SCA/20006/2007 1/28 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 20006 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ========================================================= 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 ? ========================================================= BHIMPORE SAMUDAYIK SAHAKARI KHETI MANDLI LTD. - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR SUDHIR I. NANAVATI WITH MR.AMIT V THAKKAR for Petitioner(s) : 1, MR.SATYAM CHHAYA, ASST GOVERNMENT PLEADER for Respondent(s) : 1, None for Respondent(s) : 2 - 4. ========================================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 13/08/2007 ORAL JUDGMENT The petitioner-Shri Bhimpore Samudayik Sahakari Kheti Mandli Limited, a society registered under the SCA/20006/2007 2/28 JUDGMENT Bombay Cooperative Societies Act, bearing Registration No.Kh-28 dated 03.12.1960 is before this Court through its Vice President, one Shri Ramjibhai Contractor, challenging order dated 16.07.2007 passed in Revision Application No.MVV/ JMN/ ST/ 8/ 2005, by the Additional Chief Secretary (Appeals), whereby the Additional Chief Secretary (Appeals) confirmed the order passed by the Collector, Surat dated 27.07.2005 and rejected the Revision Application. 2. The facts leading to the filing of the present petition are that petitioner-society was granted total 875 acres, 39.5 gunthas of land by two different orders, namely, (i) L.N.D/ K.1.E dated 31.03.1964, and (ii) LNE/ Misc./S.R. 16/64-65 dated 30.03.1965. The land was granted to the petitioner- society on condition that it shall make it cultivable and then put to use. After the land was granted in the year 1964-65 it was noticed by the authorities that the land is not made cultivable, the Assistant Collector, Chauryashi Prant, Surat, by order dated 19.01.1972, forfeited the same. The Collector in an SCA/20006/2007 3/28 JUDGMENT appeal, on certain conditions quashed order dated 19.01.1972 and granted additional five years to comply with the conditions on which the land was granted. 3. Again at the end of five years it was noticed by the authorities that the land was not made cultivable, order dated 19.08.1978 bearing no.JMN/ KLD/ VASHI-2266/ 78 was passed and the land was ordered to be forfeited. Against this order the petitioner society made a representation before the Government and represented that on account of insufficient water supply and natural circumstances, the entire land could not be made cultivable. The Government taking into consideration the contents of the representation once again by order dated 07.11.1978 quashed the order and gave an opportunity to the petitioner-society to make the entire land cultivable within next five years. 4. But then the petitioner-society was not able to comply with the conditions even within this extended SCA/20006/2007 4/28 JUDGMENT time limit and was not able to put the land to use after making it cultivable. Besides, at the relevant time the petitioner-society did not deposit 60% of the expenses of the 'Adbandh'. Therefore, 'Khar Jamin Vikas Mandal' by its letter dated 22.12.1981 made a proposal/ request to the Collector, Surat to forfeit the land. The Assistant Collector, Chauryashi, for breach of conditions on which allotment was made, made necessary proposal to the Collector pursuant to which the Collector issued notice dated 09.04.1990, but did not pass any order. Later on the Collector, Surat issued Show Cause Notice to the petitioner society on 15.02.2002 and after following the necessary procedure passed order bearing No.A/JMN/ VASHI 2315/ 2003 dated 'nil' September 2003, for forfeiting the lands mentioned in the order. The lands which were not made cultivable were ordered to be forfeited. Against that order, the 'Mandali' filed a revision SCA/20006/2007 5/28 JUDGMENT application before the Secretary (Appeals) in which the Secretary (Appeals) passed order No.MVV/ JMN/ SAT/ 23/ 2003 dated 17.01.2004. The Secretary (Appeals) partly allowed the Revision Application and quashed and set aside the order of the Collector dated 'nil' September 2003 and directed the Collector to decide the matter afresh. 