SCA/27521/2007 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 27521 of 2007 With SPECIAL CIVIL APPLICATION No. 4059 of 2008 With SPECIAL CIVIL APPLICATION No. 19875 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ============================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ============================================= STATE OF GUJARAT - Petitioner(s) Versus HARIJAN JIVABHAI Jashabhai - Respondent(s) ============================================= Appearance : MR KAMAL B. TRIVEDI ADVOCATE GENERAL WITH MS SANGITA VISHEN ASST GOVERNMENT PLEADER for Petitioner(s) – STATE OF GUJARAT in SCA No.27521 of 2007 and SCA No.4059 of 2008 MR KS NANAVATI SR ADVOCATE WITH MR.KUNAL NANAVATI for Reliance Jamnagar Infrastructure limited. MR JS YADAV for private Respondent(s) : 1, MR SUDHIR SHAH for Respondent(s) : 1, ============================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 04/08/2008 ORAL JUDGMENT SCA/27521/2007 2/12 JUDGMENT Rule. In Special Civil Application No.27521 of 2007 and Special Civil Application No.4059 of 2008, learned advocate Mr.J.S.Yadav waives service of rule on behalf of the sole respondent. In Special Civil Application No.19875 of 2007, learned AGP Ms.Sangita Vishen waives service of rule on behalf on behalf of the respondent No.1 & 2 and learned advocate Mr.J.S.Yadav for respondent No.3. At the joint request of the learned advocates appearing for the parties, all three petitions have been taken up for final hearing today. These petitions arise of the common proceedings, therefore, they have been heard together and are being disposed of by this common order. Special Civil Application No.27521 of 2007, is filed by the State Government challenging an order dated 19.05.2006 passed by the Joint Secretary (Appeals), Revenue Department, Government of Gujarat. In Special Civil Application No.4059 of 2008 also, the State Government is petitioner challenging an order dated 07.08.2007 passed by the Joint Secretary (Appeals), Revenue Department, Government of Gujarat. In Special Civil Application No.19875 of 2007, the petitioner has challenged two orders dated 19.06.2007 and 19.5.2006 passed by the Joint Secretary (Appeals), Revenue Department, Government of Gujarat. The principal facts can be noted from Special Civil Application No. 27521 of 2007. It appears that the land bearing Survey No.89 admeasuring Acre 4 SCA/27521/2007 3/12 JUDGMENT – 29 Gunthas belong to the Government of village Lalpur, Taluka - Navagam, District – Jamnagar was granted by the Government for cultivation on certain terms and conditions to one Jivabhai Jagabhai in the year 1962. In the year 1983, the Deputy Collector, Jamnagar initiated the proceedings for cancellation of grant for breach of certain conditions. Such proceedings were initiated not only against said Jivabhai Jagabhai but number of other persons who were similarly granted the government lands for cultivation. By an order dated 30.05.1983, the Deputy Collector cancelled the grant and ordered that the land shall vest in the Government. In the said order, the Deputy Collector observed that though the notices were served to the grantees, no one had remained present on their behalf. From the record, the Deputy Collector found that since granting of lands, lands have been left fellow and no cultivation had taken place. It was, therefore, observed that the entire purpose of grant had frustrated. The grantees had not taken steps to cultivate the land, nor even bothered to appear before the authority. On these grounds, the Deputy Collector cancelled grant of land made in favour of Jivabhai Jagabhai and ordered confiscation thereof in terms of Section 79-A of the Bombay Land Revenue Code. Many years thereafter in the year 2001, present respondent – Jivabhai Jashabhai filed revision application before the Collector, Jamnagar and also filed application for condonation of delay. The Collector, Jamnagar vide his order dated 10.05.2001 rejected the application on the ground of delay and laches. In the order, he observed that the respondent therein had not been able to show sufficient cause for not preferring the revision within time prescribed. It was observed that for 17 years, he had not taken any steps. The land had vested in the Government. It is difficult to believe that he would not be aware about such developments. Necessary revenue entries have also been made in SCA/27521/2007 4/12 JUDGMENT the records. He could not state as to since when the revenue has been paid by him. The respondent does not reside in Navagam but stays in the village Chela. It was also observed that in the period of 17 years in the mean time, industrial establishments of Reliance and Essar Companies have come up and land prices have increased. Only to take benefit of increase in the land price, the present proceedings have been initiated. It was observed that the land was granted to Jivabhai Jagabhai and if the respondent viz. Jivabhai Jashabhai is in possession, such possession would be wholly unauthorised. On all these grounds, delay condonation application of the present respondent was turned down. His challenge to the Deputy Collector's order thus came to be