SCA/9356/2000 1/16 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9356 of 2000 For Approval and Signature: HONOURABLE MR.JUSTICE D.A.MEHTA ========================================================= 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 ? ========================================================= MOHANLAL DHARAMSINHBHAI PATEL & ORS. - Petitioner(s) Versus STATE OF GUJARAT & ORS. - Respondent(s) ========================================================= Appearance : MR HJ NANAVATI for Petitioner(s) : 1 - 5. MS MAITHILI MEHTA, AGP, for Respondent(s) : 1 - 3. MR PJ KANABAR for Respondent(s) : 4 - 5. RULE SERVED for Respondent(s) : 6, ========================================================= CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 17/11/2008 ORAL JUDGMENT 1. The petitioners have preferred this petition under Article 226 of the Constitution SCA/9356/2000 2/16 JUDGMENT of India seeking to quash and set aside order dated 30.3.2000 made by Deputy Secretary (Appeals), Revenue Department, Government of Gujarat, in revision filed by respondent Nos.4 and 5 herein under Section 35 of the Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (“the Act”). 2. The dispute relates to land admeasuring 0.35 Gunthas of Survey No.84/1 and 0.29 Gunthas of Survey No.85/5 situated at Keshod. The case of the petitioners is that by virtue of a registered Sale Deed dated 10.9.1990, the said parcels of land were purchased by the petitioners from original land holder, Shri Khimjibhai Ramjibhai Vanpariya, respondent No.6 herein. While according to respondent Nos.4 and 5, an agreement to sell was executed by respondent No.6 with respondent Nos.4 and 5 and hence, the land could not have been sold to the petitioners by respondent No.6. In relation to the said dispute, respondent Nos.4 and 5 have preferred Special Civil Suit No.175 of 1990 SCA/9356/2000 3/16 JUDGMENT before the Court of Civil Judge, Senior Division, Junagadh. To complete the narration of facts it may be noted that the said Suit having been dismissed by the Trial Court an appeal has been filed before the High Court, and the same is pending,as stated by the learned advocate,Shri Kanabar. 3. It appears that respondent No.6 applied for consolidation of holdings under the provisions of the Act vide application made on 10.8.1990. The said application came to be rejected by Mamlatdar, Keshod, vide order dated 26.11.1990. Respondent No.6 therefore applied afresh for an order of consolidation which came to be granted by the Mamlatdar vide order dated 16.4.1998. Respondent Nos.4 and 5 carried the matter in appeal before Deputy Collector, Junagadh, challenging the order dated 16.4.1998 and succeeded as per order made on 7.9.1998 by Deputy Collector, Veraval. 4. Respondent No.6 carried the matter in further appeal before Collector, Junagadh. Vide SCA/9356/2000 4/16 JUDGMENT order dated 30.1.1999, the Collector allowed the appeal and restored the proceedings to the file of Deputy Collector, Junagadh, to conduct the proceedings afresh under the Act. 5. It appears that in the meantime, petitioners initiated R.T.S. proceedings before Deputy Collector, Veraval. Therefore, proceedings under the Act as well as R.T.S. Proceedings were taken up and the Deputy Collector passed three separate orders. In R.T.S.Appeal Case No.28/1998-1999, vide order dated 23.7.1999, the Deputy Collector quashed the order dated 16.11.1998 made in R.T.S.Case No.3/1998-1999 and directed to make an entry in favour of the petitioners on the basis of registered Sale Deed No.877 dated 10.9.1990. 6. By a separate order dated 13.7.1999, the Deputy Collector held that original land owner, respondent No.6, could not have made application for consolidation of holdings and such an application could have been moved only SCA/9356/2000 5/16 JUDGMENT by the transferees of the land, namely, the purchasers under the registered Sale Deed. Accordingly, the order dated 16.4.1998 bearing No.Land/C/735 made by Mamlatdar, Keshod, was quashed by the Deputy Collector and it was further directed that the Mamlatdar will take a decision in accordance with law upon an application for consolidation of holdings being moved by the petitioners, i.e. the purchasers of the land under the registered Sale Deed. 7. It is also necessary to note that Fragmentation Case No.1 / 1998-1999 before the Deputy Collector, Veraval, was brought about on the basis of an application moved by respondent Nos.4 and 5 before the Collector which was forwarded to the Deputy Collector by the Collector vide letter dated 18.2.1998 resulting in notice dated 25.11.1998 issued by the Deputy Collector. The Deputy Collector noted that as it is, otherwise, no notice had ever been issued for the purposes of declaring any piece of land as a fragment under the Act. The Deputy Collector has referred to the record and SCA/9356/2000 6/16 JUDGMENT specifically recorded a finding that a road passes through Survey No.84/1 as per Town Planning Scheme and because of Government Resolution issued by the Revenue Department on 