AI Structured Summary
Not yet generated for this judgment
Judgment
Rule. Mr.Tirthraj Pandya, learned Assistant
Government Pleader waives service of notice of Rule for
the respondents.
By preferring this petition under Articles-226 and
227 of the Constitution of India, the petitioner has
challenged the order dated 16.04.2013 passed by the
Secretary (Appeals), Revenue Department (SSRD for
short), the first respondent herein, whereby the
application for review of the order dated 03.10.2007 of
the SSRD was not entertained, the order dated
03.10.2007 of the SSRD, the order dated 29.01.2003
passed by the second respondent, Collector, Rajkot and
the order dated 10.03.1997 passed by the Deputy
Collector.
Briefly stated, the facts of the case are that
land bearing Survey No.222, admeasuring 5 Acres and 20
Gunthas, situated at Village Nakrawadi, District
Rajkot (the land in question), was granted to the
father of the present petitioner as "Santhani" land
for the purpose of cultivation. This land was granted
as new tenure land, subject to certain conditions as
contained in the order of allotment dated 18.07.1975.
It is the case of the petitioner that ever since the
allotment, the land was being regularly cultivated by
the father of the petitioner and, thereafter, by the
petitioner. Condition No.7 in the order of allotment
states that if the land remains fallow, without any
reason, it would be liable to be resumed by the State
Government. A Show Cause Notice dated 13.01.1997 was
issued by the Deputy Collector, calling upon the
petitioner to show cause as to why the land in
question should not be ordered to vest in the State
Government, on the ground that it was kept fallow for
the years 1991-92 and 1994-95. The petitioner replied
to the Show Cause Notice in March 1997, explaining
that he could not cultivate the land due to financial
difficulties, a poor monsoon and the illness of his
father. The petitioner explained that his family
consists of twelve members and the entire family is
solely dependent upon the land in question for their
livelihood. The petitioner also pointed out that
immediately after the period of the breach, the land
has been cultivated by him and, even at the time of
replying to the notice, the land was under
cultivation, which aspect could be verified by an
inquiry. The reply of the petitioner did not find
favour with the Deputy Collector who, by his impugned
order dated 10.03.1997, directed that the land be
vested in the State Government.
It appears from the said order that before the
Deputy Collector directed the vesting of the land, he
had called for a report from the Talati-cum-Mantri of
the concerned village wherein it was observed that
after the grant of the land in the year 1975, the
father of the petitioner had made it cultivable and
was growing crops thereupon. However, it was found, on
the basis of the revenue record, that there was no
cultivation during the years 1991-92 and 1994-95.
Aggrieved by the above order of the Deputy
Collector, the petitioner approached the Collector
who, by the impugned order dated 29.01.2003, rejected
the appeal of the petitioner on several grounds that
would be adverted to at the relevant stage. The
petitioner approached the SSRD by filing a Revision
Application, which was rejected by the impugned order
dated 03.10.2007. Thereafter, the petitioner filed a
review application before the SSRD, which was not
entertained for lack of jurisdiction, as stated in the
order dated 16.04.2013. Under the circumstances, the
petitioner is before this Court.
Considering the facts of the case, this Court,
vide order dated 25.02.2016, directed that a
"Panchnama" of the land in question be prepared by an
officer not below the rank of a Mamlatdar, indicating
the extent of cultivation as well as photographs of
the land. The said Panchnama has been prepared and
will be discussed later on.
Mr.Pravin S. Gondaliya, learned counsel for the
petitioner submits that the father of the petitioner
and, later on, the petitioner himself, have regularly
cultivated the land ever since it was granted in the
year 1975. This aspect has been stated in the order of
the Deputy Collector as well. The petitioner and his
family members have worked hard to make the land
cultivable and would have no other means of livelihood
if the land is taken away from them. It is submitted
that no doubt, there is a condition in the order of
allotment stating that the land would be liable to be
resumed by the State Government if found to be lying
fallow, however, the said condition clearly stipulates
that this eventuality would occur only if the land
remains uncultivated "without any reason". Hence, the
reason put forth by the petitioner, that there was a
poor monsoon during the periods when the land remained
uncultivated, has not been considered or verified.
