SCA/4802/2008 1/15 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4802 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE A.M.KAPADIA HONOURABLE MR.JUSTICE R.H.SHUKLA ========================================================= 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 ? ========================================================= SAHADEVBHAI MARIYABHAI VAGHAT & 1 - Petitioner(s) Versus STATE OF GUJARAT & 3 - Respondent(s) ========================================================= Appearance : MR JAL SOLI UNWALA for Petitioner(s) : 1 - 2. MR RC KODEKAR, AGP, for Respondent(s) : 1 - 2. MR ASPI M KAPADIA for Respondent(s) : 3, MR CJ VIN for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE A.M.KAPADIA and HONOURABLE MR.JUSTICE R.H.SHUKLA Date : 28/04/2008 ORAL JUDGMENT SCA/4802/2008 2/15 JUDGMENT (Per : HONOURABLE MR.JUSTICE R.H.SHUKLA) RULE. Ms. Archana Rawal, learned APP, appears and waives service of notice of Rule on behalf of respondent Nos. 1 and 2, Mr. Aspi Kapadia, learned advocate, appears and waives service of notice of Rule on behalf of respondent No. 3, and Mr. Chandresh Vin, learned advocate, appears and waives service of notice of Rule on behalf of Respondent No. 4. 2. Leave to delete the averments made in paragraph 5 of the Reply Affidavit filed by Respondent No. 4, which is as under: “I say that I am the rightful owner of the lands and hence legally entitled to receive the same. In fact the present petitioners are trying to misguide this Hon'ble Court and are attempting to reopen the case which they have lost earlier and have delayed in challenging the orders passed earlier. The petitioners are intending to use this Court as an instrument to get the delay condoned and make the authorities re- examine the case so that they can use unscrupulous means to make amends in their favour.” 3. By the consent of the learned advocates appearing for the parties, the matter is taken up for final hearing today. SCA/4802/2008 3/15 JUDGMENT 4. The present petition has been filed by the petitioners for the prayer, inter alia, that it may be declared that the present petitioners are the co- owners of the land bearing survey Nos. 156, 160, 164 and 165 situated at village Sarigam, Taluka Umargaon, Distrit Valsad, and also for declaration that they are entitled to share the compensation equal to that of the share of respondent No. 4 and, therefore, they have prayed to quash and set aside the impugned order dated 12.2.2008 passed by the Collector, Valsad, at Annexure C. Pending hearing, interim relief is also prayed to restrain the authorities from disbursing the amount of compensation to respondent No. 4. Facts: 5. The facts of the case, briefly summarized, are as follows: 5.1 One Ramjibhai Bhikhubhai Vaghat had 4 sons, (1) Dashamabhai Ramjibhai, (2) Mariya Ramjibhia, (3) Kathiyabhai Ramjibhai, (4) Maniya Ramjibhai and one daughter Sukhriben. Except Deshamabhai, all the other SCA/4802/2008 4/15 JUDGMENT legal heirs of late Ramjibhai Bhikhubhai have expired leaving 2 sons of Shri Mariyabai Ramjibahai, i.e., the present petitioners. The pedigree is also stated at Annexure-A. 5.2 It is contended that father of the present petitioners Mariyabhai expired in the year 1963-64 and as the petitioners were minor at that time, the properties/land were kept in the name of respondent No. 4. Therefore, when the present petitioners became major in the year 1988, their names came to be entered in the revenue record by way of Entry No. 5600. It is also contended that thereafter somewhere around 31.5.1991 as per the information received by the petitioners, the Mamlatdar passed an order in RTS Case No. 14/91 whereby the names of the petitioners came to be deleted from the revenue record without giving an opportunity of hearing to them. 5.3 It is contended that the petitioners were in absolute dark as to how and in what manner such order came to be passed by the Mamlatdar in RTS Case No. 14/91 inasmuch as they have been cultivating the lands and are still in possession and are having SCA/4802/2008 5/15 JUDGMENT residential house also. It is therefore contended that the present petitioners are in possession of the disputed land in question and the officers of respondent No.3, i.e., the competent authority, Gujarat State Petronet Ltd., came to install pipeline through the disputed survey Nos of which the present petitioners are in possession and at that time they came to know that the land has been acquired by respondent No. 3. Therefore, when they made inquiry from the office of respondent No. 3, they came to know that respondent No. 4, who is the so-called sole owner of the land, has signed the panchkyas and the possession is shown to have been taken over. It is also contended that as the names of the petitioners have been deleted, they have taken the matter before the revenue department. A coy of the application made before the Secretary, Revenue Department, is at Annexure-B and on that basis the Revenue Department has referred the matter to the Collector, Valsad and the Collector referred it to the Dy. Collector, who passed the impugned order at Annexure-C dated 12.2.2008. It has been contended that as the co- owners, the amount of compensation should have been awarded to the petitioners along with respondent SCA/4802/2008 6/15 JUDGMENT No.4. It is also contended that as per sec. 11(5) of the Gujarat Water and Gas Pipeline (Acquisition of Right of Users in Land) Act, 2000 (5 of 2007), the competent authority has the power to refer the dispute arising as to the apportionment of the compensation to the Collector within whose jurisdiction the land is situated. Therefore, as the petitioners raised dispute with regard to compensation and the apportionment, the dispute was referred to the Collector. However, the Collector, vide order dated 12.2.2008 at Annexure-C, disposed of the said application without giving an opportunity of hearing to the petitioners and without considering any documents relied upon by the petitioners and decided the application in favour of respondent No. 4, that it is only respondent No. 4, who is entitled to the compensation and not the petitioners. 