rejected. Further revision was preferred by the present respondent before the Government and ultimately, Joint Secretary (Appeals), Revenue Department, by his impugned order dated 19.05.2006 set aside the orders passed by the Deputy Collector as well as the Collector and granted land on lease to the present respondent on token charge of Rs.1/- for per year. It is this order which the Government has challenged in this petition. In the order, the Joint Secretary observed interalia that the Deputy Collector erred in confiscating the land. If it was not possible to regrant the land to the original grantee, the same should have been granted on yearly lease basis. He relied upon the Government resolution dated 16.03.1982 for the said purpose. He, eventually, regranted the land to the respondent. To complete the chain of events, it may be noted that the said order passed by the Joint Secretary was sought to be reviewed. However, review was also turned down by order dated 19.06.2007. In Special Civil Application No.4059 of 2008, somewhat similar facts emerge. Here also, the land bearing Survey No.88 of village Lalpur SCA/27521/2007 5/12 JUDGMENT admeasuring Acre 9 – 34 Gunthas was granted for personal cultivation of Jivabhai Jagabhai in the year 1962. The Deputy Collector found that the land was not being put to agricultural use and therefore, cancelled the grant by his order dated 21.12.1972. The respondent herein – Jivabhai Jashabhai challenged the said order before the Collector, Jamnagar. He also sought condonation of delay in filing the proceedings, Collector, Jamnagar by his order dated 10.01.2007 rejected delay condonation application holding that there is unexplained delay of 26 years. This order was carried in further revision by the present respondent before the Joint Secretary (Appeals), Revenue Department. Ultimately, after one round of remand, Joint Secretary by his order dated 07.08.2007 was pleased to set aside the orders passed by the Deputy Collector as well as the Collector and was further pleased to regrant the lands to the present respondent on charging token amount of Rs.1/-. It is this order of the Joint Secretary (Appeals), which the Government has challenged in this petition. In Special Civil Application No. 19875 of 2007 – the petitioner Reliance Jamnagar Infrastructure Limited has also sought to challenge the order passed by the Joint Secretary (Appeals) on 19.06.2007, by which, the land was regranted to Jivabhai Jashabhai. It is the case of the petitioner that the Government has decided to give approval for setting up Special Economic Zone (`SEZ' for short) to the petitioner and for which, the lands around village Lalpur have been agreed to be granted to the petitioner. It is case of the petitioner that the land granted to Jivabhai Jashabhai – respondent No.3 in the petition, falls right in the middle of the total area of the land where the SEZ is envisaged. It is therefore case of the petitioner that the petitioner has locus standi to challenge the orders passed by the Joint Secretary (Appeals). In fact, the petitioner had filed an application before the Joint Secretary when the SCA/27521/2007 6/12 JUDGMENT proceeding was still pending before the said authority. Prayer of the petitioner to be joined as party respondent was turned down by the Joint Secretary (Appeals) by order dated 20.06.2006. The petitioner has also challenged the said order in the present petition. In essence, therefore, challenge of this petitioner is two fold. Firstly, order of the Joint Secretary refusing to join the petitioner as respondent in the revision application of said Jivabhai Jashabhai has bee challenged. Secondly, the principal order by which the land was regranted to Jivabhai Jashabhai by the Joint Secretary (Appeals), is also sought to be questioned. Learned Advocate General Mr.Kamal B. Trivedi appearing of the State Government in Special Civil Application No.27521 of 2007 and Special Civil Application No.4059 of 2008 submitted that the Joint Secretary (Appeals) erred in relying on Government Circular dated 16.03.1982 when such circular was not applicable in the facts of the case, particularly, in view of the subsequent circular dated 03.01.1984. My attention was drawn to the contents of both circulars. It was contended that the entire attempt on part of the original grantee was to take benefit of increased land price. It was contended that power to regrant the land vests in the Collector, the Joint Secretary (Appeals) could not have exercised such powers. At best, proceeding could have been remanded to the Collector for further action. It was contended that there was gross delay in respondent – Jivabhai Jashabhai approaching the Collector against the orders passed by the Deputy Collector and therefore, Collector, Jamnagar rightly turned down both the appeals. SCA/27521/2007 7/12 JUDGMENT It was also submitted that initial grant was in favour of one Jivabhai Jagabhai, whereas the present proceedings are pursued by one Jivabhai Jashabhai. The Joint Secretary (Appeals) should not have entertained the revision application without fully verifying identity of the present respondent. Learned Senior Advocate