This reason is beyond the control of the petitioner
who cannot be punished for it. Besides, the father of
the petitioner was facing financial difficulties as
well. It is contended that since 1975 the land has
been regularly cultivated, except for the two periods
during 1991-92 and 1994-95 when there was a poor
monsoon. Even thereafter the land, which is still in
the possession of the petitioner, is being regularly
cultivated. The respondents ought to have ascertained
whether there was any reason for not cultivating the
land, instead of ordering its vesting without a proper
inquiry.
Learned counsel for the petitioner further
contends that while passing the impugned order, the
Collector, has travelled much beyond the scope of the
Show Cause Notice and made observations that are not
at all warranted or germane to the said notice. By
raising grounds not specified in the Show Cause
Notice, the Collector has committed a breach of the
principles of natural justice as the petitioner has
had no opportunity to reply to the said grounds.
It is further submitted that the land in question
has been cultivated even after the breach, which is
clear from the "Panchnama" prepared by the Mamlatdar
under the orders of this Court. The petitioner is
solely dependent on the monsoon for the cultivation of
the land in question as there is no other means of
irrigation available. Without verifying the reason
regarding failure of the monsoon during the relevant
periods of time, which reason is beyond the control of
the petitioner, the respondents have committed a
serious error, by directing the land to be vested in
the State Government, leading to a grave miscarriage
of justice to the petitioner.
In support of the above submissions, learned
counsel for the petitioner has placed reliance upon
the following judgments:
(i) Bharwad Vela Mepa Legal heir of Bharwad Mepa Vs. State of Gujarat, reported in (2005) 8 GHJ (673).
(ii) Satyakalyan Coop Farming Society Ltd. thro
Chairman Vs. State of Gujarat, reported in (2005) 8 GHJ (712).
The petition has been opposed by Mr.Tirthraj
Pandya, learned Assistant Government Pleader,
appearing for the respondents. It is submitted by
learned Assistant Government Pleader that in the reply
to the Show Cause Notice, the petitioner has admitted
that there was a breach of the condition of the
allotment order during the relevant periods of time as
his father was ill and the monsoon was poor. Hence,
the action of the respondents in directing the vesting
of the land is proper and as per the conditions of the
allotment order.
That the petitioner filed a revision application
against the order of the Collector after a delay of
four years, without filing any application for
condonation of delay, therefore, the revision
application has rightly not been entertained by the
SSRD on the ground of delay.
It is further submitted that though there is no
provision for filing a review application, the
petitioner did so, which application has rightly not
been entertained by the SSRD. Learned Assistant
Government Pleader further contends that if the
petitioner is still cultivating the land, as stated by
learned counsel for the petitioner, it would tantamount
to an encroachment, as the land has now been vested in
the State Government since the year 1997.
On the strength of the above submissions, learned
Assistant Government Pleader has prayed for the
rejection of the petition.
Having heard learned counsel for the respective
parties and upon according thoughtful consideration to
the rival submissions and the material on record, it
emerges that the land in question, which was
government waste land, was granted to the father of
the petitioner on 18.07.1975, for the express purpose
of cultivation. The said grant is in consonance with
the beneficial policy of the State Government in
granting parcels of Government waste land to poor,
landless persons, who have no means of livelihood. As
such, the policy that is the cornerstone of the grant
of the land in question to the father of the
petitioner is a benevolent one. No doubt, certain
conditions are attached to the grant, which are
enumerated in the order of allotment. Condition No.7
of the order of grant is to the effect that the land
in question would be liable to be resumed by the State
Government if found to be uncultivated without any
reason. This condition is also in consonance with the
purpose for which the land is granted, namely for
cultivation, which would provide a sustainable means
of livelihood for the person and family in whose
favour it is granted. However, it cannot be lost sight
of, that this condition would only operate if it is
found that the land has remained uncultivated "without
any reason". These are the key words in this condition
which require that the authority concerned which
alleges the breach, is bound to satisfy itself by a
proper inquiry and verification that there was,
indeed, no reason for the land being left
uncultivated. The State Government in its wisdom and
experience, is aware of, and alive to, the possibility
that farmers, especially in the arid region of
Saurashtra where the land is situated, can face
certain difficulties in cultivation and there can be a
valid reason for the land remaining fallow. Only when
it is found that the land has remained uncultivated
"for no reason", as stipulated in Condition No.7, can
the competent authority, in this case the Deputy
Collector, direct the vesting of the land in the State
Government and not otherwise. This stipulation is
clear from a perusal of Condition No.7 of the
allotment order. There can be no automatic vesting of
the land due to its remaining fallow at any given
period without ascertaining the reason for this. To
direct so would defeat the very purpose of the
beneficial policy of the State Government.
