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IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10811 of 1995
WITH
CIVIL
APPLICATION NO.6603 OF 2010
=========================================================
MAHANT
NATVARDAS JAGJIVANDASJI - Petitioner(s)
Versus
STATE
OF GUJARAT & 27 - Respondent(s)
=========================================================
Appearance :
MR
GAURANG H BHATT for
Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) : 1, 3, 5, 7,11
- 12,14 - 15,23 - 26.
None for Respondent(s) : 2, 2.2.1, 2.2.2,
2.2.3, 2.2.4, 2.2.5, 2.2.6, 2.2.7, 2.2.8, 2.2.9, 2.2.10, 2.2.11,
4.2.1, 4.2.2, 4.2.3, 4.2.4, 4.2.5, 4.2.6, 4.2.7, 4.2.8, 4.2.9,
4.2.10, 4.2.11, 8.2.1, 8.2.2, 8.2.3, 8.2.4, 8.2.5, 8.2.6, 8.2.7,
8.2.8, 8.2.9, 8.2.10, 8.2.11, 13, 13.2.1, 13.2.2, 13.2.3, 13.2.4,
13.2.5, 13.2.6, 13.2.7, 13.2.8, 13.2.9, 13.2.10, 13.2.11, 16, 16.2.1,
16.2.2, 16.2.3, 16.2.4, 16.2.5, 16.2.6, 16.2.7, 16.2.8, 16.2.9,
16.2.10,16.2.11 - 17, 17.2.1, 17.2.2, 17.2.3, 17.2.4, 17.2.5, 17.2.6,
17.2.7, 17.2.8, 17.2.9, 17.2.10,17.2.11 - 18, 18.2.1, 18.2.2, 18.2.3,
18.2.4, 18.2.5, 18.2.6, 18.2.7, 18.2.8, 18.2.9, 18.2.10,18.2.11 - 19,
19.2.1, 19.2.2, 19.2.3, 19.2.4, 19.2.5, 19.2.6, 19.2.7, 19.2.8,
19.2.9, 19.2.10, 19.2.11, 21, 21.2.1, 21.2.2, 21.2.3, 21.2.4, 21.2.5,
21.2.6, 21.2.7, 21.2.8, 21.2.9, 21.2.10,21.2.11 - 22, 22.2.1, 22.2.2,
22.2.3, 22.2.4, 22.2.5, 22.2.6, 22.2.7, 22.2.8, 22.2.9,
22.2.10,22.2.11
MR DHIRENDRA MEHTA for Respondent(s) : 3 - 12,
15,
- for Respondent(s) : 0.0.0
- for Respondent(s) :
0.0.0,0.0.0
- for Respondent(s) : 0.0.0,0.0.0
- for
Respondent(s) : 0.0.0,0.0.0
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 13/10/2010
ORAL
ORDER
By
way of this petition the petitioner has challenged the order passed
by the Secretary, (Land Reforms), Revenue Department, State of
Gujarat passed in Application No.SBN-2778-M-8320-Z dated 24/01/1983
whereby the Secretary while disposing of the said application
directed that the rights of the petitioner for land bearing Survey
No.205 admeasuring 30 Acres and 21 Gunthas was granted under the
Saurashtra Barkhali Abolition Act, 1951 for personal cultivation or
for growing fruit trees on condition that the same will be recalled
or revived at any time for the public purpose.
2. The
brief facts of the case are that land bearing Survey No.205
admeasuring A.30-25G prior to coming into force of the Barkhali
Abolition Act, was held under the Barkhali Tenure by the Dharmada
Institution known by the name of Laxminarayan Temple of Mahuva which
had to utilize the income derived therefrom for the benefit of poor
people in accordance with the terms of the original grant made to the
institution by the old rulers of Mahuva. However, the institution
used to give this land to Khoja Valimanad Mehrali of Mahuva with
effect from 08/03/2010 on verakhat which was being renewed every ten
years by the consent of both the parties. Last renewal took place in
the year 1944 for a period of ten years and in this agreement the
trustees nominated by the Ex-Bhavnagar States had entered into an
agreement for and on behalf of the institution with Khoja Valimamad.