Mr.K.S.Nanavati for the petitioner in Special Civil Application No.19875 of 2007 submitted that Reliance Jamnagar Infrastructure Ltd. has been granted approval for setting up SEZ in and around area of village Lalpur and the present lands fall right in the middle of the SEZ area. He submitted that there is sufficient material on record to suggest that the petitioner had locus standi to question the orders passed by the Joint Secretary (Appeals). He also submitted that identity of Jivabhai Jashabhai is also doubtful. Originally, the land was granted to Jivabhai Jagabhai and his guardian Kheti Kana was supposed to look after the lands but presently Jivabhai Jashabhai who is agitating the question of grant of land who is not the same person as original grantee. On the other hand, on behalf of Jivabhai Jashabhai, learned advocate Mr.J.S.Yadav opposed all these petitions. He submitted that the land was granted for personal cultivation of said respondent and substantial land was brought under the cultivation. The Joint Secretary (Appeals) therefore after examining all the aspects of the matter had found it appropriate to regrant the land. He therefore submitted that this Court in exercise of the jurisdiction under Article 226 of the Constitution should not interfere with such order. SCA/27521/2007 8/12 JUDGMENT He also submitted that Reliance Jamnagar Infrastructure Ltd., has no locus standi to maintain the petition and in essence, the dispute is between the Jivabhai Jashabhai and the State Government. He also submitted that the Collector cannot challenge the orders passed by the Joint Secretary (Appeals). He also submitted that original grant was in favour of Jivabhai Jashabhai, and it was only a typographical error to grant the same in favour of Jivabhai Jagabhai and therefore, the Joint Secretary (Appeals) committed no error in regranting the land to Jivabhai Jashabhai. Having, thus, heard learned advocates appearing for the parties and first focusing attention on the petitions filed by the State Government, I find that the lands were originally granted to one Jivabhai Jagabhai. Even keeping aside the question of identity of the original grantee, it emerges from the record that the Deputy Collector in the first case in the year 1982 and in the second case in the year 1972 had recalled the grant on the ground that the land was not cultivated and ever since grant was made by the Government, the same was left fellow. Thus, as per the finding of the Deputy Collector, right from 1962, when the grants were made final till 1982 and 1972 respectively when such grants were cancelled, lands were not put under cultivation. It was on these grounds, both the grants were cancelled and the lands were confiscated and ordered to vest in the Government. These orders were not challenged by the original grantee for years together. In Special Civil Application No.27521 of 2007 for the first time after 16 years after the order passed by the Deputy Collector, the respondent approached the Collector. In Special Civil Application SCA/27521/2007 9/12 JUDGMENT No.4059 of 2008 the Deputy Collector's order which was passed in the year 1972 was challenged after almost 26 years. Both these proceedings came to be decided by the Collector against the respondent primarily on the ground of delay and laches. Collector, Jamnagar found that sufficient explanation was not rendered for filing proceeding after such inordinate delay. Additionally, the Collector also found that it is not possible to believe that the respondents were not aware about the orders passed by the Deputy Collector since in the revenue records, corresponding entries were already made. These orders were disturbed by the Joint Secretary (Appeals) and the lands were regranted to the respondents. In doing so, heavy reliance was placed on Government Circular dated 16.03.1982. However, subsequent circular dated 03.01.1984 was totally lost sight of. In the circular dated 03.01.1984 it was provided interalia by the Government that instances had come to light that lands which are granted for personal cultivation on new and impartible tenure basis, have been regranted after cancellation of grant on the ground of breach of conditions of such grants. In the mean time, land prices have increased manifold. Such regrant was made after seven years. It was stated that such orders should not have been passed and the Government land which has been confiscated should not have been re-granted after a long period when the land prices have gone up. In the present case, very similar scenario would emerge. The Deputy Collector recalled the grant way back in the year 1982 and 1972 respectively. After 16 and 26 years respectively, the respondent approached the Collector and the Collector turned down the challenge holding it to be hopelessly belated. The Joint Secretary (Appeals), however, unmindful of the above noted circumstances, set aside the SCA/27521/2007 10/12 JUDGMENT orders of the Deputy Collector as well as the Collector and ordered regrant of the lands to the respondent. From the order of the Collector, it can be seen that in the meantime, considerable industrial development has taken place in and