It is asserted by learned counsel for the
petitioner and not denied by the respondents, that
there is no other source of irrigation available for
the land in question except the monsoon. The
petitioner has to depend on the vagaries of the
monsoon which does not follow any predictable pattern
and is beyond the control of everybody, even in the
present age of advanced technology. If there is no
other means of irrigation for the land except the
monsoon, it follows that during the years when there
is a poor monsoon there would be no source of
irrigation and it would not be possible to cultivate
the land. Poor monsoon, leading to failure of
cultivation, would lead to financial crisis for the
petitioner who is dependent only on the land in
question for his livelihood and to maintain his family
of twelve members. This reason advanced by the
petitioner in his reply to the Show Cause Notice, in
the view of the Court, is a valid one which ought to
have been examined, verified and inquired into by the
Deputy Collector before passing the order of vesting
the land in the State Government. However, this was
not done and only on the basis of the revenue record
produced by the Talati-cum-Mantri which showed that
the land in question remained fallow for the two
relevant periods of time, has the Deputy Collector
passed the impugned order, that has drastic
consequences for the petitioner.
It is an admitted position that ever since its
grant in the year 1975, the land was being regularly
cultivated by the petitioner''s father and the
petitioner, except for the two periods mentioned in
the Show Cause Notice. It is asserted by the
petitioner and not denied by the respondents that the
land is still being cultivated as the possession is
with the petitioner. This aspect is supported by the
Panchnama that was directed to be drawn by the Court.
The view of this Court that the Deputy Collector
ought to have verified whether there was any reason
for the land remaining fallow and without doing so no
directions could have been issued for its automatic
vesting in the State, is supported by the judgments
relied upon by learned counsel for the petitioner.
In the case of Bharwad Vela Mepa Legal heir of
Bharwad Mepa Vs. State of Gujarat (supra), the facts
were similar to the present case and the land remained
uncultivated due to drought, as per the case of the
petitioner of that petition. The land came to be
forfeited to the State Government. In this context
this Court held as below :
"6. A perusal of the impugned order shows that neither the revenue authority has followed the procedure of giving opportunity of hearing to
the concerned person by observing principles of natural justice before relying upon the revenue record of village Form 7/12 and/or the report of the Talati-cum-Mantri nor it has been considered as to whether the land was not cultivated due to circumstances beyond the holder of the land or not. As per the view taken by this court in the decision rendered in SCA 5877/04 read with the decision in SCA No.3802/04 if it is found that the land was not used for agricultural purpose because of voluntary action or inaction on the part of the holder of the land, then only such power for resumption or forfeiture of the land is permissible. There is no examination on the said aspect by the revenue authority in the impugned order and even in the appeals before the Collector as well as in the revision before the State Govt. the said aspect is not considered. Under the above circumstances, the orders passed by the Dy.Collector and confirmation thereof by the Collector in appeals and further confirmation by the State Govt. in the revision can not be sustained in the eye of law and the said impugned orders deserve to be quashed and set aside and hence they are quashed and set aside.
It is further observed that it would be open to the Dy.Collector to issue a fresh show cause notice and after giving opportunity of hearing and after considering the case for the
concerned land, in light of the observations made by this Court hereinabove and to decide the matter in accordance with law."
