Dismissed

Biharidan Jivabhai Gadhvi v. State of Gujarat

Gujarat HC30 Jun 2021LPA/1249/2014

Case brief

AI extract

What is this about?

Gauchar land allotted to a serving IPS officer for coconut plantation remained outside the Government waste-land policy. The court upheld cancellation of the allotments, found fraud and breach of public trust, and dismissed the appeal with costs, directing restoration to the Gram Panchayat and payment of mesne profits.

What did the court decide?

Restoration of the land to the Gram Panchayat within six months; mesne profits until dispossession, divided equally between the Panchayat and State Revenue Department; costs.

Biharidan Jivabhai Gadhvi Vs State of Gujarat — Property and Title | Gujarat HC (2021)

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C/LPA/1249/2014 CAV JUDGMENT DATED: 30/06/2021 BIHARIDAN JIVABHAI GADHVI, IPS v. STATE OF GUJARAT & Anr

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/LETTERS PATENT APPEAL NO. 1249 of 2014

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R/SPECIAL CIVIL APPLICATION NO. 2248 of 1992

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FOR HON and	APPROVAL AND SIGNATURE: OURABLE DR. JUSTICE VINEET KOTHARI	Sd/-
HON ====	OURABLE MR. JUSTICE B.N. KARIA ====================================================	Sd/- ==========
1	Whether Reporters of Local Papers may be allowed to see the judgment ?	YES
2	To be referred to the Reporter or not ?	YES
3	Whether their Lordships wish to see the fair copy of the judgment ?	YES
4 ====	Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? ====================================================	YES ==========

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BIHARIDAN JIVABHAI GADHVI, IPS

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Versus

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STATE OF GUJARAT & 1 other(s)

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================================================================== Appearance :

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MR S.N. SHELAT, Senior Counsel with

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MR HRIDAY BUCH, Counsel and

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MR SHITAL R PATEL, Counsel for the Appellant(s) No. 1

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MR SOAHAM JOSHI, Assistant Government Pleader for the Respondent Nos. 1 & 2

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==================================================================

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CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI

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and

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HONOURABLE MR. JUSTICE B.N. KARIA

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Date : 30/06/2021

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CAV JUDGMENT

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(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)

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The present Letters Patent Appeal is directed against the order dated 13.10.2014 of the learned Single Judge (Coram: Rajesh Shukla, J.) dismissing Special Civil Application No. 2248 of 1992 filed by the Appellant / Petitioner.

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The learned Single Judge was pleased to dismiss the writ petition in the second round of litigation by the Petitioner in respect of the land situated in Survey Nos. 550 and 552 , admeasuring 68 acres in Village: Magod, Taluka & District: Valsad.

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The Petitioner claimed the allotment of the said land for growing Coconut Plants under the State Government Scheme of 1965, vide Notification dated 20.03.1965 claiming himself to be an Ex-serviceman, having served in Army as Captain, between 1965 and 1973 and upon being released from the Army, he joined directly as an IPS Officer and was posted as Deputy

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C/LPA/1249/2014 CAV JUDGMENT DATED: 30/06/2021 BIHARIDAN JIVABHAI GADHVI, IPS v. STATE OF GUJARAT & Anr

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Superintendent of Police, Bulsar at the relevant point of time of allotment of the said land to him under 1965 Policy under the order of the District Collector, Valsad ( Ms. Mrudulaben Vashi, IAS ) dated 05.12.1981 giving a lease of 20 years land admeasuring 8.29 acres in Survey No.550 and then another lease of 8.04 acres land in Survey No.552 vide another order dated 27.01.1982 . Later on a Permanent Lease was made by another District Collector ( Mr.Praful Kumar Thakkar, IAS ) on 11.05.1987 for both these parcels of land in favour of the Petitioner / Appellant.

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The said allotment was made upon a Resolution of Magod Gram Panchayat dated 22.11.1980 to the effect that it has no objection if the land in question was granted in favour of the Petitioner and the Gram Panchayat would not require any compensation for the same. It may be noted here that the land in question was Gauchar (grazing) land as recorded in the Revenue records and was transferred to the Gram Panchayat itself in pursuance of the order of the Mamlatdar vide Order No. 4-PSR/67 dated 21.09.1953 in pursuance of the order of

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BIHARIDAN JIVABHAI GADHVI, IPS v. STATE OF GUJARAT & Anr

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District Deputy Collector No. LND/W.S.391 dated 14.09.1953 and the revenue entry for the said Transfer in favour of Magod

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Gram Panchayat for Survey Nos.467, 490 (with which this case is not concerned) and Survey Nos.550 and 552 (involved in present case) was recorded as under:

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“Record of Right (Village Form No.6)

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Village: Magod,

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Taluka: Bulsar

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Serial	Nature of right	Survey	Signature or
No. of		No. and	remarks of
the		Pot-	the
entry		Hissa No. of the land mutated	Inspecting Officer
	*Date: 10.11.1953*	467	Certified.
	*Transfer*.	490	Sd/-
	The land shown in the margin was*running as* *Gauchar*. But as per the G.R. of the Government, since the said land is to be entrusted to the Gram	*550* *552* (Four)	Extra Aval Karkoon. 8.1.1954 Bulsar. Resolution of the
	Panchayat, as per the		Government
	order No.*4-P.S.R./67*		No.251 /
	*dated 21.9.53 of the*		9.6.50.

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BIHARIDAN JIVABHAI GADHVI, IPS v. STATE OF GUJARAT & Anr

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*Mamlatdar*, pursuant to
the order
No.*L.N.D./W.S.* *391*
*dated 14.9.1953*of the
District Deputy
Collector, *entry is*
*effected* *regarding*
*handing* *over* of
*possession of the said*
*land together with trees*
*and roads existing*
*therein*.

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Sd/Sd/- Illegible Police Patel Talati

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Copied from the original.

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Sd/- Illegible Talati-cum-Mantri, Magod, Taluka Bulsar.”

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The problem arose when the said allotment in favour of

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the Petitioner was recalled and revoked by a suo motu order dated 09.09.1991 of the Principal Secretary on the ground that

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the allotment of land to the Petitioner was not in accordance

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with 1965 Policy of the Government, nor the Gauchar (grazing)

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land could be so allotted to the Petitioner who failed to satisfy the criteria of person being Below Poverty Line, as he was IPS Officer directly appointed as Deputy Superintendent of Police after being released from Army nor the Gauchar land could be so allotted as ‘ Government Waste Land ’. The relevant extract of the order dated 09.09.1991 setting aside the Collector’s allotment orders dated 05.12.1981, 21.01.182 and 11.05.1987 is also quoted hereinbelow for ready reference:

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“5. The Court declared that the Gauchar land is meant for certain animals of the village. The farmers of weaker sections possess meagre land. For their cattle, they cannot afford to grow grass . They have no resources to purchase grass from the market. They solely depend upon Gauchar land . If the Gauchar land is taken away, in a long run, the strength of animals will be required to be reduced. Therefore agricultural produce will be adversely affected. As per the principles of natural justice, the Collector ought to have invited suggestions from the village people by publishing a public notice in the village before taking the land from the Gauchar. Honestly, an opportunity of making representations

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was required to be given to the people; and decision ought to have been taken after hearing them.

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6. Looking to the case papers, it appears that he has not taken trouble of following any such procedure. By accepting the demand of the head of police department of his District, the land has been given by ignoring the law . After the land is granted, it would be too much to expect anybody from the village to make an application against the police head of the District. The Collector ought not to have taken such a decision. Looking to the case papers, it appears that he has not taken into consideration the questions as to the number of cattle in the village the area of Gauchar land and what would be the effect on the economic and social conditions of the village if the said land is taken away?

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7. The Court further observed that even if the Collector had thought it fit to grant land for growing coconut tree, even then it was necessary to invite applications for that purpose . There is a provision to grant land on lease for growing coconut-trees. There is no policy of granting land on permanent basis . The Collector is required to act as per the instructions of the State. The State has given

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BIHARIDAN JIVABHAI GADHVI, IPS v. STATE OF GUJARAT & Anr

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instructions to grant land for growing coconut-trees only to the residents of village. Shri B.J. Gadhvi was never residing in village Magod. He has no agricultural land in village Magod . The State had not permitted to grant land to the person belonging to a place situated out of the Taluka. Therefore, the order of giving land on lease itself can be said to be null and void order on the face of it. It can be set aside at any time, to which no period of limitation is applicable. The High Court of Gujarat has laid down principles of law in its judgment rendered in Special Civil Application No.237 of 1977 on 21.1.1983 . The Court declared that the instructions is to give priority to the persons retired from Army, in the matter of allotment of land for agriculture. But no instruction has been given to the Collectors to give priority to the Ex-Army men in the matter of giving land for growing coconut-trees . If the land is not required for the purposes of the State or for any public purpose and if the same is suitable for agriculture, then by preparing a list of such lands, permission of the Collector is required to be obtained. Thereafter, the Prant Officer is required to invite applications by publishing a public notice . In case any application from the Ex-Army men is

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received for such land, the Prant Officer can give priority to such application. The Collector has not been asked to grant land by inviting the applicant to make an application . The decision to grant land on lease for growing coconut-trees on permanent basis is beyond his power. It is inconsistent with the policy declared by the State . Such a decision can be said to be void ab initio . There is no bar of period of limitation for cancelling such a decision. It is difficult to believe that the applicant was not aware of this policy. Moreover, after 1.4.1981, the persons who are Ex-armymen, their annual income is required to be taken into consideration before giving land . Considering the limit of income, he was not eligible to obtain agricultural land. The order dated 11.5.1987 passed by the Collector can be said apparently to be erroneous, contrary to law and without jurisdiction. It cannot be accepted . From the point of view of propriety, he ought not to have demanded land in the district other than the District of which he is a resident.