6. It is this order which has been assailed in the present petition on the ground that the impugned order passed by the Collector dated 12.2.2008 at Annexure-C is in disregard to the documents relied upon by the petitioners and has not taken into consideration the documents relied upon by the SCA/4802/2008 7/15 JUDGMENT petitioners which have been produced at Annexure-D in the present petition. It has been therefore contended that the impugned order passed by the Collector is bad, illegal and in violation of the principles of natural justice. It is also contended that the Dy. Collector has disregarded the evidence produced at Annexure-D that possession of the aforesaid survey nos of land are already with the petitioners having a residential house and they are cultivating the land since number of years. Therefore, the Collector has failed to appreciate this fact. It has also been contended that the Collector has failed to consider and take into account the documentary evidence of sammati-patrak by respondent No. 4 accepting the fact that disputed property is in possession of the petitioners and he has no right in the disputed property. It is also contended that it has been admitted by respondent No. 4 as and by way of letter of acknowledgment dated 3.2.1989 that the land bearing survey Nos. 160/1, 157, 156 and 165 belong to the petitioners and survey No. 160 belongs to petitioner No. 2 and that he does not have any right over it. This is an important piece of evidence which has not been SCA/4802/2008 8/15 JUDGMENT considered at all by the Collector while passing the impugned order and, therefore, the present petition has been filed for the prayers to which reference is made in earlier paragraph of this judgment. 7. The reply has been filed by respondent No. 4 contending, inter alia, that the contentions raised in the petition are not true and are denied. It has been contended that the impugned order is passed by the Collector on the basis of the relevant record made available to him. It is also contended that the petitioners have no right in lands bearing survey Nos. 156, 150, 164 and 165 situated at village Sarigam, Taluka Umargaon, Distrit Valsad and therefore the Collector has rightly awarded the compensation in favour of the respondent No. 4. It has also been contended that the petitioners are his nephews. It is not true that because the father of the petitioners died in 1964 the lands were placed or shown in the name of respondent no. 4. It has been contended that the petitioners got their names entered in the record of rights vide Entry No. 5600 wrongly for which an appeal was preferred and ultimately considering the record the names have been SCA/4802/2008 9/15 JUDGMENT deleted as the co-owners of the land. It has been contended that the Mamlatdar had made an inquiry and after hearing the parties passed an order and, therefore, the entry was made in the village record vide Entry No. 5937 dated 5.9.1991. He has also produced at Annexure R-1 a copy of the said entry in the Village Form No. 6. It has been contended that respondent No. 4 is in possession of the said land and is cultivating and the lands were not inherited by the father and they have acquired the lands under the provision of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the 'Tenancy Act') 8. Therefore, it has been contended, referring to the document at Annexures R-1 and R-2 that the mode of acquisition of the land by the father is pursuant to the tenancy rights and therefore it is self- explanatory and the petitioners have no right, title or interest in the disputed land. It has also been contended that the perusal of Entry No. 5937 would make it clear that the petitioners were not only aware, but the competent authorities had afforded an opportunity to the petitioners of being heard and SCA/4802/2008 10/15 JUDGMENT thereafter the order has been passed and after a period of 17 years they have now got up from slumber and is asking for indulgence. It has been contended that for passing the impugned order the collector has considered all the documents and thereafter the order has been passed which is just and proper. 9. Heard learned advocate Mr. Jal Unwalla for the petitioners as well as Ms. Archana Rawal, learned AGP for respondent Nos. 1 and 2, Mr. Aspi Kapadia, learned advocate for respondent No. 3 and Mr. C.J. Vin, learned advocate for respondent No. 4. 