CAV Judgment

1. The present Special Civil Application is filed praying for the following reliefs:-

          "34(A) Admit and allow the present petition;

          (B) Issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or direction, quashing and setting aside the order passed by the Collector, Bhavnagar dated 13.04.2017 bearing No. Land-2/Re-grant/5140/2017, and further direct the Collector, Bhavnagar to grant the land to the petitioner herein, as the petitioner's father had purchased the land by way of public auction and the relinquishment of land by one person is contrary to the provisions of the Act and the Rules, for the reasons stated in the Memo of Petition and in the interest of justice;

          (C) Pending admission, hearing and final disposal of the present Special Civil Application, restrain the officers, servants, employees and agents from disturbing the possession of the petitioner in respect of the land bearing Survey No. 36, admeasuring Hectare 4-52-24 sq. mtrs., situated at Village: Bhadbhid, Taluka and District: Bhavnagar, for the reasons stated in the Memo of Petition and in the interest of justice;

          (D) Pending admission, hearing and final disposal of the present Special Civil Application, stay the execution, operation and implementation of the order passed by the Collector, Bhavnagar dated 13.04.2017 bearing No. Land-2/Re-grant/5140/2017, for the reasons stated in the Memo of Petition and in the interest of justice;

          (E) Grant ad-interim and interim relief in terms of clauses (C) and (D) hereinabove, for the reasons stated in the Memo of Petition;

          (F) Grant such other and further reliefs as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case;

          (G) Award the costs of the present petition."

2. The factual matrix in the present case is that, the petitioners are belonging to Scheduled Tribe category and are the legal heirs of late Kachrabhai Kesharbhai, who was granted land bearing Survey No. 36 admeasuring 12 Acres 26 Gunthas at Village Bhadbhid, Taluka and District Bhavnagar and whose pedigree is placed on record. That the said land was originally recorded as Government fallow land, which was allotted for agricultural purpose by way of public auction on payment of Rs.11/-, pursuant to which Entry No. 208 dated 07.07.1959 was mutated in the revenue record and Kachrabhai Kesharbhai's name came to be recorded in Village Form No. 7/12.

          2.1 That the said land is non-irrigated agricultural land and was meant to be used for cultivation. That upon the demise of Kachrabhai Kesharbhai, the land devolved upon his legal heirs, namely his four sons Amarshibhai, Ravjibhai, Talshibhai and Gabharubhai and, his four daughters Jamnaben, Dholiben, Laxmiben and Jayuben and his wife Jadiben, who subsequently expired, though the names of the legal heirs were not mutated in the revenue records.

          2.2 That in the year 1972, one of the heirs, Ravjibhai Kachrabhai, submitted an application for relinquishment of the land, which was accepted by the Mamlatdar, Bhavnagar, vide order dated 27.01.1972 passed in Land/Tu.Se./9/72, pursuant to which Entry No. 384 dated 06.05.1972 came to be mutated, showing the land as deducted from the account of the original holder and registered as Government Khalsa land.

          2.3 That after a lapse of about 44 years, the legal heirs of the original land holder submitted an application dated 20.01.2015 before the Mamlatdar seeking return/re-grant of the land as heirs of the original grantee. That the Mamlatdar initiated inquiry and called for reports and Panchnamas. Multiple reports came to be submitted by the Mamlatdar between February 2015 and October 2015 stating that the land was under cultivation, that there was no encroachment and that there was no objection granting the land to the petitioners.