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ORDER

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The orders of the Collector, Bulsar dated 5.12.1981, 21.1.1982 and 11.5.1987 are considered

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to be contrary to law, improper and void ab-initio and are hereby set aside. The Collector is directed to take the land back .

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Pronounced, signed and sealed in the open Court and then despatched.

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By order and in the name of the Governor of Gujarat.

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Sd/(V.S. Sinha) Principal Secretary, Revenue Department (Appeal), Government of Gujarat, Ahmedabad.”

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The full extract of the Government Policy vide

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Government Resolution No. LND.3904/51835-A dated

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20.03.1965 are quoted below for ready reference:

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“G.R. No.LND. 3904/51835-A, dated 20^th March 1965

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Lands:

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Grants of Government waste for Coconut and Arecanut Plantation

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The question of granting leasing Government waste land for coconut and Arecanut plantation

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was under the consideration of Government for some time past. Government has now decided as under:-

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(1) Government waste land was not fit for cultivation as well as which has been reclaimed or which can be reclaimed may be granted for coconut and arecanut plantation .

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(2) The land may be granted upto 20 acres in each individual case . If the grantee has already got other land, the limit of 20 acres shall apply to the total of the land already in his possession and the land to be granted to him. If on application of the above limit of 20 acres, the applicant is entitled to get an area less than 5 acres, he may be granted 5 acres of land in relaxation of the overall limit of 20 acres. In any case, the total holding shall not exceed the ceiling . The cases in which any person wants to have a larger enterprise and wants more land, should be submitted to Government for orders .

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(3) Inter-cultivation of crops will be permissible in the land granted for coconut and arecanut plantation.

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(4) Before the land is granted the Director of Agriculture shall certify regarding the suitability of

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the land for plantation.

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(5) The land shall be given to such cultivators who have got interest and aptitude for such plantation and amongst them the priorities for grant will be as under :-

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(i) The adjoining owners .

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(ii) The displaced persons and the Indian nation as repatriated from African colonies and other foreign countries.

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(iii) Persons residing in and having land at the village .

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(iv) If there are no demands from persons having first and second priorities and there are more other persons demanding the land , it shall be disposed of by public auction after fixing the upset price / upset rent .

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(6) The land will either be granted on permanent basis on lease for a period of twenty years, renewable for a further period of twenty years, renewable for a further period of twenty years. The lease will be allowed to be converted into permanent grant on payment of the prescribed

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BIHARIDAN JIVABHAI GADHVI, IPS v. STATE OF GUJARAT & Anr

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occupancy price . All the grants will be subject to the limit imposed under the Ceiling Act so that the total holding does not exceed the ceiling limit prescribed for the particular local area.

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(7) The lease/grant shall be subject to the following terms and conditions :-

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(i) The land will be brought under successful plantation to the satisfaction of the Collector, within a period of five years, which may be extended by the Collector for a further period upto five years, having regard to the circumstances of the case e.g. the plantation work may have been hampered due to unforeseen circumstances such as famine, floods etc.

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(ii) The land shall be used for the purpose for which it is granted/leased and for no other purposes . (iii) The land shall be granted/leased on new i.e. in alienable and impartible tenure and the grantee/lease shall make plantation in the land personally. To make plantation personally means “to make plantation on one’s own account (A) by one’s own labour or labour of a member of one’s owns family (B) by the hired labour under one’s own supervision or supervision of any member of one’s

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family”.

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(iv) A nominal rent / assessment of Re.1 per annum for or upto 20 acres will be charged for the first five years, the rent / assessment at half the standard rate will be charged for the next five years and thereafter full rent equal to the standard rate fixed for jirayat land for the village/full assessment will be charged. If in the Collector’s opinion, the lessee / grantee has not made sufficient efforts for bringing the land under successful plantation, full rent / assessment will be charged or from the date of the Collector’s order.

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(v) The occupancy price equal to twelve times the full assessment of Rs.50 per acre , whichever is more, shall be charged for granting the land on permanent basis. The grantee may be allowed to pay the occupancy price by installments not exceeding three annual installments, the first installment to be recovered immediately on grant.

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(vi) The grant / lease shall be liable to be revoked / cancelled and the land resumed without payment of any compensation for breach of any of the conditions.

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BIHARIDAN JIVABHAI GADHVI, IPS v. STATE OF GUJARAT & Anr

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(8) The Rural Development Department may be requested to issue necessary orders for extending the benefit of loan under the scheme to all those who take up coconut and arecanut plantation in any area of the entire Gujarat State.

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(9) This issue will be concurrence of the Financial Adviser, dated 30^th January 1965 in the Revenue and Agriculture Department File No.LND.3964/51835A.”

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It would be also interesting to note some portion of the impugned orders of the District Collector who went out of the way to allot the land in question viz. Gauchar land to the Petitioner, an IPS Officer & Deputy Superintendent of Police as if she was in hand-in-gloves with the Applicant under the aforesaid three orders which came to be set aside by the learned Principal Secretary, Revenue Department on 09.09.1991 .

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The first allotment was made on the application dated 20.03.1981 of Mr.B.J. Gadhvi, DSP, Bulsar by Ms.Mrudulaben Vashi, Collector, Bulsar . The relevant part of

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her order dated 05.01.1981 is quoted below for ready reference:

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“The land in dispute is Government Gauchar land of Survey no.550 , admeasuring Acres 8-29 and Survey No.552 Part admeasuring Acre 8-04 gunthas of village Magod, Taluka Bulsar; and has vested in Gram Panchayat, Magod, Taluka Bulsar for administration vide Entry No.595.

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The original native place of the applicant is Muli, District Surendranagar . He does not hold agricultural land at any place in his name. He has rendered service in Territorial Army as a Commissioned Officer between 1965 and 1973 . After he was relieved as a Captain on 1^st February, 1973, he has joined service in the Police Department . The applicant desires to settle and reside in Bulsar .

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The applicant has applied for the land in question for coconut plantation . The Gram Panchayat, Magod, Taluka Bulsar has expressed its willingness to give the land bearing Revenue Survey Nos.550 and 552 of village Magod, Taluka Bulsar without compensation to the Government , vide its Resolution No.5 dated 29.11.1980 ; and has

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BIHARIDAN JIVABHAI GADHVI, IPS v. STATE OF GUJARAT & Anr

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stated that it has no objection or difficulty whatsoever in that behalf.

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In this case, the District Agriculture Officer, District Panchayat , Bulsar, vide his letter No. Agriculture/coconut/Te/14/Vashi-611/81 dated 10.4.1981 has rendered his opinion to the effect that there is nothing wrong if the Gauchar land is granted for plantation of coconut-trees .

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Accordingly, after resuming land of Government Gauchar bearing Survey no.550, admeasuring Hectare 3-53-09 , assessed at Rs.10.00 of village Magod, Taluka Bulsar by the Government under section 96(4) of the Gujarat Panchayat Act and after cancelling the head as Gauchar land under section 38 of the Land Revenue Code and entering it in the head as Government fallow land, the same is ordered to be granted to Shri B.J. Gadhvi, District Superintendent of Police, Bulsar for plantation of coconut trees, on lease of five years at the annual rent of Re.1.00, on new and impartible condition and subject to the following additional conditions .”

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The second allotment order dated 21.01.1982 was also

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passed by the same District Collector Ms. Mrudulaben Vashi, IAS giving another 8.04 acres in Survey No.552 for lease of 20

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years . The relevant of that order dated 21.01.982 is also quoted hereinbelow for ready reference:

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“By giving application on 7.12.1981 , applicant Shri B.J. Gadhvi, District Superintendent of Police, Bulsar has stated that in order to carry on agriculture in economically successful manner, the land already granted is insufficient ; and, therefore, he has requested to grant the entire land applied for, meaning thereby, to grant additional land admeasuring Acres 8-04 of Survey No.552 for lease of 20 years .

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Looking to the papers of this case and the standards of coconut plantation, it appears that additional land requires to be granted ; and the Panchayat has stated that it has no objection if the land is granted.

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Accordingly, in view of the above facts, by resuming the land Survey No.552, admeasuring Acre 8-04 gunthas of village Magod , Taluka Bulsar, by the Government under section 96(4) of the

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Gujarat Panchayats Act and by cancelling the reservation under section 38 of the Land Revenue Code, additional land of S. No.552, Acre 8-04 gunthas is granted to Shri B.J. Gadhvi, District Superintendent of Police, Bulsar for coconut plantations on lease of 20 years, subject to the conditions mentioned in this office Order No.CH/LND/Vashi.2223/81 dated 5.12.1981.

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It is further ordered that the order of this office dated 5.12.1981 by which the land bearing Survey No.550, admeasuring Acre 8-29 gunthas is ordered to be given on lease for five years, may be read as having been amended to mean that the land is given for lease of 20 years .

