Remanded

Rameshbhai Ambalal Patel v. State of Gujarat

Gujarat HC23 Jul 2021SCA/6399/2021

Case brief

AI extract

What is this about?

Writ petition challenging an order under Gujarat Prevention of Fragmentation Act. Court found the authority failed to consider applicability of the Act and reasons. Matter remanded for fresh hearing.

What did the court decide?

Petition remanded to Assistant Collector for reconsideration after affording fresh hearing and opportunity to place documents on record.

Rameshbhai Ambalal Patel Vs State of Gujarat — Land Acquisition | Gujarat HC (2021)

¶1

C/SCA/6399/2021 ORDER DATED: 23/07/2021

¶2

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

¶3

R/SPECIAL CIVIL APPLICATION NO. 6399 of 2021

¶4

============================================= RAMESHBHAI AMBALAL PATEL

¶5

Versus

¶6

STATE OF GUJARAT

¶7

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

¶8

MR PARTHIV B SHAH(2678) for the Petitioner(s) No. 1,2 DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 3 NOTICE SERVED BY DS(5) for the Respondent(s) No. 2 MR. ROHAN SHAH, AGP for the Respondent(s) No. 1

¶9

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

¶10

CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

¶11

Date : 23/07/2021

¶12

ORAL ORDER

¶13

This petition under Article-226 of the Constitution of India is filed seeking direction to quash and set aside the order dated 11-12-2018 passed by the respondent No.2–Deputy Collector (Rural) in Fragmentation Case No. 22 of 2012.

¶14

It is the case of the petitioner is that the provision of the Gujarat Prevention of Fragmentation and Consolidation of Holding Act, 1947 will not be attracted to the transaction in question more particularly as there is no Fragmentation as the petitioners were already in legal occupation and possession of lands which were adjacent to the subject land.

¶15

At the outset, learned Advocate for the petitioner submitted that the Court may not examine the case on merits as the petitioners will be satisfied if the matter is remanded back to the same Authority more particularly in view of the glaring factual aspects, which has escaped the attention of the Deputy Collector.

¶16

Learned Advocate for the petitioner submitted that the petitioner was

¶17

Page 1 of 4

¶18

C/SCA/6399/2021 ORDER DATED: 23/07/2021

¶19

prevented from attending to this case out of compulsion as wife of the petitioner was suffering from cancer and was in the USA for treatment and while the petitioner was in the USA for the treatment of his wife, on account of Covid Pandemic, could not travel back for almost a period of one year.

¶20

It is submitted that the impugned order is passed without assigning any reasons and dealing with the contentions raised by the petitioners including the documents placed before the Authority for its consideration to substantiate the case of the petitioners.

¶21

As against this, learned AGP has relied upon the Affidavit in reply on behalf of the respondent No.2, wherein it is stated that the petitioners have purchased the land bearing Survey No.43/3 having block no.69 from the private respondent pursuant to which a mutation entry No.10230 came to be certified. Thereafter, the respondent authority in the year 2012 has initiated a Fragmentation Case being Case No.22 of 2012 whereby the authority came to know that the land in question is barred by the provisions of the Act. It is submitted that the present petition does not survive mainly on the two grounds that, the present petitioners have approached this Hon'ble Court without availing an alternative remedy, which is provided by the statue and hence all the grievance which is raised before this Hon'ble Court could have been ventilated before the appropriate forum. Further, the order of the Deputy Collector came to be passed in the year 2018, hence, there is a delay of almost 3 years in approaching this Hon'ble Court, on the ground of delay also this petition does not survive.

¶22

It is submitted that even otherwise on the merits also the same cannot survive on the grounds that the land in question was originally admeasuring 0-37-22 hectare and out of which 0-28-00 hectare of land came to be sold after which 0-09-22 hector remains with seller which is less than permissible area under the Act, which was clearly violative as per the provision of the act, more particularly Section-9, sub-section-1

¶23

Page 2 of 4

¶24

C/SCA/6399/2021 ORDER DATED: 23/07/2021

¶25

of the Act, considering the same the respondent authority has rightly held that there is a breach of provisions of the act and hence it should be treated as void.