14.4.1959, the provisions of the Fragmentation Act cannot be made applicable in such circumstances. It is further found that no fragment has taken place by any act of any party and, hence, it would not be proper to declare the same as a fragment under the Act. It was further found that land bearing Survey No.85/5 is a contiguous / adjacent land and hence, in absence of any fragment having come about by virtue of the registered sale in question, the provisions of the Act cannot be made applicable. Therefore, the fragment which has resulted by virtue of passing of the Town Planning road through land bearing Survey No.84/1, cannot be treated as a fragment and a separate number is required to be allotted. It is further found that in the circumstances, it was not possible to interfere in the sale- purchase transaction and, therefore, notice SCA/9356/2000 7/16 JUDGMENT dated 25.11.1998 was withdrawn. 8. Respondent Nos.4 and 5 herein preferred revision under Section 35 of the Act before the revisional authority, respondent No.1 herein. After hearing the parties, the impugned order has been made by the revisional authority whereby the order dated 13.7.1999 made by the Deputy Collector has been quashed. That it is not clear that Survey No.84/1 is being fragmented because of cutting across of road line and for this purpose, there is no evidence, or certified map, order, etc. The Deputy Collector has merely accepted the say of the parties. The revisional authority has further held that there is no evidence that land bearing Survey No.84/1 admeasuring 0.35 Gunthas and land bearing Survey No.85/5 admeasuring 0.29 is not an irrigated parcel of land, considering the same to be non-irrigated land it can be treated as a fragment, sale of a fragment cannot be sanctioned, fine of Rs.250/- is leviable. Finally, it has been held that the possession of the purchasers is liable to be SCA/9356/2000 8/16 JUDGMENT vacated. It is this order which is under challenge. 9. The learned advocate for the petitioners assailed the impugned order made by the revisional authority stating that the finding that the Notification dated 16.11.1990 issued by the Urban Development Department does not refer to Survey Nos.84/1 and 85/5 being included in T.P. Scheme is not correct. It was submitted that the revisional authority has failed to consider that in fact, no notice under the Act regarding there being a fragment was ever issued. That in fact, the matter had come up before Deputy Collector only because respondent Nos.4 and 5 had moved the Collector, who in turn had directed the Deputy Collector to consider whether a fragment has occurred. Therefore, the Deputy Collector had issued a notice dated 25.11.1998 under the Act and finally withdrawn the said notice while passing the order made on 13.7.1999 which is under challenge before revisional authority. It was SCA/9356/2000 9/16 JUDGMENT therefore urged that the findings recorded by the revisional authority are not correct. It was further submitted that finding by the revisional authority that both the pieces of land pertaining to the two survey numbers are not irrigated land, is an incorrect finding. That the same was not even the case of respondent Nos.4 and 5. Similarly, the finding that the two pieces of land are not contiguous or adjacent is also a finding without any evidence. That the revisional authority has failed to appreciate the fact that the civil dispute as to title to the property in question was pending and the said fact had been brushed aside by the revisional authority without correctly appreciating the legal import of the registered Sale Deed made in favour of the petitioners. 10. On behalf of the respondent-authorities, learned Assistant Government Pleader strenuously relied on the order made by the revisional authority and supported the same SCA/9356/2000 10/16 JUDGMENT stating that in absence of any error in the said order, no interference was warranted. Alternatively, it was contended that if the Court came to the conclusion that there was lack of evidence in recording the findings by the revisional authority, the matter could be restored to the file of either the revisional authority or the file of Deputy Collector, as the Court deems fit. 11. The learned advocate appearing on behalf of respondent Nos.4 and 5 referred to the affidavit-in-reply filed by respondent Nos.4 and 5 to submit that the petitioners had not correctly set out the facts in the petition and hence there was confusion on facts. That so far as the order made in R.T.S. proceedings is concerned, the same had attained finality and similarly, the order made in the consolidation proceedings had also attained finality. It was only the order made in relation to fragmentation of the land under the Act that had been challenged before the revisional SCA/9356/2000 11/16 JUDGMENT authority and the findings recorded by the revisional authority were based on the state of evidence that was produced by the petitioners before the Deputy Collector and/ or the revisional authority. It was submitted