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Sd/- Illegible (Mrudulaben Vashi) Collector, Bulsar”

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As if the State largess to the Petitioner / Appellant was not enough and in complete satisfaction of his illegitimate greed for the land in absolute manner, on 11.05.1987 , the successor-inoffice of District Collector, Bulsar Mr. Prafulkumar Thakkar obliged the Petitioner Mr.B.J. Gadhvi who continued to be DSP, Bulsar even till then, by converting the 20 years

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Lease, into a Permanent Lease of both the parcels of land viz. 8 acres 15 gunthas of Survey No.550 assessed at Rs.10/- and 8

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acres 4 gunthas of Survey No.552 assessed at Rs.9 and which were given for lease of 20 years of annual rent of Re.1 by earlier two orders was converted into a permanent lease for a paltry sum of Rs.825/- which was happily deposited by the Applicant on 11.05.1987 itself. The relevant part of the said order dated 11.05.1987 is also quoted below for ready reference:

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“ORDER

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The land admeasuring Acre 8-15 gunthas out of Survey No.550, assessed at Rs.10/- and Survey No.552 admeasuring Acre 8-04 gunthas and assessed at Rs.9/- of village Magod, Taluka Bulsar has been granted on lease for a period of 20 years at the annual rent of Re.1/- to the applicant Shri B.J. Gadhvi, District Superintendent of Police, Bulsar for growing coconut trees, vide orders referred to at serial Nos.2 and 3 of the aforesaid preface. In the application referred to at serial No.1 of the aforesaid preface, dated 16.9.1986, the applicant has stated that he has incurred expenses of about Rs.80,000/- towards development of this

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land; and by improving the land, about 650 coconut plants have been grown; and he proposes to grow more coconut plants. Therefore, he has applied for granting this land on permanent basis.

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On getting an enquiry made in this regard, the Deputy Collector, Bulsar in his report dated 5.5.1987 has stated that the facts in connection with the demand of the applicant are as under:

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1) Since the land given for cultivation of coconuttrees was uneven with pits and heaps and was uncultivable, he has got the same levelled by Bulldozer; and torn hedge has been erected surrounding the land. By putting up a farm house in the middle portion of the land, seeds, manure, drugs and agricultural implements are are stored therein. A road is also laid down in order to reach this farm house. For the purpose of irrigation in the land, bore-well has been got erected and an electric motor has been installed. In addition to this, an arrangement for a diesel engine has also been made. Thus, by providing all facilities for cultivation, in all 850 coconut-trees have been grown in the years 1982 and 1983. Since distance between two coconuttrees of 25 feet is required for better growth of the

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trees. In the land admeasuring Acre 16-19 gunthas about 1052 coconut-trees can be grown with better result. In this case, the applicant has already grown 850 coconut trees. During the current year, 200 coconut trees are planned to be grown. In this case, the applicant has made progress in each year.

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2) The applicant has, by providing hedge surrounding the land, road, gate, farm house, borewell of water etc., spent about Rs.1,00,000/- towards cost of development.

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3) The produce begins to yield only after the expiry of about eight years after the plantation of the coconut trees. Income is likely to start after two years hereafter. At present, there is no income.

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Since the land has been improved by developing the land as aforesaid and by spending about rupees one lac, he has rendered his opinion that the land may be granted on permanent basis to the applicant for cultivation of coconut trees and other crops.

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As stated in paragraph 6 of the Resolution No.LND/3964/51835-A dated 20.3.1965 of the Revenue Department of the Government, there is

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provision to give the land on permanent basis on condition of payment of the amount of 12 times the assessment as per paragraph 7(5) or Rs.50/- per acre whichever is more by the applicant . The amount of 12 times the assessment of both the aforesaid survey numbers works out to Rs.228/- , whereas at the rate of Rs.50/- per acre , the price of the land admeasuring Acre 16-19 gunthas works out to Rs.825/- . The applicant has deposited an amount of Rs.825/- (in words rupees eight hundred twenty five only) being the amount of occupancy price, vide Challan No.171/87 dated 11.5.1987 in the Government .

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Accordingly, the land admeasuring Acre 8-15 gunthas out of Survey No.550, assessed at Rs.10/and Survey No.552, admeasuring Acre 8-04 gunthas, of village Magod, Taluka Bulsar which has been granted to the applicant for cultivation of coconut-trees on lease of 20 years , vide orders referred to at serial Nos.2 and 3 of the aforesaid Preface, is granted to Shri B.J. Gadhvi, District Superintendent of Police, Bulsar for cultivation of coconut trees on permanent basis on new and impartible tenure condition and following additional conditions, as he has paid the occupancy

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price as per aforesaid paragraph 6 and paragraph 7(1) of the Government Resolution dated 20.3.1965 .”

¶171

Equally magical and surrendering attitude of Magod Gram Panchayat which agreed to surrender its ‘ Gauchar land ’ in favour of the Petitioner without any compensation or price and which passed its Resolution No.5, kneeling on its knees on 29.11.1980 . The said Resolution No.5 dated 29.11.1980 is also quoted below for ready reference:

¶172

“Resolution No.5

¶173

Application of Shri B.J. Gadhvi (Saheb) (this adjective used in original version in Gujarati in Court but removed in English Translation produced by Petitioner) regarding allotment of land bearing Survey Nos.550 and 552.

¶174

At the meeting held today, it was decided that since Shri B.J. Gadhvi (Saheb) present D.S.P., Bulsar has demanded land bearing Survey Nos.550 and 552 of village Magod, Taluka Bulsar for carrying on agriculture, our Gram Panchayat is willing to give the said land without compensation

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if the same is granted by the Government in accordance with the Government Rules and Regulations; and our Panchayat has no objection or difficulty if this land is given to Shri B.J. Gadhvi (Saheb) .

¶178

Resolution proposed by the President .

¶179

Resolution is passed unanimously .

¶180

Sd/- Illegible Sarpanch, Magod, Taluka Bulsar.

¶181

Sd/- Illegible Talati-cum-Mantri, Village Magod, Taluka Bulsar.”

¶182

The said English translation of the resolution quoted above misses the word ‘ Saheb ’ which was originally produced with the writ petition and which have been included in brackets besides the name of the Applicant in aforesaid quotation. No other Applicant was given such respect, but other similarly situated Ex-serviceman from Territorial Army also applied but same Gram Panchayat Sarpanch objected and even his writ petition being Special Civil Application No. 3468 of 1982 – Ramabhai Sukerbhai Patel vs. Collector was dismissed by the learned Single Judge on

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23.03.1983 . (Coram : S.L.Talati ,J.)

¶186

If the Gram Panchayat, the owner of the land was so eager

¶187

to surrender the land without any compensation in favour of some Saheb, an IPS Officer, who claimed to be an exServiceman and as would be discussed hereinafter that he did not even fit in the criteria of ex-serviceman within the meaning of 1965 Policy, the allotment policy as it was only meant to include those ex-servicemen who wanted to use such ‘Government Waste Land’ for agricultural purposes for their survival and sustenance and not those who got directly into a service as an IPS Officer on the very next day upon being relieved from the Territorial Army which he served between 1965 and 1973. Therefore, it seems prima facie that there are series of illegalities throwing the law and public interest and interest of the Government to the wind and the then District Collector and Gram Panchayat under the influence of the Applicant / Petitioner / Appellant Mr. B.J. Gadhvi were falling over each other to make available that land to the Applicant .

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These very facts and illegalities were noted with great amount of anguish by the learned Single Judge of this Court where he dismissed the earlier Special Civil Application No. 2248 of 1992 filed by the Petitioner / Appellant and the learned Single Judge held that it is nothing short of fraud on public and fraud unravels and unsettled everything founded on such fraudulent claims and therefore, the order of the learned Revenue Secretary dated 09.09.1991 / 07.12.1991 was upheld by the learned Single Judge (Hon’ble Akil Kureshi,J. As His Lordship then was) with the following observations:

¶191

“7. Having heard the learned advocates appearing for the parties, few facts emerging from the record may be recalled.

¶192

7.1 The petitioner after retiring from army service had straightway joined Gujarat Police in the year 1973. Land bearing survey Nos.550 and 552 were gaucher lands allotted to the Panchayat. The Panchayat passed a resolution stating that if such lands are granted to the petitioner, the Panchayat has no objection. In the resolution itself, the petitioner was referred as ' Gadhvi Saheb, the DSP '.

¶193

7.2 The Collector acted upon the application of the

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petitioner for grant of land and the resolution passed by the Panchayat without any further investigation. He did not take into account the Government policy and circulars for grant of land for cultivation of coconut trees . He did not address the question whether the petitioner was eligible for such grant. He did not examine whether the Government policy permitted gaucher land to be granted for such purpose. First order was passed by the Collector on 5.12.81 granting 8 acres and 29 gunthas of land bearing survey No. 550 to the petitioner on lease for a period of 5 years on payment of rent of Rs.1 per year. On a further application petitioner shortly thereafter, 27.1.82 granting further land by the Collector passed further order on of 8 acres and 4 gunthas of survey No.552 and allotting both the lands for a period of 20 years on a token rent of Re.1 per year .

¶198

7.3 The petitioner was not satisfied with the largesee of public property distributed free of cost as if they were private transactions between the Collector and the DSP of the District . He asked for the land on permanent basis claiming that he had already taken much pain and spent large amounts on its development. The Collector, Valsad, who

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happened to be incumbent other than one who had passed the previous orders, once again showed his graciousness by granting Government land to the petitioner on permanent basis. 16 acres and 33 gunthas of land thus was granted to the petitioner on payment of Rs.825/- in all .