10. It transpires from the record including the pedigree and the sammati-patrak as well as the understanding before the Lavad, which has been produced on record, that respondent No. 4 Dashamabhai Ramjibhai and the father of the present petitioners Mariyabhai Ramjibhai and Kathiyabhai Ramjibhai, had arrived at an understanding in Lavad on 27.1.1991 in which it has been specifically mentioned that father of the 3 brothers was cultivating the land before the Tenancy Act came into force. It is also recorded that voluntarily they have arrived at an SCA/4802/2008 11/15 JUDGMENT understanding regarding the possession and cultivation of the land. Further, the sammati-patrak which has been executed by respondent No. 4 clearly states that as he was the eldest in the family, entry has been made in the revenue record in his name and younger brother Mariyabhai Ramjibhai has expired and his 2 sons Sahadevbhai and Kikubhai have right/share in this land which is shown in the name of respondent No. 4. Similarly, he has executed a specific writing declaring that as Mariyabhai Ramjibhai, younger brother of Dashamabhai, respondent No. 4, was young, entry in the revenue record was made in the name of respondent No. 4 and he is shown as kabjedar. However, in the said land the sons of the brother Mariyabhai, that is, the present petitioners, Sahadevbhai and Kikubhai, has right, title, interest and he has no objection if any house is constructed by them. 11. Thus, it is evident that the petitioners have been permitted to retain possession and to cultivate the land and they have been in fact cultivating the land in question and the possession thereof has remained with them. These documents are produced on SCA/4802/2008 12/15 JUDGMENT record which are contrary to the contention raised in the affidavit-in-reply filed by respondent No. 4. The documents which have been referred to and relied upon by respondent No. 4 are at Annexures R-1 & R-2 to support his contention that the land in question came to the father of the respondent No. 4 under the Tenancy Act and the petitioners have no right, title, interest is required to be examined in light of the Lavad understanding arrived at between respondent No. 4 Dashamabhai Ramjibhai and his brothers, Mariyabhai (father of the petitioners), Kathiyabhai Ramjibhai and Maniya Ramjibhai. It has been specifically recorded that originally their father Chimanbhai Vaghat was cultivating the land and that is how it came to respondent No. 4 and his brothers and as father of the petitioners Mariyabhai, who is the brother of respondent No. 4, had expired, his 2 sons, viz. the present petitioners, have right, title, interest and a share in the land for which he has given declaration also. Therefore, this contention raised about exclusive right, pursuant to the Tenancy Act, in favour of respondent No. 4 prima facie does not appear to be justified. However, it is required to be examined in light of the material SCA/4802/2008 13/15 JUDGMENT evidence on record including the revenue record. 12. A close look at the Annexures R-2, entry in the Village Form No. 6, would show that the name of respondent No. 4 is recorded as the occupier and Entry No. 5600, by which the name of the petitioners were entered, have been deleted subsequently pursuant to Entry No. 5937 in Village Form No. 6 which is produced at Annexure R-1 and it has been referred to and relied upon by learned advocate Mr. Vin also is required to be considered in light of the other documents produced by the petitioners with the petition at Annexure-D and particularly the sammati- patrak or the writings executed. Moreover, a bare perusal of the impugned order at Annexure-C would make it clear that there is a reference to RTS Case No. 14/91 and in para 5, while passing the impugned order, the Dy. Collector has only mentioned that as the documents produced by the petitioners are not relating to the revenue record, the same cannot be considered and on that basis the impugned order came to be passed. He has also referred to the fact that the land in question came to the father of the petitioners under the Tenancy Act independently for SCA/4802/2008 14/15 JUDGMENT which also there is no discussion and he has not referred to the sammati-patrak or the writing executed by respondent No. 4 in favour of the petitioners and also the understanding arrived at in Lavad on 27.1.1991. 13. Further, it is not in dispute that though the name of the petitioners entered in the revenue record pursuant to the Entry No. 5600, which has been deleted, further proceedings are pending. 14. Therefore, in light of the submissions made and the record, prima facie, it appears that the impugned order has been passed without proper consideration of the relevant facts and the revenue record. However, without expressing any opinion on merits, it would be in fitness of things if the impugned order at Annexure-C is quashed and set aside with a direction to decide the matter afresh after hearing the parties and/or their learned advocates. Therefore, though the prayer is with regard to declaration, which cannot be entertained, the alternative prayer which learned advocate Mr. Unwalla for the petitioners has submitted for remanding the matter back, is required SCA/4802/2008 15/15 JUDGMENT to be granted. 15. The present petition, therefore, deserves to be allowed partly. The impugned order at Annexure-C passed by the Dy. Collector is hereby quashed and set aside and the matter is remanded to the Collector to be decided afresh on the basis of the material in evidence and the revenue record after hearing the parties and/or their learned advocates. 16. We make it clear that we have not expressed any opinion on merits of the matter. The Collector shall decide the matter on merits on the basis of evidence on records independently without being influenced by this order in accordance with law. 17. Accordingly, the petition stands allowed partly. Rule is accordingly made absolute to the aforesaid extent with no order as to costs. (A.M. Kapadia, J.) (R.H. Shukla, J.) (hn)