5. The Collector, on remand, heard the matter afresh and passed an order on 27.07.2005. The land which were ordered to be forfeited by order dated 'nil' September 2003, are ordered to be forfeited. It is against this order dated 27.07.2005 the petitioner society filed a Revision Application. The order impugned in the petition dated 16.07.2007 is passed in that Revision Application. The Secretary (Appeals) after recording reasons for upholding the order of the Collector, has upheld the same and has rejected the Revision Application filed by the petitioner society. Being aggrieved of that the society is before this Court. SCA/20006/2007 6/28 JUDGMENT 6. Learned senior advocate Mr.Nanavati vehemently submitted that this is a case of clear bias. He submitted that after the Collector passed order dated 27.07.2005 Revision Application was filed and in that revision application as the interim injunction was not granted, the petitioner society had filed Special Civil Application before this Court being Special Civil Application No.12415 of 2005. The learned senior advocate for the petitioner society submitted that the said Special Civil Application was heard and disposed of by this Court (Coram: Akil A. Kureshi, J.) by order dated 01.07.2005. For ready perusal the said order is reproduced hereinbelow: “Appearing on an advance copy and at the request of the Court, learned A.G.P.,Shri P.R.Abichandani had sought instructions from the respondents regarding the allegations of the petitioner that certain portion of land which is allotted to the petitioner by the Government and about which the proceedings are pending before the Collector for cancellation of such allotment, is being granted to South Gujarat Chamber of Commerce who is respondent no.3 in the present petition. Under the written instructions from the authorities he states that the request of the respondent no.3 for being granted government land is being considered by SCA/20006/2007 7/28 JUDGMENT the Government for which as per the Government policy certain amount of money has been received from respondent no.3 but that, there is no proposal as of now to grant any piece of land to the respondent no.3 which has been granted to the petitioner and the land which is being considered for being granted to respondent no.3 is separate piece of land though forming part of the same survey number. He further states that the proceedings before the Collector for recalling portion of the land granted to the petitioner are fixed for further hearing on 6th of July, 2005 and the Collector shall take an independent decision, in accordance with the law on the basis of available material on record. (emphasis supplied) In view of the above clarifications made by the learned A.G.P., learned Counsel for the petitioner states that the main apprehension of the petitioner having been allied, he does not press the petition without agitating other contentions which would be open for him to raise at appropriate stage. Permission as prayed for is granted. Petition stands disposed of as withdrawn. Learned A.G.P. seeks permission to place on record the communication dated 30th of May, 2005 from D.I.L.R. to the Collector, Surat along with the accompanying map as well as written instructions dated 28/6/2005 and 30/6/2005 received by him from the Collector, Surat. Permission granted. SCA/20006/2007 8/28 JUDGMENT 7. Learned senior advocate for the petitioner society submitted that though a specific statement was made before this Court, the Collector passed order dated 27.07.2005. The submission is without any merit. The statement made before this Court was not to the effect that no order against the society will be passed. The statement was only to the effect that, “there is no proposal as of now to grant any piece of land to the respondent no.3, which has been granted to the petitioner. .. ..” This statement was made in a petition wherein 'non grant' of injunction was challenged. Thus, there is nothing to show that the authority- Collector acted with bias against the petitioner society. At this juncture, it will be necessary to mention that at no point of time, learned senior advocate referred to the land by 'metes and bounds'. Not only that except referring to two survey numbers which are referred to in Annexure 'Z', (P.148) no survey SCA/20006/2007 9/28 JUDGMENT number is referred to. Learned senior advocate for petitioner society submitted that in Revision Application filed by the petitioner-society before the State Government, notice was issued on 03.08.2005 returnable on 23.08.2005 and before that returnable date, the Collector passed order of allotment of land in favour of the Chamber of Commerce. The contention of the learned senior advocate for petitioner society is that the land allotted to the Chamber of Commerce is the same which was granted to the petitioner in the year 1964-65 and which is forfeited by order dated 27.07.2005. He submitted that the Government did not stand to its statement which was made before this Court in the Special Civil Application No.12415 of 2005 on 01.06.2006. The learned senior advocate for petitioner society submitted that the petitioner society filed Misc. Civil Application No.1609 of 2006 complaining about the same. The Misc. Civil Application was heard by this Court (Coram: Akil A. Kureshi, J.). The following order was passed on 24.08.2006, which reads as under: “Draft amendment allowed. The learned advocate SCA/20006/2007 10/28 JUDGMENT for the applicant submits