¶203

7.4 The Collector did not notice that as the District Superintendent of Police, the petitioner was receiving substantial salary from the Government. The Collector was also not perturbed by the fact that the petitioner was not an agriculturist of Valsad District. Perhaps, he was not an agriculturist at all. These details were of no consequence to the Collector . To him the paramount consideration was that the petitioner was an ex-service man. He did not even address the question as to how the petitioner would be able to cultivate the land personally being in active Police Service of transferable nature. At the relevant time, the Tenancy Laws of the State rigidly prohibited any person from owning agricultural land outside 8 k.m. radius of his other agricultural holding . It also required that the person seeking to cultivate the land personally would do so by having a permanent residence within 16 k.m. of the agricultural land held by him. In general, the

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Bombay and Tenancy and Agricultural Lands Act frowned upon a non-agriculturist owning agricultural land or carrying on agricultural operations as an owner . Be that as it may, the Collector did not even stop for a moment and think as to how a village Panchayat would oppose the wish of the District Superintendent of Police to acquire Government land allotted to the village Panchayat for which grazing purpose. Presently prevailing Government policy provides for the ratio of one acre of grazing land for every 40 heads of cattle in the village . Whatever the ratio prevailed at the relevant time, should the Collector not have posed the question to himself whether after deducting the lands of said two survey numbers was the Panchayat left with sufficient gaucher land to support its cattle population? Admittedly this was not done by the Collector. He was in some kind of hurry to oblige the petitioner .

¶207

8. It was in this background that three orders successively came to be passed in favour of the petitioner which the Secretary (Appeals) found not sustainable which, as already noted above, have been canceled by the impugned after issuance of show cause notice.

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9. I find absolutely no illegality in the order passed by Secretary. In fact, perpetuating the orders passed by the Collector itself would be unpardonable to say the least . None of the grounds raised by the petitioner would convince me to interfere with the order passed by the Secretary (Appeals). I will deal with these grounds individually shortly hereinafter.

¶211

10. At this stage, I only observe that the Collector seems to have passed the said three orders in favour of the petitioner without following any procedure, without following Government policies, without adhering to the requirements of various circulars and with a single minded devotion to ensure that the land which the petitioner could never have claimed be granted to him virtually free of cost. With passing of each order, the action of the Collector became more and more objectionable . With passing of each order, the Collector bend the rules and the procedures further in favour of the petitioner. It is unfortunate that in a country governed by rule of law and bound by the provisions of the Constitution , in which equality of all citizens is one of the basic features, only by

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weight of the position which the petitioner was enjoying, he could secure such orders in his favour . To the various conclusions reached by the Secretary, the petitioner has not been able to dislodge the same. In fact the petition is sought to be maintained mainly on technical grounds. And little has been argued about the merit of the order passed by the Secretary. As already noted, the Secretary found that there was no Government policy to grant land for coconut plantation from the gaucher land. Even while doing so, necessary publicity was required to be given calling for interested individuals to apply and thereafter comply with the priority prescribed in the circular. There was no priority granted to ex-service men in such grant. The Secretary also found that an ex-service man can claim land for cultivation provided his income is not more than Rs.500/- per month. Admittedly, the petitioner was drawing salary much higher than that. Though he disclosed salary of Rs.12,000/- per annum before the Collector, learned Assistant Government Pleader made available a communication from the Pay and Accounts Office, indicating that in February 1982, the petitioner was drawing Rs.2170 per month . The same is taken on record and referred since contents

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thereof are not seriously disputed. Even accounting for some deduction for a year or two, when the petitioner made his application, surely his salary was not Rs.1,000/- per month. In any case, it far exceeded Rs.500/- per month which was the ceiling. On all counts, thus the petitioner could not have been allotted Government land. Perhaps, to circumvent these irritants, the Collector initially granted part of the land to the petitioner on lease for a period of five years . Shortly thereafter, improved the position of the petitioner by granting another parcel of land of 8 acres and 4 gunthas making both the leases for 20 years and thereafter on an application made by the petitioner granted land permanently on payment of meagre sum of Rs.825/- . If the Government land could be divested in such perfunctory manner I shudder to think how the Government would be able to protect any of its properties. If DSP of the District and Collector of the District can join hands and divide Government properties as if they are dealing in private transactions, the Government control over its own properties would come to naught . Such an action of the Collector can never be protected under any circumstances, no matter what technical pleas the

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petitioner may raise particularly when to the conclusions of the Secretary, the petitioner has no satisfactory answer.

¶224

11. I have perused various circulars produced on record. Circular dated 20.3.1965 provides that Government waste land not fit for cultivation as well as reclaimed land or land which can be reclaimed may be granted for coconut and arecanut plantation . Therefore, the petitioner could not have been granted gaucher land for coconut plantation . Clause (5) of the circular reads as sunder:

¶225

“(5) The land shall be given to such cultivators who have got interest and aptitude for such plantation and amongst them the priorities for grant will be as under:-

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(i) The adjoining owners;

¶227

(ii) The displaced persons and the Indian nationals repatriated from African colonies and other foreign countries

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(iii) Persons residing in and having land at the village

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(iv) If there are no demands from persons having first and second priorities and

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there are more other persons demanding the land, it shall be disposed of by public auction after fixing the upset price/upset rent.”

¶234

The petitioner did not fall under any of the above categories . His “aptitude” for such plantation was never inquired into. Respondents have produced consolidated guidelines dated 24.4.1981 for grant of Government land at Annexure R-II with the reply. In that, it is provided that the ex-service man who seeks Government land shall have to give undertaking that after retirement he wishes to sustain himself by doing agriculture and if after the grant of land also, he is found to be earning more than Rs.500/- per month from other sources, land granted to him will be confiscated without any compensation. In the present case, even at the time of applying for land, the petitioner was earning well over Rs.500 per month.

¶235

12. I find that the application made by the petitioner particularly declaring his income of Rs.12,000/- per annum did not contain true disclosures. His income was far more than the said amount as already noted. In any case, such an application could never have been entertained by

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the Collector for grant of gaucher land for cultivation of coconut trees . For the reasons recorded hereinabove, the orders of the Collector were, therefore, vitiated on account of fraud. Application of the petitioner did not contain correct statement of his income. Collector granted the application ignoring Government policy and Rules and Regulations. Grant of land was thus nothing short of fraud on public . It is by now well settled that fraud would vitiate any order and such order can be struck down at any time.

¶239

13. In the case of M/s.Tanna and Modi v. C.I.T. Mumbai XXV , AIR 2007 SC 2301 it was observed as follows:

¶240

“19. It is however, also well settled that fraud vitiates all solemn acts . Fraudulent actions shall render the act a nullity. It would be non est in the eyes of law.”

¶241

13.1 In the case of A.V.Papayya Sastry v. Government of A.P. AIR 2007 SC 1546 , it was observed that once it is established that the order was obtained by the successful party by practicing or playing fraud, it is vitiated. Such order cannot be legal, valid or in consonance with law. It is non-

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existent and non est and cannot be allowed to stand.

¶245

13.2 In the case of Hamza Haji v. State of Kerala , AIR 2006 SC 3028 , the Supreme Court finding that the order of the Forest Tribunal was obtained by fraud, refused to interfere with the order passed by the High Court though earlier the High Court had declined to interfere with the order of the Tribunal on the ground of delay.

¶246

13.3 In the case of State of Andhra Pradesh v. T. Suryachandra Rao , AIR 2005 SC 3310 , it was observed as follows:-

¶247

“10. "Fraud", as is well known vitiates every solemn act. Fraud and justice never dwell together . Fraud is a conduct either by letter or words, which includes the other person or authority to take a definite determinative stand as a response to the conduct of the former either by words or letter. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a

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party makes representations, which he knows to be false, and injury enures therefrom although the motive from which the representations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous . Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. ( See Ram Chandra Singh v. Savitri Devi and Ors., 2003 (8) SCC 319 ).

¶252

14. In view of the above discussion, I do not find any merits in the petition. It may be that the show cause notice was issued in the year 1990. However, orders were passed by the Collector which provided a chain of events. In the year 1981, land bearing survey No.550 was granted to the petitioner on lease for a period of 5 years. In 1982, another land of survey No.552 was granted and the lease period was extended to 20 years. In the year 1987, both the lands were granted on ownership basis. These were

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thus successive orders and not separate orders having independent existence. The orders of 1981 and 1982 thus merged in the order passed by the Collector in 1987. Even if the orders of 1981 and 1982 were left untouched the lease period would have expired in 2002 . Question of delay has to be viewed in the facts of each case. In the present case, when I find that the Collector had wholly unauthorizedly, illegally and perhaps with certain ulterior motive passed orders in favour of the petitioner granting Government land, which grant was based on fraud committed by the petitioner , the action cannot be closed only on the ground of alleged delay which in any case was not serious as to snuff out the Government action.

¶256

15. Reference to communication dated 18.11.81 of the Government can be of no avail to the petitioner . It only indicated that the Collector is competent to consider the application of the petitioner. It did not put any seal on the orders passed by the Collector so that the Government ultimately if found the Collector has committed any illegality, could still not review the order under section 211 of the Code.

