A claim for re-grant of land designated as Khalvad and later Gauchar was rejected. The court held that the petitioners established no entitlement to re-grant and could not rely on non-utilization or revive their claim after decades of inaction. The petition was dismissed in limine with costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/SCA/6287/2022 ORDER DATED: 13/06/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 6287 of 2022
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GOVINDBHAI MAGANLAL SINCE DECD. THROUGH LHS Versus THE SPECIAL SECRETARY (APPEALS)
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Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1,1.1,1.2,1.2.1,1.3,1.3.1,1.3.2,1.3.3,1.4,1.5,1.6,2,2.1,2.2,2.3,2.4 MR JK SHAH, AGP for the Respondent(s) No. 1,2,3,4,5 ==========================================================
CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Date : 13/06/2022 ORAL ORDER
2.1. The petitioners are claiming that the land in question was part and parcel of survey no. 410 and belonged to the ancestors of the petitioners i.e. Virabhai Mavjibhai and in revenue record his name is shown as owner and occupier. According to the petitioners, as per the endorsement in the Prati book, land in question, came to be acquired for the purpose of Sabarmati Rail Track and therefore, there was a division of the land into two parts. Necessary Durasti was carried out on 24.01.1901. After the acquisition, new survey no. 554 was assigned, which aspect, is again reflected in the Patrak
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book, followed by the further endorsement that the land, is needed for the purpose of ‘Khalvad’ and accordingly, the land admeasuring 80 sq. mts. came to be acquired for the purpose of railway track. The land further came to be divided in two parts which, resulted into survey no. 631 and according to the petitioners, survey no. 631 is a part of original survey no. 410. It is the case of the petitioners that the remaining parcel of land, which was left out after the acquisition, was numbered as survey no. 410 and remaining part was assigned survey no. 631. Survey no. 631 came to be renumbered as survey no. 543, which was part of the original survey no. 410.
2.2. As per the revenue record of the years 1951-52, and more particularly, 7/12 forms, Mohanbhai Virabhai is shown as the occupant of the land in question which factum, is strengthened by the entry no. 1180 dated 06.05.1937, as the land came to be sold in his favour. Subsequently, the entry no. 4298 came to be posted in the revenue record, reflecting the fact that upon demise of Mohan Vira, by way of succession, the names of Maganbhai and Ranchodbhai were posted in the revenue record. As per the averments made in the petition, after some correction of the survey numbers, the land in question was admeasuring A-6-5 -gunthas in the name of Virabhai Mohanbhai. As per the endorsement dated 12.05.1912, the land admeasuring 1 Acre came to be vested as Khalvad land. According to the petitioners, survey no. 410 was originally admeasuring 687.32 sq. mts., which came to be acquired and the remaining 1 Acre stood vested as Khalvad land and therefore, A-5-5-gunthas of the land came to be mutated in the name of Virabhai Mohanbhai. The grievance of the petitioner is that the land in question i.e. Khalvad land admeasuring 1 Acre was not utilized for the purpose of Gauchar or Khalvad land. Since the land was not acquired and no compensation, was paid for such
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acquisition, which originally was of the private ownership of the ancestors of the petitioners, the petitioners preferred an application for re-grant of the same, with a request to do the needful.
2.3. The petitioners, initially filed an application dated 29.11.2016 and since the petitioners did not receive satisfactory reply, the petitioners submitted an application dated 06.04.2018 to the District Collector, inter alia, praying for re-grant of the land in question. The District Collector considered the application of the petitioners and passed order dated 11.07.2018 rejecting the application on the ground that the petitioners neither are cultivating nor are in possession of the land in question. The application is also rejected on the ground that there is some construction of huts over the land in question. Being aggrieved, the petitioner, preferred a revision application before the learned Secretary, who passed an order dated 03.07.2019 rejecting the revision application. While doing so, the learned Secretary confirmed the order dated 11.07.2018, of the District Collector. Hence, the present writ petition with the aforementioned prayers.