In Satyakalyan Coop Farming Society Ltd. thro
Chairman Vs. State of Gujarat (supra), this Court has
held as below :
"4. ***** There must be cogent, authenticated and lawful material for altering the rights in immovable properties for such breach. Moreover, even if it is established that there is a breach, and if the authority is to take action of forfeiture, then it should also be examined as to whether the breach was due to circumstances beyond the control of the holder of the property and, if yes, then in that case, harsh action of forfeiture of the property would not be required but the authority will have to consider the matter for imposition of fine/penalty considering the gravity of the breach, including the period for such breach. If it is a matter resulting into action of forfeiture of land, then principles of natural justice to its full extent considering the facts and circumstances of the case will be required to be followed.
Therefore, only entry in village Form No.7/12 can not be said as sufficient material attracting the power of authority for forfeiture of the land to
the State Government. (emphasis supplied) Under the circumstances, it is apparent that the Prant Officer as well as the State Govt have committed apparent jurisdictional error in exercising power on the basis of the entry in village Form No.7/12 and holding that there is breach of conditions of grant of land and holding that the land deserves to be forfeited to the State Govt.
***** ***** *****
If the observations made by this Court referred to herein above are considered, it is apparent that the competent authority i.e. Deputy Collector has not examined the matter as to whether there was any reason beyond the control of the holder of the land for not utilising the land for agricultural operations fully.*****"
Considering the above judicial pronouncements and
as there has been no proper verification of the reason
for not cultivating the land as submitted by the
petitioner, this Court is firmly of the view that the
land in question could not have been forfeited to the
State Government as the concerned revenue authorities
have themselves not followed Condition No.7 of the
allotment order in its true spirit. Forfeiture of land
granted to a person such as the petitioner for the
purpose of cultivation, which forms the only source of
livelihood for his family of twelve members, is a very
harsh step, considering the fact that the land has
been regularly cultivated from 1975 onwards, except
for the two relevant periods, till date. Such a
drastic power ought not to have been exercised without
properly examining and verifying whether the land
remained uncultivated for reasons beyond the control
of the petitioner or not. Merely relying on revenue
entries is not the right method to do so. Revenue
entries would never record the reason for non-
cultivation of the land but only the factum of non-
cultivation. It is the reason for non-cultivation that
is to be examined and whether it is of a nature over
which the petitioner had no power, such as the failure
of the monsoon. The impugned orders of the revenue
authorities, therefore, cannot be sustained on the
above grounds.
Before parting with the case, this Court cannot
but notice that while passing the impugned order, the
Collector has travelled much beyond the scope and
ambit of the Show Cause Notice, which was confined
only to the two periods that the land remained fallow.
The Collector has thought it fit to observe that the
petitioner resides at Rajkot for educational purposes,
not considering that Rajkot is very close to the
village of the petitioner. There can be no embargo
upon a farmer pursuing his education at the same time
as farming his land. Moreover, the petitioner has a
large family and self-cultivation includes cultivation
by family members as well. Regarding the family of the
petitioner the Collector has observed that the family
of the petitioner consists of twelve persons which is
against the Family Planning norms. This Court is
astonished at this observation, which is as
incongruous as it is irrelevant, in the context of the
issue in dispute. Such loose and unnecessary
observations are absolutely unwarranted and not
expected from a responsible authority such as the
Collector.
The issue of delay raised by the learned
Assistant Government Pleader, which is one of the
reasons why the SSRD did not entertain the Revision
Application of the petitioner, pales into
insignificance when the very basis of the initial
order of forfeiture of land is found to be improper
and unsustainable in law. The revenue authorities have
not exercised the jurisdiction vested in them in a
proper manner, as contemplated by Condition No.7 of
the order of grant. Hence, the cause of the petitioner
cannot be defeated on the ground of delay.
Considering the totality of the facts and
circumstance of the case as discussed hereinabove and
for the aforestated reasons, this Court considers it
just and proper to pass the following order :
The petition is allowed. The order dated
10.03.1997, passed by the Deputy Collector, the order
dated 29.01.2003 of the Collector and the order dated
03.10.2007 of the Special Secretary (Appeals), Revenue
Department are hereby quashed and set aside.
Consequently, the order dated 16.04.2013, passed by
the SSRD in the Review Application of the petitioner
would no longer survive.
Rule is made absolute. Parties to bear their own
costs.