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16. The petitioner has with much vehemence contended that large scale improvement has been made by making the investments on the land. He has with the additional affidavit filed figures which, on the face of it, seem highly exaggerated. In an affidavit dated 25.7.2005 he has claimed to have spent Rs.2 lakhs for digging 4 tubewells, Rs.8,12,000/- for construction of farmhouse and servant quarters, Rs.3,85,000 for barbed wire fencing, Rs.7,00,000/- for banana plantation , Rs.1,50,000/- for diesel generating set, Rs.1,50,000/for erecting water reservoir and Rs.50,000/- for purchasing agricultural implements. No supporting documents are provided on record. Before the authority, no such figures were presented. After the authority passed order canceling the grant of land, the petitioner obviously could not have made further improvements. If he did so, it must be at his peril. Before the authorities all that he has stated was that he spent Rs.80,000/- for cultivation and Rs.1 lakh in construction. Even if benefit of such investments is granted to the petitioner, surely, he had prepared an orchard with a view to making profit therefrom . He has enjoyed uninterrupted possession of the land from the year 1981. Even after considering the

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gestation period of nearly a decade, the petitioner would have started earning profit from the fruit bearing trees some time in the year 1992. Thus uptill now he has already reaped the benefits of cultivation of the Government land which from the very outset ought not to have been granted to him. For the investments that he made, he would surely have earned profit. He cannot now turn around and say that for all times to come, even if the initial grant of land was hopelessly illegal, the same should not be disturbed only on the ground that he has made some effort or investment in developing the land.

¶264

17. It is stated that the order travels beyond the show cause notice. I am afraid, the contention cannot be accepted. The show cause notice indicated that the Secretary wishes to recall all the three orders passed by the Collector. Having done that, reclaiming possession of the land is only a natural consequence.

¶265

18. Reliance placed on the Government circulars providing for policy for granting land to ex-service man also would not help the petitioner. The policy on record specifically provides that the land will be granted to ex-service man if it is necessary for his

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sustenance. The petitioner was the District Superintendent of Police of the District. He surely did not require the said land for his sustenance.

¶270

19. In support of ground of discrimination, no specific instances have been pointed out wherein under similar circumstances, land granted to other persons have not been cancelled by the Government . In any case, Article 14 does not talk of negative equality. This principle is too well settled requiring any authority to be cited.

¶271

20. It was stated that sanad once granted could not be cancelled and the ownership of land would vest in the petitioner . When I find that the orders granting the land themselves suffer from material illegalities vitiated on the ground of fraud, the order of the Secretary cancelling such an order cannot be interfered with .

¶272

21. Reference to the order dated 23^rd June 1983 passed by this Court in Special Civil Application No.3468 of 1982 will also not salvage the situation for the petitioner. It was a case where a third party had interest on the same land as an ex-service man. He was found not to be an ex-service man and his

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petition was, therefore, dismissed. While doing so, the learned single Judge expressed his anguish over the manner of granting of granting the land to the petitioner . This has already been noted in the earlier part of the order.

¶277

22. On all counts, I find that the petition fails and the same is dismissed with costs of Rs.10,000/(Rupees ten thousand only) . Rule is discharged. Interim relief is vacated.”

¶278

An Appeal against the said order of the learned Single Judge was preferred by the Appellant / petitioner and that Letters Patent Appeal No.1742 of 2009 came to be disposed of by the Division Bench of this Court ( Coram: Chief Justice S.J. Mukhopadhaya and Justice K.M. Thaker – Per Hon’ble Mr.Justice K.M. Thaker ) and while the Division Bench of the Court, by which the said Special Civil Application No.2248 of 1992 was restored to the learned Single Judge for deciding again by looking into certain aspects of the matter, almost affirmed the findings of the learned Single Judge in the order dated 24.08.2009 , but to have the stand of the Gram Panchayat on

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record and to look into the aspect of the Applicant being exserviceman or not, the Division Bench for the said limited purpose remanded case back to the learned Single Judge and that is how the second round of litigation started.

¶282

The relevant extract of the aforesaid order of the Division

¶283

Bench dated 06.09.2011 in Letters Patent Appeal No. 1742 of 2009 are quoted below for ready reference:

¶284

“8.10 The preamble and the first paragraph of the said Resolution dated 20.3.1965 throw much needed light as to the scope and purpose of the Resolution and the policy of the Government. The preamble and first paragraph of the Resolution read thus:-

¶285

“ G.R.No.LND 3964/51835 A, dated 20^th March 1965

¶286

Lands:

¶287

Grant of Government waste

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(land) for coconut and Arecanut Plantation

¶289

The question of granting leasing Government waste land for coconut and Arecanut plantation

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was under the consideration of Government for some time past. Government has now decided as under:-

¶294

(1) Government waste land not fit for cultivation as well as which has been reclaimed or which can be reclaimed may be granted for coconut and arecanut plantation.”

¶295

[Emphasis supplied]

¶296

8.11 It can be seen from a glance at the said resolution that it is made in respect of “Government waste land” and not “gauchar land (pasture land)” . The resolutions do not refer to and/or do not take into their sweep the “Gauchar land” .

¶297

8.12 Before proceeding further, it is necessary to note that both, the appellant as well as the respondent – State, have made reference of various circulars/resolutions/orders e.g. the Resolutions dated 20.3.1965 (page-213), dated 5.5.1967 (page215), dated 4.8.1971 (page-354), dated 11.11.1966 and dated 6.12.1980 (page-385), dated 27.11.1969 (page-388), dated 19.5.1975, 24.4.1981 (page-389), dated (page-243/R), dated 25.7.1984 (page-451), dated 28.2.1990 (page-382/R) and dated 27.3.2001 (page-380). All of them deal with and are issued for

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the purpose of allotment of, “Government waste land” and not “gauchar land”.

¶302

8.13 Before the learned Single Judge, the appellant had also relied on the Resolution dated 24.9.1981 . Although the said resolution prescribes preference or priority for ex-serviceman, the said resolution also pertains to and deals with “waste land” and also contains conditions related to income of the Ex-army personnel who seeks grant of land . The said resolutions also would not take the appellant's case further in view of the fact that, (a) The resolutions deal with and pertain to “Government waste land” and not the gauchar land ; and (b) at the relevant time, the appellant was in service as District Superintendent of Police and was drawing salary of about Rs.2,170/-; and (c) at that time, he was not resident of the village, but was resident of Taluka Muli, District Surendranagar ; and (d) did not have any agricultural land, and was not an agriculturist.

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8.14 Learned Single Judge has also taken into account another aspect viz. that even otherwise the lease period under the two orders dated 5.12.1981 and 27.1.1982 would have come to an end in 2002 .

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Thus, the said orders have, even otherwise got exhausted.

¶307

8.15 This would leave behind the order dated 11.5.1987 . In that context, it is relevant to note that the competent authority issued the show cause notice, with regard to the Collector's orders, in October-1990. Thus, if the date and period of notice is considered in juxtaposition, then, it comes out that the time-gap is of about 3 years and 5 months . In view of this fact, the appellant had challenged the order dated 7.12.1991 and the said notice on the ground of delay. The learned Single Judge has rejected the contention on the ground that fraud vitiates any order and that therefore, such order can be set aside at any time.

¶308

8.16 Now, if the aspect of the conversion of lease into permanent allotment is examined, it is true that the provision under the said resolution dated 20.3.1965 does provide for such conversion, however, the said resolution also pertains to and deals with only “Government waste land” . The respondent would, therefore, contend that the clause which provides for such conversion cannot be used and exploited or taken shelter of, for granting

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Gauchar land and then converting lease of Gauchar land into permanent allotment and that the conversion was granted by the Collector under his order dated 11.5.1987 , though the Government had, vide Circular dated 25.7.1984 (page-451) made it clear that the allotment-grant of Government waste land on permanent basis cannot be made without prior sanction and permission of Government . The learned Single Judge has also noticed and held that the resolutions/circular were not followed or were followed in breach only.

¶313

9. The learned Single Judge has observed that the policy or guideline for allotment have not been followed since on the strength of the said Resolutions, Gauchar land could not have been granted to the appellant. In this context, in para-7 of its reply affidavit, the respondent – State is also relevant . It is stated therein that:-

¶314

“I say that the purpose of issuing the said Government Resolution dtd 20-3-65 was for granting government waste lands for coconut & arecanut plantation and therefore what can be granted for the plantation of coconut is only Government waste land as mentioned therein the said government resolution. No Gauchar

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land (Grazing) could be granted for the said

¶319

purpose of coconut plantation . In the provisions contained in the para 5 of the said Government Resolution, it is very specifically mentioned how the priority is to be given for granting of such waste lands for the said purpose...”

¶320

9.1 Having regard to the said aspects and particulars of the Resolutions, the learned Single Judge has held that the grant of lands in question, which are Gauchar land, was and is unauthorized, and the said resolutions could not have been taken recourse of and/or could not have been relied on and used for allotting or granting Gauchar land to the appellant either as ex-serviceman or as ordinary citizen.

¶321

9.2 Having regard to the aforesaid aspects and details, the learned Single Judge found and held that the grant is unauthorized and the Gauchar land and that too the lands which were assigned to Panchayat could not have been granted by the Collector with invocation of and/or by relying on the two resolutions.