around the area which would surely push up the land prices astonishingly. The Deputy Collector had observed that the land was kept fellow for the years together. After Deputy Collector recalled grant and confiscated the land, the respondent took no steps to pursue his interest. After several years, he approached the Collector and sought to take benefit of the increased land prices. The Joint Secretary (Appeals) should have realised that the respondent was asking for pound of flesh and his request should not have been lightly considered after inordinate delay. Primarily, on above grounds, I am inclined to interfere with the impugned order passed by the Joint Secretary (Appeals). Though, learned Advocate General may be justified in pointing out that the powers to grant land vest in the Collector and the Joint Secretary should not have passed order of regrant only, for this purpose, I would not have interfered in the writ petition. However, there are other reasons noted above why the orders are required to be set aside. Additionally, I find that there is serious doubt about identity of the original grantee. As noted above, the land was originally granted to Jivabhai Jagabhai. The present respondent who is pursuing the litigation is one Jivabhai Jashabhai. From the record, it appears that there are, in fact, two different persons by the name Jivabhai Jagabhai and Jivabhai Jashabhai. The possibility that original grant was in favour of Jivabhai Jagabhai and that this is not a case of typographical error, therefore, cannot be ruled out. In fact, affidavit is filed by Jivabhai Jashabhai produced at page.336 to Special Civil Application No.19875 of 2007 in SCA/27521/2007 11/12 JUDGMENT which, it is clearly stated that Jivabhai Jagabhai and Jivabhai Jashabhai are two separate land account holders. He, thus, admits that there is another person by name Jivabhai Jagabhai. The land was granted to Jivabhai Jagabhai and his guardian Kheti Kana was supposed to look after his interest. The present respondent – Jivabhai Jashabhai is unable to state as to who is Kheti Kana. For want of necessary particulars, it is not possible for me to conclude this issue. However, suffice it to say that without fully verifying this aspect of the matter, the Joint Secretary (Appeals) should not have ordered regrant of the land to Jivabhai Jasabhai. Learned advocate Mr.J.S.Yadav may be justified in stating that the Collector cannot challenge the order of the Joint Secretary (Appeals). However, in the present case, the Government through the Collector has challenged the said orders. It is by now settled by the Hon'ble Apex Court that though the Secretary was exercising the powers under Section 211 of the Bombay Land Revenue Code, was acting on behalf of the Government, it is open for the Government to challenge his decision. A reference in this regard can be made to the decision of the Hon'ble Supreme Court in the case of The Collector, Rajkot and others v. Balabhai Karshanbhai Patel and others rendered in Civil Appeal No.4505 of 2006 (order dated 16.10.2006). With respect to the petition of the Reliance Jamnagar Infrastructure Ltd, however, I find that the said petitioner has no direct locus standi to challenge the orders passed by the Joint Secretary (Appeals). It may be that the Government has in principle approved setting up SEZ in and around the same area. It may be that formal approval is also accorded, however, ultimately, it is for the Government to provide the land for setting up such SEZ. Whether the land in question SCA/27521/2007 12/12 JUDGMENT in fact is that of the ownership of the Government absolutely and exclusively or whether the same has been granted to any individual for cultivation or whether part of the land is of exclusive ownership of a citizen, to my mind, so far as Reliance Jamnagar Infrastructure Ltd is concerned, there would be no difference. Ultimately, the land shall have to be allotted to the said company for setting up SEZ on such terms and conditions as may be decided in that regard. Reliance Jamnagar Infrastructure Ltd. shall have to pay compensation either to the Government or to the land owner or occupants in accordance with law. Only on that count that the company is desirous of setting up SEZ in the area, which covers the land in question, the orders passed by the Joint Secretary (Appeals) does not become challengeable at the hands of the company. The Joint Secretary, therefore committed no error in rejecting the application of Reliance Jamnagar Infrastructure Limited, seeking permission to join as a respondent in the Revision Application of the respondent. In the result, Special Civil Application No.27521 of 2007 and Special Civil Application No.4059 of 2008 filed by the Government are allowed. The impugned orders passed by the Joint Secretary (Appeals) challenged in these petitions are hereby quashed and set aside. Special Civil Application No.19875 of 2007 is, however, rejected. Rule is made absolute to the above extent so far as SCA No.27521 of 2007 and Special Civil Application No.4059 of 2008 are concerned and stands discharged in Special Civil Application No.19875 of 2007. ( Akil Kureshi, J. ) kailash