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undertaken nor any information was provided to the petitioners. Description and reference is also made of the consolidation proceeding with respect to the survey no. 410/1+5+6 and assigning of the new number vide entry no. 2748. According to the petitioners, the divisions have taken place out of survey no. 410 and the lands, which have been divided, they belong to the private parties and therefore, it is urged/emphasized that survey no. 410/A is of a private ownership. Accordingly, request is made that the land be granted/re-granted/ allotted to the petitioners on any condition/payment of occupancy price/ premium or as per the policy of the government, in the interest of justice.
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land in question admeasuring 1 Acre of survey no. 410/A.
5.1. It is submitted that prior to year 1939, the land was of the private ownership and in the year 1939, the land in question was designated as the Khalvad land. The entry no. 1385 has been posted in the revenue record on 15.12.1939 followed by entry no. 1918 dated 12.04.1944 designating the land as Gauchar land. It is submitted that so far as the other parcels of land of survey no. 410 are concerned, the same are in the name of private respondents, and therefore, survey no. 410/A could not have been of the State Government or have been designated as Khalvad or Gauchar land. Reference is made to page no. 67 of the compilation of captioned writ petition, to submit that from the sketch, it is clear that survey no. 410 has been divided into 410/1, 410/2, 410/3, 410/4, 410/5 and 410/A. So far as survey no. 410/1 to 410/3 are concerned, the same were of the private ownership. The disputed land 410/A could not have been of the ownership of the State Government.
5.2. It is further submitted that the land in question, was not utilized for the purpose of Khalvad or for the purpose of Gauchar. The land in question has been designated as Khalvad or Gauchar without acquiring the same or without offering any compensation to the petitioners. Since the lands were not acquired or no compensation was paid, the petitioners submitted an application for re-grant of the land in question, in the year 2016; however, nothing materialized, and hence, the petitioners submitted another application in the year 2018 which came to be rejected by the District Collector vide order dated 11.07.2018. That the District Collector while passing the order dated 11.07.2018 has not applied its mind independently inasmuch as, the revenue record has not been considered, as pointed out by the petitioners, which clearly indicates that the land is of the ownership of the ancestors of the
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petitioners. It is submitted that the District Collector, ought to have appreciated that there is no document to suggest that any proceedings were carried out for vesting of the land into Gauchar land either under the provisions of the Gujarat Panchayats Act, 1993 or the provisions of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as the ‘Code of 1879’) and therefore, the land of private ownership, could not have been vested in the State Government. While referring to the provisions of Section 37, it is submitted that the powers are available to the Collector to allot the land. The application could not have been rejected only on the ground that the land in question is Gauchar land and it is not in possession of the petitioners or that the petitioners are not cultivating the same.
5.3. It is next submitted that since the petitioners were aggrieved by the order of the Collector, the petitioners preferred a revision application which, came to be rejected vide order dated 03.07.2019, confirming the order of the Collector dated 11.07.2018. It is submitted that the learned Secretary reiterated the reasoning given by the Collector and it failed to appreciate that the land in question is of the ownership of the ancestors of the petitioners and in absence of any acquisition or compensation paid, the petitioners could not have been deprived of their legitimate rights over the land. It is submitted that the reference of the judgment of the Apex Court, passed in SLP no. 3109 of 2011 and other, is also misplaced. So far as the further direction that if the petitioners are treating them as the owners, then they can take recourse under the provisions of sub-section (2) of Section 37 of the Code of 1879 is concerned, it is submitted that the said direction is also erroneous inasmuch as, the proceedings under Section 37(2) of the Code of 1879 can be followed only when there is a dispute between the State Government and the private party with
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respect to the ownership of the land in question. In the present case, the documents, clearly reveal that it is not the case of the State Government, that the land in question was not of a private ownership and therefore, the observations that the petitioners can invoke the provisions of sub-section (2) of Section 37 of the Code of 1879 is also misplaced. It is submitted that the learned Secretary also committed an error in applying the principle laid down by the Apex Court as regards the Gauchar land as, the petitioners were not asking for government or Gauchar land for their private use but, the land of private ownership having been designated as Gauchar land and not utilized and in absence of any compensation paid, request is made of re-grant. It is therefore urged that the Collector in passing the order dated 11.07.2018, so also the learned Secretary in passing the order dated 03.07.2019, have committed serious error in rejecting the request of the petitioners for re-grant of the land. Thus, petition be entertained.
