Cannot Regularize Encroachment by Protecting Petitioner’s Possession: Gujarat High Court

- Advertisement -

Brief facts

The forefathers of the Petitioners were given the land in question for agriculture purpose under the “Ek Saali” lease in the year 1945−46 and since then the land in question was in possession of the forefathers of the Petitioners. It is the case of the Petitioners that a lot of improvements have been done for use of the land in question for agriculture operations since then and as per the conditions, the vegetables produced on the land in question were sold only for the citizens of Ahmedabad. The period of the “Ek Saali” lease was extended from time to time and the rent was also paid regularly and thereafter on 18th October 1954 the land in question was given permanently to the forefathers of the Petitioners. The Mamlatdar passed an Order dated 28th October 1954 enhancing the amount of revenue. The land in question was given to the forefathers of the Petitioners on “new tenure”. Ahmedabad Municipal Corporation needed the land for its sewage farm. The state challenged the judgment and decree before this Court by filing First Appeal.

State of Gujarat vide Order cancelled Grant of the land to the Municipal Corporation for sewage purpose because the land was in dispute. The City Mamlatdar, Ahmedabad by letter informed the municipal corporation that the amount of. Rs.68,090/+ would not be permitted to be withdrawn unless the entire land was released from the mortgage. The Circle Officer by Order 1980 cancelled the mutation entry no.1844 upholding the objections of the Petitioners and accordingly the entry was deleted from the revenue records. Thus, the revision application filed by the Petitioners was rejected by continuing the name of Respondent no.6 in the revenue records. Being aggrieved and dissatisfied by the impugned Orders passed by the Deputy Collector, Collector and SSRD, the Petitioners have preferred this petition.

Petitioner’s Arguments

The learned Advocate for the Petitioners Mr Hriday Buch submitted before the Hon’ble Court that the impugned Orders are passed relying upon the Order of Grant ignoring the subsequent development. It was further submitted that none of the authorities considered the undisputed fact that the Municipal Corporation never fulfilled conditions mentioned in the Order of Grant 1955 concerning the payment of compensation to the Petitioners and therefore when the Grant itself was conditional and the conditions have not fulfilled the name of the Corporation cannot be mutated in the revenue records. It was submitted that the Mamlatdar has rightly cancelled the Order of mutation of entry no.1844 relying upon the memorandum, it is specifically stated that the Order qua the land in question stands cancelled. It was, therefore, submitted that when the suits filed by the Petitioners, as well as, Municipal Corporation are pending before the Civil Court, no interference could have been made by the authorities after 25 years by quashing and setting aside the Order passed by the Mamlatdar in the year 1980. It was further submitted that even in the land acquisition proceedings, the Petitioners were awarded the compensation, which has been finalized till the Apex Court and it was, therefore, pointed out that all the authorities below have ignored such facts. It was submitted that admittedly the Order of the Mamlatdar was passed in the year 1980, which continued on the date of filing of the suits by the Petitioners, as well as, Municipal Corporation in the year 2005 and therefore, the authorities could not have altered the situation by quashing the Order of the Mamlatdar passed in the year 1980. It was, therefore, prayed that the impugned Orders are required to be quashed and set aside subject to the outcome of the civil proceedings pending before the Civil Court.

Respondent’s Arguments

- Advertisement -

The learned advocate for Respondent Mr Maulin Raval submitted before the Hon’ble Court that there are disputed questions of fact which in turn would require detailed fact-finding inquiry and leading of evidence, which is not permissible under the extraordinary writ jurisdiction of this Court and as such the petition is required to be dismissed. It was submitted that Grant in favour of the forefathers of the Petitioners was only based on the “Ek Saali” lease i.e. land given for cultivation only for one year as such the period of allotment is short one subject to terms and conditions. It was pointed out that the land was allotted only for the limited purpose of agriculture and after completion of one year; the same was required to be handed over back to the State. It was further submitted that according to the exchange of various communications, the communication from the Revenue Department provides an Order to cancel the land granted to the municipal corporation. It was pointed out that the Collector had also decided the compensation amount for the land in question aggregating to Rs.2,50,000/− to be paid to the Petitioners vide communication dated 3rd May 1990, which was never challenged by the Petitioners. It was submitted that the Circle Officer, who passed an Order has no jurisdiction to cancel the mutation entry and as such the Order was honest, ab−initio void and nullity. It was submitted that the provision of Chapter 10A of the Code is not followed and the exercise of the powers for cancellation of the revenue entry was without jurisdiction. It was, therefore, submitted that the impugned Orders are passed quashing the Order cancelling the revenue entry no.1844 are under the law as the same is subject to the outcome of the civil proceedings between the parties and therefore, no interference is required to be made in the facts of the case.

Court’s Observations

Regard was paid to the submissions advanced by the learned advocates for both the Petitioners as well as the Respondent.

Kandala Press and Oil Mills Pvt. Ltd., Vs. State of Gujarat, in which it was decided by the honourable Court on 29th August 2008 that the possession of the Petitioners for more than 34 years cannot regularize the encroachment by protecting the possession of the Petitioners in the said case has been taken into consideration by the honourable Court.

Court’s Decision

- Advertisement -

In the light of the submissions put forth by the learned counsel for the applicant, the Court held that the petition succeeds and is accordingly allowed. The impugned Orders passed by the Special Secretary (Appeals) Revenue Department, Collector, Ahmedabad and Deputy Collector, Ahmedabad City respectively are hereby quashed and set aside and the Order passed by the Mamlatdar cancelling the revenue entry no.1844 is restored however, the same would be subject to the outcome of the pending civil proceedings before the City Civil Court, Ahmedabad. The rule is made absolute to the aforesaid extent. No Order as to costs.

Click here to read the Judgement.


Libertatem.in is now on Telegram. Follow us for regular legal updates and judgments from the Court. Follow us on Google NewsInstagramLinkedInFacebook & Twitter. You can also subscribe to our Weekly Email Updates. You can also contribute stories like this and help us spread awareness for a better society. Submit Your Post Now.

- Advertisement -
- Advertisement -

LEAVE A REPLY

Please enter your comment!
Please enter your name here

This site uses Akismet to reduce spam. Learn how your comment data is processed.

About the Author

- Advertisement -
- Advertisement -spot_img