that in the circumstances, the impugned order did not merit interference and was perfectly justified. It was further submitted that the revisional authority had rightly stated that the proceedings before Civil Court had no bearing on the issue as to whether there was fragmentation of the land or not and the said aspect of the matter, namely, pendency of dispute as to title to the property, could not have any material bearing in these proceedings before the revenue authorities. That in fact, the jurisdiction of the Civil Court in relation to this issue was barred as provided by the Act and therefore any finding recorded by the Civil Court would not bind the revenue authorities in these proceedings. Lastly, it was submitted that if the alternative contention made by the learned Assistant Government Pleader, is SCA/9356/2000 12/16 JUDGMENT accepted, the Court may make an order of restoring the matter to the file of the authority without making any observations which would result in prejudice to respondent Nos.4 and 5. 12. The facts recorded herein-before are not in dispute. 13. As can be seen from the impugned order made by the revisional authority, the revisional authority has proceeded on the footing that there was no evidence to show that Town Planning Scheme is applicable to the survey numbers or that a road was passing through Survey No.84/1 resulting in a fragment. It is further stated that though the revision applicants have stated that land admeasuring 0.04 Gunthas is left with the original land holder resulting in more fragments, there is no evidence for the said submission. The finding by the revisional authority in relation to whether the land is irrigated or not is a finding divorced from the facts and the SCA/9356/2000 13/16 JUDGMENT submissions of the parties. The order under challenge made by the Deputy Collector does not refer to the said aspect of the matter at all. Similarly, the contentions of the parties as recorded and reproduced in the impugned order by the revisional authority also do not refer to either the revision applicants or any one else agitating the said issue, namely, whether the land is, or is not, irrigated. Therefore, the findings of the revisional authority, made suo-motu, without there being any opportunity to any one cannot be sustained. If the revisional authority wanted to record finding in this regard, the revisional authority ought to have called upon the parties to establish the said fact, or the other side to disprove the said fact once it was established by the applicants. 14. Unfortunately, when one reads the entire order made by the revisional authority, it appears that instead of calling upon the applicants to prove their case, the revisional SCA/9356/2000 14/16 JUDGMENT authority has proceeded to make an order as if the onus was on the petitioners, who were the opponents, in having failed to establish their case. It was the applicants who were required to first of all lead evidence in support of the revision before the authority and only thereafter could the opponents have been called upon to disprove the case put forth by the applicants. 15. Similarly, the approach of the revisional authority in entirely ignoring the title to the property on the basis of registered Sale Deed is, to say the least, a misdirection in law. It is correct that the revenue authorities not only, cannot pronounce upon the title to the property, but also cannot decide civil disputes between the parties. But that is not to say that the result of a civil dispute, as may be pronounced by a competent Court after adjudication in accordance with law, cannot be treated to be a relevant factor. The same would have a direct bearing on the locus of SCA/9356/2000 15/16 JUDGMENT respondent Nos.4 and 5.If they have no right to hold or acquire the property there cannot be any right to raise any dispute as regards such property. 16. The revisional authority ought to have appreciated that it was the applicants of the revision who had moved the Collector and the Collector had directed the Deputy Collector to decide the application moved by respondent Nos.4 and 5. Therefore, right from inception, the onus was on respondent Nos.4 and 5. Having shifted the burden, incorrectly on the petitioners, the resultant conclusion and the findings are thus based on an erroneous premise of law and cannot be sustained. 17. Hence, in the facts and circumstances of the case, the impugned order made by the revisional authority on 30.3.2000 bearing No.SRD/CON./JND/1/99 is hereby quashed and set aside for the reasons stated herein-before. However, the matter shall stand restored to SCA/9356/2000 16/16 JUDGMENT file of the Deputy Collector for being decided afresh in light of what is stated herein before and in accordance with law after considering all the relevant factors as well as evidence that may be produced by either side, and the revenue record. 18. The petition is accordingly allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent with no order as to costs. (D.A.Mehta, J.) (sunil)