that the Additional Chief Secretary(Appeals) Revenue Department, Government of Gujarat had fixed hearing of stay application filed by the applicant against the order passed by the Collector, on 23-08-2005. The applicant's representative was heard at length but no order has been passed by the Additional Chief Secretary on the stay application. He further submits that in the meantime the Collector is taking steps to take the possession of the land alloted pursuant to the order dated 27-07-2005. Considering the submissions made, issue notice returnable on 31st August, 2005. In the meantime, there will be add interim relief in terms of para. 9(b) till then. Direct Service is permitted. In addition to serving the order by Direct Service, it will also be open for the applicant to communicate the same to the Officer by Fax.” 8. Learned senior advocate for petitioner society submitted that thereafter the Misc. Civil Application was heard and decided by order dated 10.10.2006. For ready perusal the order is reproduced. “The above mentioned Special Civil Application was disposed of by this Court by an order dated 01-07-2005. From perusal of the order, it can be SCA/20006/2007 11/28 JUDGMENT seen that the learned AGP Shri P.R. Abichandani had appeared on an advance copy at the request of the Court. He had sought instructions from the respondents regarding certain allegations made by the petitioner with respect to the portion of land which was allotted to the petitioner by the Government and about which the proceedings were pending before the Collector for cancellation of such an allotment. The learned AGP had made certain statements on the basis of written instructions on the basis of which the petition was disposed of as not pressed without examining other contentions which were left open for the petitioner to raise at appropriate stage. In the present Misc. Civil Application, it is sought to be suggested that statements made on behalf of the respondents were not entirely accurate and subsequent development and materials placed on record would establish the same. The applicant-petitioner has therefore, sought permission for revival of the petition. The respondents have appeared and filed detailed reply to it. The applicant has responded by filing rejoinders. Without going into the intricacies of the allegations and counter allegations in facts of the present case, when the main petition was not heard and disposed of on merits but was disposed of as not pressed on the strength of statement made on behalf of the respondents, keeping all SCA/20006/2007 12/28 JUDGMENT rights and contentions open and when it is sought to be suggested that the statements made at the relevant time did not represent accurately the facts obtaining, it would be appropriate to permit both sides to address the Court on merits. Without expressing any opinion on the contentions raised in the present Misc. Civil Application, in fitness of things, I find it appropriate to permit the applicant to revive the petition and to argue all points raised in the petition before the Court. In view of the above observations, Misc. Civil Application is allowed. Special Civil Application No. 12415/2005 is revived by recalling order dated 1-7-2005. Special Civil Application No.12415/2005 be placed before appropriate Court for admission hearing. Since the interim protection granted to the applicant is being continued from time to time, same shall continue for a period of one week from today. This in no way expresses any opinion on my part about the merits or demerits of the rival contentions. With these observations, Misc. Civil Application is disposed of.” 9. Learned senior counsel emphasised that it was contended on behalf of the applicants that this Court observed in para 2 that the statement made on behalf of respondents was not entirely accurate and subsequent development and materials placed on record would SCA/20006/2007 13/28 JUDGMENT establish the same. But then the Court without expressing any opinion on the contentions raised in the Misc. Civil application permitted the applicant to revive the petition and to argue all points raised in the petition before the Court. The Court was pleased to allow the Misc. Civil Application and ordered that Special Civil Application be placed before appropriate Court. 