          2.4 That during the pendency of the re-grant proceedings, the Mamlatdar and Executive Magistrate, Bhavnagar Rural, by letter dated 17.03.2016 addressed to the Revenue Commissioner, Bhavnagar, reported that upon examination of land records from 1959-60 to 2014-15, cultivation of sorghum was shown only during 1959-60 to 1961-62 in 8 Acres out of the total 12 Acres 26 Gunthas and that from 1962-63 onwards the land was shown as fallow land in the Pani Patrak and that in 1971-72 the name of Galru Kesar appeared in the Pani Patrak showing the land as fallow. That the said letter further recorded that by order No. Land/9/72 dated 27.05.1972, the land was mutated as Government land and that thereafter, despite the land being Government land, a lien entry was found written in the name of one Jivraj Amara without any supporting mutation entry and that such name appeared to have been written later by obtaining manual copies of village records with no official entry authorising the same. That the said letter further stated that despite the land being treated as Government land, no encroachment proceedings under Section 61 of the Gujarat Land Revenue Code, 1879 ["Code" for short] were initiated by the Talati-cum- Mantri, Circle Officer, or Mamlatdar and that earlier reports by the Circle Officer, Bhavnagar Rural and Talati-cum-Mantri, Bhadbhid, recorded that cultivation had been carried out for approximately 25 years and that if cultivation was in fact being carried out, action under Section 61 for unauthorised occupation of Government land was required but had not been taken. That the said letter also recorded that between 1974-75 and 1985-86, the name of one Jivraj Amara appeared as cultivator in the revenue record without any traceable entry or identification of such person and that the land was presently shown in the possession of "Shri Sarkar" and not in the possession of the heirs of the original holder and that therefore, while the land was stated to be not eligible for return as per the applicant's demand, action under Section 61 of the Code for unauthorised possession was recommended against the person shown in possession.

          2.5 That the Deputy Collector, Bhavnagar by communication dated 04.07.2015 forwarded the entire record to the Collector stating that there was no objection to grant the land to the petitioners, pursuant to which the Collector sought clarifications regarding earlier revenue entries and the relinquishment order of 1972 and further reports and Panchnamas came to be submitted. That subsequently, relying upon the original nature of the land as Government fallow land, the relinquishment entry of 1972, village records reflecting periods of non-cultivation, the long lapse of time of about 44 years and by applying the Government Resolutions and Section 5 of the Limitation Act, 1963, the Collector, Bhavnagar, passed the impugned order dated 13.04.2017 bearing No. Land-2/Regrant/5140/2017 rejecting the application for re-grant and directing initiation of action for unauthorised possession.

Aggrieved, the petitioners have filed the present writ petition.

3. Mr. B.T.Rao, learned counsel for the petitioner submits that the impugned order passed by the Collector is illegal, erroneous, arbitrary and contrary to the provisions of law as it has been passed without following the mandatory procedure prescribed for relinquishment of land. He submits that the alleged relinquishment application was submitted only by Shri Ravjibhai and not by all the legal heirs of late Kachrabhai Kesarbhai, even though the land had devolved upon all the heirs, and therefore, a single co-sharer had no authority in law to relinquish the entire land. He submits that the Mamlatdar had no jurisdiction or authority to accept or act upon such relinquishment as under the Code and the Rules framed thereunder, only the Collector, exercising the powers of the Government can pass orders after conducting a proper inquiry. He submits that no inquiry as contemplated under Rule 74 and Rule 74-B was conducted either by the Mamlatdar or by the Collector and no consent of all joint holders or legal representatives was obtained, rendering the entire proceedings void ab-initio. He submits that consistent reports of the Deputy Collector, Mamlatdar, Circle Officer and Talati-cum-Mantri since 2015 clearly record that the petitioners are in continuous possession of the subject land and are carrying out agricultural activities and that the land has never remained fallow or idle. He submits that the land in question is not Government land as the petitioner's father had purchased the same by way of public auction and therefore, the State authorities could not have treated it as Government land or ordered its disposal in the manner adopted. He submits that reliance placed by the authorities on the Government Circular dated 18.12.2004 is wholly misplaced and inapplicable to the facts of the present case, particularly when the petitioners have been in long, settled and lawful possession. He submits that the findings of the Collector that the land could only be disposed of at market value and that limitation operates against the petitioner are illegal as limitation cannot validate an order which is void for lack of jurisdiction and passed without inquiry. He submits that the petitioner and other heirs are uneducated, unqualified and belong to the Scheduled Tribe community and it was the statutory duty of the Mamlatdar and Collector to act with greater care and to protect their rights, which duty has been completely ignored. He submits that the petitioner continued to remain in possession of the land even after the impugned orders and has never encroached upon the land, which is supported by Village Form No. 7/12 records showing cultivation for several years. He submits that the application for re-grant was made only due to ignorance of law and misunderstanding of legal consequences and such misunderstanding cannot deprive the petitioner of his substantive rights over land lawfully acquired by his father. He submits that since all statutory authorities themselves have consistently recorded the possession and cultivation in favour of the petitioner, the impugned orders passed by the Mamlatdar and Collector are unsustainable in law and deserve to be quashed and set aside. He, therefore, submits that the present writ petition be allowed.