¶322

9.3 It is pertinent to note that the aforesaid

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conclusions were arrived at in light of the details and material obtaining on the record before the learned Single Judge .”

¶327

However, the reason of remand by the Division Bench to the learned Single Judge despite aforesaid clear affirmative of his findings was for the reasons contained in paras 11 and 12 which are also quoted below for ready reference:

¶328

“11. However, it also emphasis the need for verification of what is stated by the Collector in his letter dated 29.11.1983 (e.g. veracity of the details mentioned by the Collector vis-a-vis the details in revenue record and whether any further and subsequent correspondence on the said count had ensued or not etc.) since the Panchayat's – or for that matter even State's – denial or even confirmation is not available on record. It may also be necessary to address the issue as to whether the alleged non-use of land as gauchar land, would have any relevance and bearing in light of the scope and effect of the resolutions which permit grant of only Government waste land and do not contemplate grant or allotment of gauchar land. The said and other aspects may have to be addressed for deciding

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the controversy.

¶332

11.1 The response of the Panchayat on this count is not on record . Besides the revenue–land record, it is the Panchayat, who can confirm or deny the factual aspect, i.e. as to whether, at the relevant time, the land in question was used as Gauchar land or not. The exact clarification as regards the position in the

¶333

revenue record, immediately prior to the appellant's request for grant, though relevant for deciding the controversy is also not available on record.

¶334

11.2 The said two aspects namely , (a) that the land was not being used as Gauchar land; and (b) the land was not granted as an ex-service man to the appellant, would require response from the Panchayat and from the Competent Authority .

¶335

11.3 Besides this, it would also require further and detailed verification (of the aspects stated in the Collector's letter dated 27.11.1983), more so, when the respondent – State in its affidavit has also stated that the Collector's said reply dated 29.11.1983 is made to justify its earlier orders. The said affidavit, however, unfortunately does not deal with the aforesaid factual aspect mentioned in the Collector's

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reply. Even otherwise, the factual aspects would require response from Panchayat.

¶339

12. For the aforesaid reasons, we are of the opinion that instead of examining the said factual aspects at this stage, i.e. in appeal, it would be appropriate to remit the matter to the learned Single Judge for examining the aforesaid and other connected issues , because it would not only be appropriate, but also necessary, that the matter may be considered, in light of the said additional details (i.e. the details and material which came to be placed on record of appeal) by the learned Single Judge so that in case of need for further details, it can be called for and both sides may get opportunity to deal with the factual side of the issue.

¶340

12.1 We are also of the view that in the facts of this case, it would be appropriate, since factual aspects are required to be examined, that they may be examined and dealt with before the learned Single Judge instead of before the Division Bench (i.e. at appeal stage) so that the opportunity of either side may not be lost. The learned Single Judge can, upon examining relevant material, and if need be, after calling for further details or explanation from the

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Panchayat and the State, take appropriate fresh decision and pass appropriate order. Hence, following order is passed. In view of the foregoing discussion and on taking into account the appellant's affidavit dated 13.8.2010 , the earlier order dated 21.9.2010 by the Division Bench, the Collector's letter dated 29.11.1983 and the respondent's affidavit dated 2.11.2010 , the matter is remitted to the learned Single Judge . Thus, the judgment and order dated 24.8.2009 would not survive. The learned Single Judge may, if need be, call for such other and further details as may be necessary and upon considering such material – replies as may be placed on record by both sides, pass appropriate orders as may be justified and appropriate in the facts of the case. The appeal stands disposed off accordingly.”

¶345

Upon this remand, another learned Single Judge (Coram: Rajesh Shukla, J.) again dismissed the writ petition vide order dated 13.10.2014 against which the present Letters Patent Appeal No.1249 of 2014 arising from the same Special Civil Application No.2248 of 1992 is now being heard and disposed of by us.

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We were informed by the learned counsel that after the remand by the Division Bench under the order dated

¶349

06.09.2011 , the Gram Panchayat did not file any reply counter and the Petitioner only filed an Affidavit dated 08.04.2013 before the learned Single Judge and an Additional Affidavit dated 07.02.2014 on behalf of Respondent No.2 was filed by the Additional Collector Mr. I.J. Mali again Affidavit dated 12.03.2014 of Mr. B.J. Gadhvi along with which the reply of the Gram Panchayat to the RTI Applications by a third party and of the Petitioner were placed on record. Our attention was drawn to the reply of the Talati-cum-Mantri, Magod dated

¶350

20.09.2011 to one Mr. Rajendra C. Khadia, Valsad and another reply of the same Talati-cum-Mantri dated 15.04.2014 addressed to Mr.B.J. Gadhvi, Petitioner / Appellant to show that the land in question was not being used as Gauchar land and on some parts thereof, the government houses were constructed. However, no reply Affidavit of the Gram Panchayat came forward to be placed before the learned Single Judge after the

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aforesaid remand by the Division Bench.

¶354

The learned Single Judge again dismissed the writ petition being Special Civil Application No.2248 of 1992 with the following observations:

¶355

“9. It is this judgment and order which was carried before the Hon’ble Division Bench by way of Letters Patent Appeal No.1742 of 2009 in Special Civil Application No.2248 of 1992 and the Hon’ble Division Bench (Coram: Hon’ble the Chief Justice Mr. S. J. Mukhopadhaya and Hon’ble Mr. Justice K. M. Thaker) vide order dated 06.09.2011 has only remanded the matter back to the learned Single Judge for reconsideration based on the verification of the details. Therefore, it is in this background, it is required to be considered that whether there is any substance in the petition. These aspects which have been referred in the order of the Hon’ble Division Bench which learned Senior Counsel Shri Shelat submitted for consideration, do not require much elaboration. Admittedly, as discussed in the judgment of the earlier Bench as well as referred in the affidavit-in-reply it was a gaucher land and it has been in fact allotted to the Maghodh Gram

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Panchayat. It is also required to be mentioned at this stage that there is reference to other litigation by way of Special Civil Application No.3468 of 1982 and the same was disposed of by the High Court and the allotment of the land in question to the Panchayat was sought to be challenged which was dismissed.

¶360

10. The relevant resolutions/notifications including the Government Resolution dated 20.03.1965 as well as the other resolutions are also produced on record. It is required to be noted as produced with the further affidavit-in-reply filed on behalf of the government as Annexure-R-I, the petitioner is said to have declared stating that he desires to be an agriculturist and he has also stated his income as Rs.12,000/- per annum , which is contrary to the record observed in the order passed by the High Court ( Coram: Hon’ble Mr. Justice Akil Kureshi, J. ) in its judgment and order passed in Special Civil Application No.2248 of 1992 dated 24.08.2009 . This itself suggests about the attitude and mentality of the petitioner that he adhered to the false declaration, which in turn was not even verified by the Collector. The Collector did not even bother to verify, when it is clearly stated that he is ex-service

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man then entirely he would be getting some amount or pension coupled with the fact that the petitioner had been serving as DSP of the District. There is specific reference in the affidavit-in-reply filed on behalf of the government that even the government waste land can be granted for cultivation only with the prior approval of the government (25.07.1984 circular) and the Collector seems to have totally been oblivious of the fact or the government policy and the procedure. Even the village form refers to this land was pasture land as stated in the entry No.594 produced on record . Reliance placed by the learned Senior Counsel Shri Shelat on the communication and correspondence and particularly the letter dated 29.11.1983 addressed by the Collector, Valsad to the Secretary, Revenue Department is also that he has certified and observed that the order of allotment of the land on lease to the petitioner DSP, Valsad is quite proper which may please be noted. However, he further referred to the communicated dated 22.07.1986 again addressed from the Collector, Valsad to the Secretary, Revenue Department, which records that the Government is not supposed to take any action in the matter and therefore, it is requested to return

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the relevant papers to this office . Thus, it reflects the manner in which the Collector has arrogated either directed or impressed the Secretary, Revenue Department as to what to be done and he taken the decision that the government is not supposed to take any decision in the matter.

¶368

11. At this stage, therefore considering the submissions, it hardly leave any doubt about the manner in which the transaction has been taken place, which could be said to be fraud on the government in connivance with the Collector made by the petitioner . A useful reference can also be made to observations made in a judgment of the Hon’ble Supreme Court reported in AIR 2005 SC 3310 in the case of State of Andhra Pradesh Vs. T. Suryachandra Rao , with regard to the fraud, which has also been referred to hereinabove and quoted earlier by the High Court in its order passed in Special Civil Application No.2248 of 1992 dated 24.08.2009 .

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12. Therefore, considering this background of facts and considering the observations made by the Hon’ble Division Bench to reconsider the same based on the details, it can hardly be said that the

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impugned order is not justified. In fact, the order passed by the Secretary (Appeals), Revenue Department at Annexure-L after the show-cause notice is just and proper and it does not call for any interference and the present petition deserves to be dismissed and accordingly stands dismissed .

¶373

FURTHER ORDER

¶374

After the order was pronounced, learned Advocate Shri Shital R. Patel has requested for stay of the implementation , execution and operation of the order. However, in the interest of justice, the same is refused .”

¶375

The present Appeal is directed against the aforesaid order of the learned Single Judge.