10. Learned senior counsel for petitioner society submitted that Special Civil Application No.12415 of 2005 was heard and decided by order dated 13.01.2006 (Coram : Akil A. Kureshi, J.). Learned senior counsel invited attention of the Court to para 2 which according to him is relevant for the purpose. Paras 2 and 3 are reproduced hereunder for ready perusal: “I have heard the learned advocates appearing for the petitioner as well as for the State Government primarily on the question of decision of grant of land in question to respondent no.3. The learned AGP Shri Gori at the request of the Court had also made available original records. Upon hearing the learned advocates and upon perusal of the records, it appears that the SCA/20006/2007 14/28 JUDGMENT petitioner is justified in contending that even before the Collector, Surat passed the impugned order on 27-07-2005, the decision to grant the very same land to respondent no.3 was at an advanced stage. In-fact, it would appear that a formal decision was taken to grant the very same land to the respondent no.3 even before the grant in favour of the petitioner was cancelled. This would mean that even before the Collector considered and disposed of the objections of the petitioner to the proposed action of cancellation of grant of land, the entire issue was approached as if the cancellation is a foregone conclusion. This would certainly betray a prejudged bias on the part of the authorities. Ordinarily , I would have been inclined to inquire fully against the order passed by the Collector. However, the revision application of the petitioner is pending before the State Government. Quite apart from the above factual controversy, the crux of the issue is whether the petitioner did actually put the land in question to agricultural use for which same was granted by the Government. If the land which was granted to the petitioner in the year 1964- 1965 has not been put to any meaningful use, it would certainly be open for the authorities to cancel such a grant of land. This is however, yet to be gone into by the Secretary before whom the revision application is pending. I have expressed absolutely no opinion on this aspect of the matter. What is sought to be conveyed is that the issue is required to be considered and decided independently on the basis of available SCA/20006/2007 15/28 JUDGMENT material on record and not for the purpose of achieving a particular goal. In view of the above facts and circumstances, it would be necessary to ensure that the order of the Collector is not implemented when the revision application is still pending before the Secretary. To the extent the Secretary failed to grant interim protection to the petitioner, I find a clear legal error having been committed. Additionally, in special facts and circumstances of the case it would be necessary to grant some breathing time and continue the protection being granted by this Court to the petitioner for some time after the Secretary passes the final order on the revision application filed by the petitioner, if the same is adverse to the petitioners. I am conscious of the fact that ordinarily when the Court is relegating a litigant to an alternative remedy, extension of interim protection is not resorted to, however, here it is not the case where I am inclined to reject the petition on the ground of alternative available remedy. This is a case where I have found considerable force in the contentions of the petitioner that the land which is in possession of the petitioner was sought to be allotted to respondent no.3, before even disposing of the objections of the petitioner and that a statement was made before the Court which was not strictly borne out from the record. In the interest of justice, the SCA/20006/2007 16/28 JUDGMENT following order is therefore, passed : a) The respondents shall not disturb the possession of the petitioner on the land in question till such time the Secretary disposes of the revision application filed by the petitioner challenging an order dated 27-07-2005 passed by the Collector, Surat and further for a period of four weeks of its communication to the petitioner.” 11. The learned senior advocate for petitioner society submitted that the Court was pleased to grant protection against forcible dispossession of the land for a period of four weeks after the communication of the order to the petitioner and that protection is to expire on 16.08.2007. 12. The learned senior advocate for petitioner society submitted that besides this point of 'bias' the petitioner society has a very good case on merits also. In this regard he invited attention of the Court to two documents, namely, (i) Annexure 'G' – pages 76-77, letter dated 20.02.2001 addressed by the Office of the District Agricultural Officer, District Panchayat to the Collector, Surat. He submitted that this letter was very much before the Collector when the Collector decided the matter after it was remanded quashing and setting aside SCA/20006/2007 17/28 JUDGMENT order dated nil September 2003 by the Secretary (Appeals) to decide afresh. He submitted that on 27.07.2005, when the Collector decided the matter this letter dated 20.02.2001, Annexure 'G' was on record of the Collector and the Collector ought to have taken note of the same and should have held that 'the land was made cultivable by the petitioner society' and that being so, there was no breach committed of the conditions on which the land was granted to the petitioner-society. 