This last verakhat was agreed upon for ten years and was therefore to
expire in the year 1954. However, in the year 1951 the Barkhali
Abolition Act came into force and both the parties demanded occupancy
rights under the Act. Khoja Valimamad applied to Special Mamlatdar’s
Court for grant of occupancy right, who decided that Khoja Valimamad
was not entitled to be given the occupancy rights and that he was
holding the disputed land as a mere licensee and not as a full
fledged tenant. The Khoja Valimamad preferred an appeal to the Deputy
Collector, Mahuva who allowed the appeal and set aside the order of
the Special Mamlatdar and decided that Khoja Valimamad was a tenant
and was to be granted occupancy rights as such under the Barkhali
Abolition Act. Against the said decision of the Deputy Collector,
Mahuva, the Laxminarayan Temple Institution made a revision
application to the Saurashtra Revenue Tribunal who decided that the
disputed land was Barkhali Tenure and that Khoja Valimamad was a
tenant and thereafter reversed the order of the Deputy Collector,
Mahuva insofar as it relates to grant of occupancy certificate to
Khoja Valimamad and ultimately case was remanded to the Mamlatdar who
made an inquiry and decided that Laxminarayan Temple Institution
cannot be re-granted land. Thereafter the Government by letter
informed that there was no special reason to reconsider the earlier
order dated 27/12/1961. Thereafter, the petitioner filed SCA No.577
of 162 which was withdrawn in view of the alternative remedy. The
petitioner had also filed RCS No.90 of 1963 before the Court of
learned Civil Judge (SD), Bhavnagar against the impugned order dated
27/12/1961, which came to be allowed and impugned order dated
27/12/1961 was quashed and set aside. Thereafter, the Khoja Valimamad
had preferred First Appeal No.613 of 1968 before the High Court and
in view of jurisdiction the same was disposed of. Thereafter, the
Khoja Valimamad preferred Civil Appeal No.130 of 1970 before the
District Court, Bhavnagar which was dismissed and order of the trial
Court was confirmed. Thereafter, the legal heirs and representatives
had preferred Second Appeal No.481 of 1974 before this Court which
was also dismissed directing the State Government to decide the
dispute in accordance with Section 12 of the Saurashtra Barkhali
Abolition Act, 1951 in respect of the grant of the disputed land.
Thereafter, in pursuant thereto the Secretary, (Land Reforms),
Revenue Department, State of Gujarat having heard the parties passed
the order dated 22/03/1982 which is challenged by way of the present
petition.
3. Learned
Advocate appearing for the petitioner has submitted that case of the
petitioner is identically situated with the other trust for which the
learned Advocate for the petitioner has relied upon ground (q) of the
petition. He further submitted that the observations made by the High
Court while deciding Second Appeal No.481 of 1974 is relevant and has
relied upon the operative portion of the order which reads as under:
The result of this
litigation as intends to-day would be that the Government will hear
both the sides and decide the question of grant of land under Section
12 of the Act, after extending an opportunity their say, both the
heirs of deceased Ali Mohmad as well as to the Manager of the Trust.
3.1 Learned
Advocate for the petitioner has submitted that in that view of the
matter the certificate issued in favour of the respondent by the
authority is not in consonance with law and the order passed by the
Mamlatdar and Deputy Collector which has merged in the order of the
Saurashtra Revenue Tribunal which has directed to recommend the case
after examining the matter, has wrongly been relied upon by the
Secretary, (Land Reforms), Revenue Department. The order of the
Deputy Collector and Saurashtra Revenue Tribunal is non est
and ought not to have been relied upon. He further submitted that the
Saurashtra Revenue Tribunal directed the Mamlatdar to prepare a
proposal and to forward it.
4. Having
heard the learned Advocate for the petitioner this Court is of the
opinion that the Secretary has considered the evidence on record in
detail and thereafter the rights of the tenant who were cultivating
the land were granted benefits and certificate issued by the lower
authority was upheld. The view taken by the Secretary, (Land
Reforms), Revenue Department is just and proper. The contention of
the learned Advocate comparing the case of the petitioner with other
trust cannot be accepted since the tenancy proceedings against that
trust was terminated in favour of trust whereas in the present case
tenancy proceedings was decided against the Trust.
5. It
is required to be noted that after the order of the Secretary
(Appeals) of 1983, necessary entries were effected in the revenue
records and the land has become non-agricultural land and after the
necessary plotting, number of plots are also sold. Further, the
petitioner has not challenged the orders of revenue entries permitted
under Section 65 of the Code. The finding of the Collector is that
looking to the area and location of the land in question, it is not
in public interest to give the land on tenancy basis. Learned
Advocate for the petitioner is not in a position to controvert the
findings of the lower authority.
6. Hence,
the petition is devoid of merits, no interference is required to be
made with the impugned order. Accordingly, the petition stands
dismissed. Interim-relief, if any, stands vacated.
7. At
this stage, learned Advocate for the petitioner has requested to
continue the interim relief. However, looking to the facts and
circumstances of the case it will not be appropriate to continue the
same and therefore the interim relief is not extended.
8. In
view of the disposal of main matter, Civil Application No.6603 of
2010 seeking vacation of interim -relief is not required to be
entertained and stands disposed of accordingly.
(K
S JHAVERI, J.)
sompura
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