¶376

Mr. S.N. Shelat, learned Senior Counsel with Mr. Hriday Buch, learned Counsel submitted that the learned Single Judge has erred in rejecting the writ petition on the same line as was done by another learned Single Judge on 24.08.2009 without any fresh adverse material brought on record by the Respondents and since the land in question was no longer used

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as Gauchar land after 1953 when the land was transferred in favour of Magod Gram Panchayat, it was validly and legally allotted in favour of the Appellant / Petitioner for consideration and there was no mala fide in the allotment of the said land to the Appellant / Petitioner for growing Coconut trees and the Petitioner / Appellant has spent huge amount in levelling the land in developing the said farm of Coconut trees and therefore, the land could not have been resumed by the State cancelling the permanent lease in favour of the Petitioner / Appellant and thus, the impugned order of the learned Principal Secretary, Revenue Department dated 09.09.1991 / 07.12.1991 as well as the order of the learned Single Judge impugned in the present Letters Patent Appeal dated 13.10.2014 deserve to be set aside and the allotment of the land in favour of the Petitioner as well as permanent lease deserve to be confirmed.

¶380

On the other hand, Mr. Soaham Joshi, learned Assistant Government Pleader supported the impugned orders of the learned Secretary as well as the learned Single Judge and urged

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that the Petitioner / Appellant was not even entitled to get the said allotment under 1965 Policy as he was neither a bona fide agriculturist nor a bona fide ex-serviceman entitled to such allotment of land in the category of ex-serviceman as he was also in Territorial Army only vide first order of Collector in his favour dated 05.01.1981 itself and also as the land in question which was wrongly converted as ‘government waste land’ in place of Gauchar land by the learned District Collector and therefore, such an allotment was void ab initio and therefore, the present Letters Patent Appeal also deserves to be dismissed by this Court. The learned Assistant Government Pleader further submitted that the Petitioner being in service as an IPS Officer and working as Deputy Superintendent of Police could not be said to be a person earning below Rs.500 per month and therefore, in the category of ex-serviceman under 1965 Policy, he would require such agricultural land for Coconut tree plantation for his sustenance and survival within the four corners of 1965 Policy and nor any public auction was held to give the said allotment of public land as required in clause 5(iv)

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of the Notification dated 20.03.1965. He submitted that the Petitioner / Appellant did not satisfy any of the criteria of the eligibility for allotment of the said land in his favour and therefore recall and setting aside of the orders and lease given by the then District Collectors, by the Principal Secretary was justified.

¶387

Having heard learned counsel for the parties at length and upon perusal of all the documents and history of the litigation, we are rather baffled by the criminal conspiracy of the Applicant and the then District Collectors to grab the public land at almost zero value throwing the policy decision of the State Government of 1965 and all other norms and even commonsense to the wind and the collusion of the Applicant and the then District Collectors speaks volumes in the chain of events in the contemporary period of 1981 to 1987. Such a fraud played on the public property by the two senior bureaucrats holding responsible positions in the government is nothing less than a theft of public property and that too by a person who claims to

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be served by Indian Army between 1965 and 1973, a most prestigious institution in the county and the very designation of an ex-serviceman, which infuses a sense of proud and salutation was almost killed by the manner in which he successfully grabbed the public land of around 16 acres which may have market value now worth crores of rupees for Rs.852 in 1981 . Surely, the District Collector Ms.Mrudula Vashi, an IAS must be definitely out of her wits or under undue influence or in criminal conspiracy with the Applicant to pocket and partner the fruits of the Government Gauchar land under the name and guise of Coconut tree plantation by the said impugned allotment and permanent lease given in his favour. The same District Collector appears to have sent a Justification Note for the said allotment vide her letter dated 29.11.1983 to the Deputy Secretary of Revenue Department. In our opinion, the learned Principal Revenue Secretary was perfectly justified in discussing of the facts in detail, non-eligibility of the Applicant to get the said land allotted to him and then set aside the orders and lease of land given by the learned District Collector dated

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05.12.1981, 21.01.1982 and 11.05.1987 .

¶394

In our considered opinion, it is a fraud played by the Applicant / petitioner and complete breach of public trust which the District Collector committed under the impugned orders and lease given to the Applicant / Petitioner. The Resolution No.5 of the Gram Panchayat dated 29.11.1980 adds insult to the injury, when it goes down on its knees and says it has no objection to give away public land of 16 acres to Mr.B.J. Gadhvi Saheb and does not require any compensation for the same, forget the cattle and animals for whose grazing and food for their survival itself dependend on the maintaining the land as Gauchar land by the Gram Panchayat. We fail to understand how the public institution like Magod Gram Panchayat and District Collector in this glaring example of mischief by collusion of Applicant and such public authorities, still has life in it, thanks to the long annals of litigation in our judicial dispensation.

¶395

The institutional weakness allows strong muscle man

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without merit to occupy the realm and prevail over such officials to bend rules and give away public property to such miscreants. We are equally pained by the manner in which the litigation for retaining such illegally acquired land is being fought by the Petitioner / Appellant, who is now about 82 years of his age and he even briefly appeared on screen in his Lawyer’s Chambers, when we were hearing this matter through Video Conferencing.

¶399

We may quote have some judgments of Hon’ble Supreme Court in this type of cases.

¶400

In the case of Coal Blocks Allocation Scam case in

¶401

Manohar Lal Sharma vs. Principal Secretary [(2014) 2 SCC

¶402

532] in paras 34 and 35, the Hon’ble Apex Court said:

¶403

“34. The abuse of public office for private gain has grown in scope and scale and hit the nation badly . Corruption reduces revenue; it slows down economic activity and holds back economic growth. The biggest loss that may occur to the nation due to corruption is loss of confidence in the democracy and weakening of

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the rule of law.

¶408

35. In recent times, there has been concern over the need to ensure that the corridors of power remain untainted by corruption or nepotism and that there is optimum utilisation of resources and funds for their intended purposes.”

¶409

In Kalabharati Advertising vs. Hemant Vimalnath Narichania [(2010 9 SCC 437] , the Hon’ble Supreme Court denied the benefit or fruit of illegality to continue with the errant litigant merely because matter got stuck and delayed in Courts. Para 15 of the judgment is quoted below:

¶410

“15. No litigant can derive any benefit from the mere pendency of a case in a court of law , as the interim order always merges into the final order to be passed in the case and if the case is ultimately dismissed, the interim order stands nullified automatically. A party cannot be allowed to take any benefit of his own wrongs by getting an interim order and thereafter blame the court . The fact that the case is found, ultimately, devoid of any merit,

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or the party withdrew the writ petition, shows that a frivolous writ petition had been filed. The maxim actus curiae neminem gravabit, which means that the act of the court shall prejudice no one, becomes applicable in such a case. In such a situation the court is under an obligation to undo the wrong done to a party by the act of the court . Thus, any undeserved or unfair advantage gained by a party invoking the jurisdiction of the court must be neutralised , as the institution of litigation cannot be permitted to confer any advantage on a party by the delayed action of the court.”

¶415

In Secretary, Jaipur Development Authority, Jaipur vs.

¶416

Daulat Mal Jain & Ors. [(1997) 1 SCC 35] in paras 12 to 18, the Hon’ble Supreme Court came down heavily on Executive against squandering of public property in the following manner:

¶417

“12. When a Government in office misuses its powers figuratively, we refer to the individual Minister/Council of Ministers who are constituents of the Government. The Government acts through its bureaucrats,

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who shapes its social economic and 'administrative policies to further the social stability and progress socially, economically and politically . Actions of the Government, should be accounted for social morality. Therefore, the actions of the individuals would reflect on the actions of the Government. The actions are intended to further the goals set down in the Constitution, the laws or administrative policy. The action would, therefore, bear necessary integral connection between the 'purpose' and the end object of public welfare and not personal gain . The action cannot be divorced from that of the individual actor. The end is something aimed at and only individuals can have and shape the aims to further the social, economic and political goals. The ministerial responsibility threat comes into consideration. The Minister is responsible not only for his actions but also for the job of the bureaucrats who work or have worked under him. He owes the responsibility to the electors for all his actions taken in the name of the Governor in relation to the Department of which he is the head. If

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the Minister, in fact, is responsible for all the detailed workings of his Department, then clearly ministerial responsibility must cover a wider spectrum than mere moral responsibility: for no minister can possibly get acquainted with all the detailed decisions involved in the working of his Department. The Ministerial responsibility, therefore, would be that the Minister must be prepared to answer questions in the House about the actions of his department and the resultant enforcement of the policies. He owes them moral responsibility. But for actions performed without his concurrence also, he will be required to provide explanations and also bear responsibility for the actions of the bureaucrats who work under him. Therefore, he bears not only moral responsibility but also in relation to all the actions of the bureaucrats who work under him bearing actual responsibility in the working of the Department under his ministerial responsibility .

¶426

13. All purposes or actions for which moral responsibility can be attached are actions performed by individual persons composing

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the Department . All Government actions, therefore, means actions performed by individual person to further the objectives set down in the Constitution, the laws and the administrative policies to develop democratic traditions. Social and economic democracy are set down in the Preamble, Part III and Part IV of the Constitution. The intention behind the Government actions and purposes is to further the public welfare and the national interest. Public good is synonymous to protection of the interests of the citizens as a territorial unit or nation as a whole . It also aims to further the public policies. The limitations of the policies are kept along with the public interest to prevent the exploitation or misuse or abuse of the office or the executive actions for personal gain or for illegal gratification .