4. Mr. Jay Barot, learned Assistant Government Pleader for the respondents submits that the application for re-grant of land was rightly rejected by the Collector, Bhavnagar as the land in question was originally Government fallow land, which stood validly reverted to Government Khalsa land pursuant to the voluntary relinquishment made by Ravjibhai Kachrabhai in the year 1972 and accepted by the competent authority, followed by mutation of Entry No. 384 dated 06.05.1972. He submits that the petitioner or their predecessors did not challenge the said relinquishment or revenue entry for more than four decades and therefore, the claim raised in the year 2015 is grossly delayed and barred by limitation. He submits that village records also reflect periods of non-cultivation and absence of lawful title with the petitioners. He submits that mere possession, if any, does not confer any legal right for re-grant and that the Collector has correctly applied the relevant Government Resolutions, revenue provisions and Section 5 of the Limitation Act, 1963 and after due inquiry and consideration of the record, has lawfully rejected the request for re-grant and ordered action against unauthorised occupation. He submits that the impugned order dated 13.04.2017 is legal and proper. He, therefore, submits that the present writ petition be dismissed.

5. Heard learned counsels for the parties, perused the documents and considered the submissions.

6. The facts in the present case reveal that the subject land in question came to be relinquished in the year 1972 by the legal heir - Ravjibhai Kachrabhai, which came to be accepted by the learned Mamlatdar, Bhavnagar vide order dated 27.01.1972 passed in Land/Tu.Se./9/72 pursuant to which Entry No.384 came to be mutated showing the land as a Government land. After a period of about 44 years, the legal heirs of the original grantee - late Kachrabhai Kesharbhai are now seeking re- possession of the same on the ground that the order of relinquishment is bad in law and without following any mandatory procedure. The revenue records in the present case in respect of the subject land show that the said land was Government fallow land and after relinquishment, the same has not been mutated back as Government land. Further, after the relinquishment, there are no clear records in respect of the cultivation of the land in question. Further, the petitioners as they claim to be in possession of the subject land, cannot be said to have a legal title to the same.

7. The learned Collector, Bhavnagar after going through the revenue records by the order dated 13.04.2017 has come to the conclusion that the subject land was not granted to the predecessor of the petitioners by way of Santhni in accordance with law. Further, the learned Collector, Bhavnagar has observed that after a period of 44 years, the petitioners are seeking re-grant of the land after gross delay. It is observed that the subject land prices have increased substantially in the last 44 years. Further, it has non-agricultural potential now for the commercial development and that the subject land will have to be disposed of in terms of the present prevalent Rules and Circulars of the State Government. On the issue of comparative hardship, the learned Collector, Bhavnagar has held that after a period of 44 years, no hardship can be said to have been caused to the petitioners if the application is rejected on the basis of gross delay of about 44 years. Further, it is observed that the land records show that the subject land was cultivated from 1962-1963 to 1992-1993 and thereafter, the subject land is Government fallow land. It is observed that the subject land as of today is an open land. Even if the petitioners claim possession over the said land, the said possession is illegal and the petitioners have no title to the same as the subject land is a Government land as per the revenue records.

8. The aforesaid observations made by the learned Collector, Bhavnagar are based on the revenue records placed before him. The learned Collector, Bhavnagar has given cogent reasons for rejecting the application of the petitioners for re-grant of the subject land. No interference is called for. The present Special Civil Application is devoid of merits and is, accordingly, dismissed. Rule is discharged. No order as to costs.