13. The letter, Annexure 'G' was perused. The learned senior advocate for the petitioner society is not able to point out except a stray sentence which will go to show that the petitioner society had made the land cultivable. The letter makes an interesting reading. In the opening part it is stated that total 875 acres, 39.5 gunthas of land was granted to the petitioner society. Then break up of 875 acres, 39.5 gunthas is set out as under: Acres – Gunthas 561-01 Members of society 041-37 Cooperative farm 018-20 Talav (pond) 014-06 Drainage 012-39 Gauchar 013-00 Bandh SCA/20006/2007 18/28 JUDGMENT Acres – Gunthas 034-38 Passage 034-24.5 'Padtar' 018-06 Canal 050-00 Gamtal 024-14 Sarvoday Nagar 012-14 (kept blank) 875-39.5 Total The letter then proceeds to mention that out of the aforesaid 875 acres 39.5 gunthas, the land mentioned below of Village Bhimpore, on inquiry found to be in the following condition, namely, 70 Acres 0 Are 0 sq. mtrs. .. Forestation ('Vanikaran') 80 “ 0 “ 0 “ .. Paddy crop 07 “ 0 “ 0 “ .. Juvar 136 “ 0 “ 0 “ .. 'Padtar' .......... 293 Acres .. TOTAL .......... Thereafter, the position for the year 2000-01 is set out in subsequent para. But in a preceding para it is mentioned that as per the aforesaid details, the land is cultivated and so is mentioned in Village Form 7/12. It is then recorded that, 'in the current year there being scanty rains and as the land is situated at the 'tail head of the canal', near sea shore, water for irrigation SCA/20006/2007 19/28 JUDGMENT was not available, hence 'the area of cultivation has decreased to a major extent'. Details for the year 2000-01 are as under: (i) Forestation 05-00-00 Note: Crop of 'Wadi' 65-00-00 has failed. (ii) Paddy crop 80-00-00 (iii) Juvar 07-00-00 (iv) 'Chalu-Padtar' 201-00-00 293-00-00 Thereafter, it is stated in the letter that 'as aforesaid on visit of the site and visit to the petitioner society, its opinion was sought, which is accompanied with the letter'; that 'the members of the committee of the petitioner society were also interrogated and on inquiry the aforesaid details are found to be true.' Then comes bolt from the blue. A stray sentence is written, which reads to the effect that, 'Bhimpore Samudayik Sahkari Kheti Mandali has made khar land cultivable'. Not even remotely there is any mention about the area of land which is made cultivable by the petitioner society. SCA/20006/2007 20/28 JUDGMENT It is then mentioned in the letter that 1 to 19 members were allotted 1 to 5 acres of land for cultivation. At this juncture, the learned senior advocate for petitioner society submitted that there is typographical error; and it is not '1 to 19' but it is '1 to 119'. Be that as it may. There is no convincing material to prove that the petitioner society complied with the conditions on which land was granted to it, despite extension given on more than one occasions. The letter then proceeds to record that in Village Form 7/12 the land is recorded in the name of Mandali as new tenure land and at present the members of the Mandali have requested that their names be entered in Village Form 7/12. Without recording any reason the authority just to oblige recommends that the name of the members be entered into Village Form 7/12. 14. The learned senior advocate tried to convince this Court so as to believe and interpret this letter to mean that, 'the petitioner society has complied with the condition of grant of land in the year 1964-65 by making the same cultivable', but to no avail. The claim is too SCA/20006/2007 21/28 JUDGMENT high which cannot be accepted by this Court. This letter is of no help to the petitioner society. The learned senior advocate for the petitioner society during the course of his arguments submitted that, 'it is for the authority to prove that the petitioner society has not made the land cultivable'. In the considered opinion of this Court this is nothing but 'shifting of burden of proof'. The land to the extent of 875 acres was granted by the Government in 1964-65 on condition that the society should convert it into a 'cultivable' land. As seen hereinabove despite repeated chances having been given to the petitioner society, it could not fulfil the condition. It is not able to satisfy the authorities on the point that the land is, if not entire, at least a major part thereof is converted into cultivable land. Letter dated 20.02.2001 is of no help to the petitioner society. It will not be inappropriate to observe that this letter on the face of it is 'an obtained letter' from the District Agricultural Officer, who has issued the same for the reasons best known to him, prima facie, to oblige, if