the said lands. However, as can be seen from the order dated 31st December, 1993 passed by the Collector, Surat, he has rejected the request of the respondents No.2 to 5 on the basis of the same material on which the earlier order was passed. The Collector has observed that while processing the application made by the petitioner, inquiry had been made and the consent of the respondents No.2 to 5 as regards their willingness to jointly pay the prescribed amount was