¶431

14. The so-called public policy cannot be a camouflage for abuse of the power and trust entrusted with a public authority or public servant for the performance of public duties. Misuse implies doing of something improper . The essence of impropriety is replacement of a

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public motive for a private one. When satisfaction sought in the performance of duties is for mutual personal gain, the misuse is usually termed as corruption . The holder of a public office is said to have misused his position when in pursuit of a private satisfaction, as distinguished from public interest, he has done something which he ought not to have done . The most elementary qualification demanded of a Minister is honesty and incorruptibility. He should not only possess these qualifications but should also appear to possess the same.

¶436

15. In the Encyclopedia of Democracy by Seymour Martin Lipset , Vol. 1, page 310, in the Chapter "Corruption'', it is stated that corruption is an abuse of public resources for private gain . The occasions for political corruption increases when control on the activity of public administrators are fragile and the division of power between political actors and the public bureaucrats, as well as between the Government and the middle man, is Unclear, It is difficult to discover and punish

¶437

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cases of corruption. Research has shown that political corruption tends to be more widespread in authoritarian or totalitarian regimes and when public opinion and the press are unable to denounce corruption . Corruption develops because of con-fusion about the borders between State and society and between traditional and modern values. It can be expected to grow during phases of transition. Corruption should disappear in modern stable democratic societies. In-stead, it is growing. Since State intervention in economic and social life has increased the occasions for political corruption, new technologies have increased the cost of electoral campaigns and the professionalisation of political careers has increased the number of those who have to make a living from politics rather than living for politics. Corruption has not disappeared. Corruption has dangerous consequences for politics. Al-though political corruption is more widespread in non-democratic regimes, it is particularly dangerous for democracy because' it undermines two of the major

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principles on which democracies are based; the equality of citizens' rights and the transparency of the political decision-making

¶445

process ; Bribes open the way for access to the State for those who are willing to pay and can afford the price. The situation may leave noncorrupt citizens with the belief that one "counts" only if one has the right personal contacts with those who hold power. Because of its illegal nature, corruption increases the range of public decision that are made in secrecy: It was suggested that internal controls on public bureaucracies through administrative controls and accounting procedures as well as ombudsman systems for public complaints, are remedies to control political corruption. The rules of Code of Conduct for political executives, public servants and private entrepreneurs, emphasising merit and regulated system of appointment in state bureaucracy and Stimulating pride in public service, would generate remedies for political corruption.

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BIHARIDAN JIVABHAI GADHVI, IPS v. STATE OF GUJARAT & Anr

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16. In Director of Public Prosecutions v. Holly Director of Public Prosecutions v. Manners, (1977) 1 All ER 316 (House of Lords), the expression 'public body' came up for consideration. The applicability of Prevention of Corruption Act was not restricted to local authorities but referred to any public body having public or statutory duties to perform and which earned on activities of public interest. In that behalf, House of Lords, had held that the Prevention of Corruption Act was not restricted to local authorities; it was applicable to any body which has public and statutory duties to perform and bodies which perform those duties and carry out their transactions for the benefit of the public and not for private profit . Accordingly, it was held that the persons who perform public functions are liable to prosecution for corruption. Similar views were expressed in R v. Andrews Weatherfoil Ltd. & Ors., (1972) 1 AII ER 65; Rother Valley Railway Co. Ltd. v. Ministry of Transport, (1972) 2 W.L.R. 1041 (Chancery Division); Regina v. Smith, (1960) 2 W.L.R. 164 (Court of

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Criminal Appeal); and R v. Braithwaite R v. Girdham, (1983) 2 All ER 87 (Criminal Division).

¶454

17. The court, therefore, would be required to consider whether the policy sought to be relied on and directed by the Minister was to further public good or was a means to fritter away the public property for personal gain or to misuse public power. The object of publication of the notification under Section 4(1) in the Official Gazette is to give notice to the owner that the land is needed for public purpose and he is prevented to create any sort of encumbrance on the land with effect from that date etc. The land, if ultimately acquired, vests in the State under Section 16 or 17(2) of the Act free from all encumbrances. The public policy of the Government should only be to further the public purpose and issue of declaration is the conclusive proof of public purpose under Section 6(1) or any other similar public purpose, Limited public purpose given under Section 31(3), by operation of Which, the LAO/Collector is empowered, after

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BIHARIDAN JIVABHAI GADHVI, IPS v. STATE OF GUJARAT & Anr

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the sanction is accorded by the appropriate Government, with the liberation of non obstante clause, is to allot any other land, in lieu of money compensation only, to such persons having a limited interest in such land, either by the grant of some other lands in exchange or remission of land revenue on other lands held under the same title, or in such other way as may be equitable "having regard to the interest" of the persons having limited interest in the land.

¶459

18. In other words, the public policy under the Act is that the acquired land should be used only for public purpose declared under Section 6(1) of the Act or any other public purpose and, under no circumstances, for any private purpose .”

¶460

Before we part with, we only intend to note once again that on 10.11.1953 when the land in question of four survey numbers, i.e. Survey Nos.467, 490 (with which we are not concerned) and Survey Nos.550 and 552 (the land in question in the present case), the character of the land was never changed

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from ‘Gauchar land’ to ‘Government Waste Land’ . The revenue mutation entry quoted by us above clearly shows that the land in question was running as ‘ Gauchar land ’ only and it was only to be entrusted to the Gram Panchayat under two orders of 14.09.1953 and 21.09.1953 referred therein and the entry with regard to handing over the possession of the said land together with Trees and Road in favour of the Gram Panchayat was only made. Never thereafter the revenue record was made to record any change in the character of ‘Gauchar land’ to ‘Government Waste Land’ and therefore, the very foundation of the consideration of the land for allotment to the Petitioner under 1965 Policy was not available which clearly applied only to ‘Government Waste Land’ to be allotted to eligible persons for Coconut and Arcenut plantations. The Gauchar land was never available for such allotment. Therefore, the very application of the Petitioner was not maintainable for consideration, but still the District Collector obliged and granted the allotment.

¶464

Another fact which we wish to highlight is a dismissal

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¶467

order passed in Special Civil Application No. 3468 of 1982 – Ramabhai Sukerbhai Patel vs. Collector , decided on 23.03.1983 (see page 54 of the Paper Book) by the learned Single Judge of this Court (Coram: S.L. Talati, J.) in another similar case of ex-serviceman which came to be dismissed with by the learned Single Judge of this Court on the ground that he was only Ex-Territorial Army Serviceman (as the present Petitioner too was vide District Collector first order dated 05.12.1981 itself) and the learned Single Judge dismissed the said writ petition filed by the Petitioner who claimed similar allotment in the category of ex-serviceman. The learned Single Judge also noted in that order the the different stand taken by same Magod Gram Panchayat, wherein the case of the Petitioner in Special Civil Application No.3468 of 1982 , the Sarpanch of the said Gram Panchayat, Magod said that the land in question in Survey Nos.550 and 552 could not be allotted and the said land was ‘Gauchar land’ but when such application was filed by Respondent No.3 Mr. B.J. Gadhvi who is Appellant / Petitioner before us and was Respondent No.3 in Special Civil

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Application No.3468 of 1982 , the Gram Panchayat immediately agreed and gave its ‘No Objection’ for allotment in his favour. However, Special Civil Application No.3468 of 1982 of that Petitioner was dismissed by the learned Single Judge as the learned Single Judge found that since the Petitioner served only Territorial Army, which was specifically excluded from the definition of ex-serviceman. Therefore, his application for allotment was not maintainable. But perhaps the fact that Mr. B.J. Gadhvi was also only an Ex-Territorial Army person, who also got immediately the cadre of an IPS officer directly, was not brought to the notice of learned Single Judge and has never been highlighted.

¶471

We do not consider it necessary to discuss the legal provisions of Revenue Law in the present case to a large extent, because we are of the considered opinion that the various orders of the Court and the learned Secretary which we have quoted above profusely, discussed the facts and legal position in great detail and there is no need to add to the bulk of it.

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We are of the considered and clear opinion that there is absolutely no merit in the claim and case of the Petitioner / Appellant and the present Letters Patent Appeal is dismissed again with costs which we quantify at Rs.1,00,000/- (Rupees One Lakh only) to be deposited within a month by the Petitioner in the Cost Fund of Legal Services Authority for legal aid to the poor, with a further direction to Mr. B.J. Gadhvi to pay mesne profits at the rate of Rs.5,000/- per month from October 1991 after the order dated 09.09.1991 of the learned Principal Secretary till June 2021 and further till he is actually dispossessed from the land in question and the same is handed over back to the Gram Panchayat which should be done as within six months from today. Half of all the said mesne profits including its arrears will be paid to the Magod Gram Panchayat and remaining half to the Revenue Department of the State Government .

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Sd/- (DR. VINEET KOTHARI,J)

¶476

Sd/- (B.N. KARIA, J)

¶477

Mr. S.N. Shelat, learned Senior Counsel for Mr. Shital R. Patel, learned Counsel for the Appellant made a request of staying the operation of the Judgment pronounced today, but considering the facts of the case, we are not inclined to grant this prayer and therefore, it is turned down.

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Sd/- (DR. VINEET KOTHARI,J)

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Sd/- (B.N. KARIA, J)

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Bharat

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Biharidan Jivabhai Gadhvi v. State of Gujarat

Case brief

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Biharidan Jivabhai Gadhvi v. State of Gujarat

Case brief

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