¶26

Learned AGP has also argued that with regard to the existence of the alternative remedy.

¶27

Having considered the rival submissions of the parties and having perused the documents on record, it appears that the issue pertains to the land bearing Revenue Survey No.43/3, Block No.69 of TalukaDistrict -Vadodara. This land was purchased by the petitioners from the respondent No.3(sic) on 09-12-2010 and the Sale-deed came to be registered vide Registration No.15754 and the Entry came to be mutated in the record vide Entry No.10230.

¶28

10.Thereafter, the Notice came to be issued under the provision of the Gujarat Prevention of Fragmentation and Consolidation of Holding Act, 1947, to which the petitioners replied that Block Nos.68, 71, 73, 75, 77 and 99, which were surrounding the aforesaid land in question, was also purchased by the petitioners and the name of the petitioners is reflected in the Revenue Record. Therefore, there is no question of applicability of the Fragmentation Act.

¶29

From the record it appears that the petitioners in response to the Notice have produced all the documents in support of Sale-deed and the Revenue record in support of their contentions regarding surrounding Block Nos. The petitioners have also relied upon the decision of this Court in case of Rathod Nayamatkhan Ahmedkhan, deceased through his heirs and legal representatives, Sardarkhan Nayamatkhan Rathod v/s. M.K. Dass, Dy. Collector And Ors. reported in 1998(2)GLH 459 , wherein in Para-7, which reads as under:

¶30

“7. Section 7(1) of the Act provides that no person shall transfer any fragment in respect of which a notice has been given under Sub-section (2) of Section 6 except to the owner of a contiguous survey number of recognised sub-division of survey number. The question which arises is whether a co-owner will also be covered by this exception. At this stage, it is also required to be noted that by introducing Section 8AA

¶31

Page 3 of 4

¶32

C/SCA/6399/2021 ORDER DATED: 23/07/2021

¶33

the legislature did contemplate co-ownership of land and, therefore, provided that where two or more persons are entitled to share in an undivided agricultural land and the land has to be partitioned amongst them, no such partition shall be effected so as to create a fragment. However, the legislature did not deny the right to purchase a fragment, which is conferred on the owner of a contiguous survey number, to a co-owner of a contiguous survey number. Moreover, purchase of such a fragment by one or more co-owners of a contiguous survey number will be more conducive to achievement of the object of the Act to prevent fragmentation and to achieve consolidation of holdings of agricultural lands.”

¶34

As the petitioners have prayed for relegating the matter back to the same Authority, the Court does not dwell much on the facts of the case, but observe that when the contention is raised before the Authority with regard to the applicability of the very Act in question, the Authority ought to have taken into consideration such contention and ought to have given the specific findings to such contention. In the impugned order dated 11-12-2018, the Court finds that the Authority has failed to assign cogent and valid reasons, not only that but has also not taken into consideration and answered the contentions raised by the petitioners.

¶35

In view of the aforesaid, it would be appropriate to relegate the petitioners back to the Assistant Collector for reconsidering the order dated 11-12-2018 passed by the respondent No.2 – Deputy Collector (Rural) in Fragmentation Case No. 22 of 2012 after affording afresh hearing and opportunity to place on record the relevant documents. While passing the order, the Assistant Collector, Vadodara (Rural) shall not be influenced by the order dated 11-12-2018. The petition stands disposed of with aforesaid observations . Direct service is permitted.

¶36

(A.Y. KOGJE, J)

¶37

PARESH SOMPURA

¶38

Page 4 of 4

Rameshbhai Ambalal Patel v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Rameshbhai Ambalal Patel v. State of Gujarat

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Prajapati Shradhdhaben Dashratbhai Vs State of Gujarat

Dhrutiksha Narendra Parmar through Poa Sobharajsinh Madhavsinh Sindha Vs State of Gujarat

Shankarbhai Ratnabhai Kanbi Vs State of Gujarat

Umiyashankar Natavarlal Joshi Vs State of Gujarat

Tarsing @ Bhutio Bhusar Damor Vs State of Gujarat

Kamleshbhai Ratanbahi Vasava Vs State of Gujarat