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6.1. It is further submitted that in the interregnum, various developments have taken place; however, the petitioner had woke up from slumber only in the year 2016, by filing an application for re-grant of the land in question. It is submitted that another application was filed by the petitioners in the year 2018 which, has not been accepted by the District Collector vide order dated 11.07.2018. The Collector has rightly observed that the land in question is designated as Gauchar land and since the petitioners are not in possession and not cultivating the land, the request of the petitioners cannot be accepted. It is further submitted that so far as the order dated 03.07.2019 of the learned Secretary is concerned, no error has been committed as, the request of the petitioners for re-grant of the Gauchar land cannot be considered. It is submitted that the learned Secretary has rightly observed that if at all, the petitioners, are claiming the ownership of the land, remedy available to them is under the provisions of sub-section (2) of Section 37 of the Code of 1879. It is therefore submitted that no error has been committed by the Collector and/or the learned Secretary, in passing the orders, rejecting the application of the petitioners and therefore, the petition does not deserve to be entertained and be dismissed in limine .
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the year 1912. The grievance of the petitioners is revolving around the land in question that is survey no. 410/A admeasuring 1 Acre.
9. Paragraph Nos. 6 to 12 are the facts narrated and read thus:
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by which, it reflected that upon demise of Mohan Vira by way of succession entry, name of Maganbhai and Ranchodbhai came to be mutated.
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admeasuring a-6-33-gunthas approximately. Some portion of the land was acquired by the railways and what was left was 1 acre, which, was designated as Khalvad land. The remaining a-5-5gunthas was of the ownership of Virabhai Mohanbhai. All throughout, it is the case of the petitioners that the Khalvad land was thereafter designated as Gauchar land; however, the land in question is not being used either as Khalvad land or as Gauchar land. The grievance is also raised by the petitioners, first, that when the land was designated as a Khalvad land or as a Gauchar land, no notice was issued to the petitioners; second, when the land was acquired or had gone in reservation, no steps were taken, and third, that from the revenue record, it is not borne out that the compensation was paid to the petitioners.
“14. It was further submitted that in view of the aforesaid facts and the revenue record which are stated herein above, it is clear that the land in question belonging to the petitioner and is acquired without any procedure of law. It was further submitted that hence in view of the above acquisition of land or deprivation of the land, is illegal and unjust. It was further submitted that even otherwise no provision of law stated that the land of the private ownership can be vested as Khalvad or gaucher land. Moreover, provisions of Section 51 of the Panchayat Act was required to be considered and in such view of the matter, since land is not utilized or required for such purpose and for which no acquisition or procedure is required to be carried out as per law, may be regranted in favour of the petitioners.”
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designation of the land in question as Khalvad and subsequently as Gauchar land. Various reasons have been mentioned as regard the designation of the land as a Khalvad land and as a Gauchar land. The petitioners have also challenged the fact that either in the State of Gujarat and more particularly, in the city of Ahmedabad, the Khalvad land, cannot be of the ownership of the State Government. Such challenge has been raised against the designation for the Gauchar land as well. Under the circumstances, the petitioners have prayed for re-grant of the land.
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dated 15.12.1939, the land in question, has been designated as a Khalvad land, which is on the basis of the order passed by the District Inspector of Land Records. Thereafter, as a result of the Durasti, the land in question has been designated as the Gauchar land. Necessary entries were posted in the revenue record designating the land as Gauchar land, vide entry no.1918 dated 12.04.1944. Nothing has been brought on record to substantiate that either the said entry or the order on the basis of which entry was posted has been challenged. Neither the entry no. 1385 dated 15.12.1939 nor the entry no. 1918 dated 12.04.1944, have been challenged by the petitioners or for that matter by the ancestors of the petitioners. Therefore, the land stood vested in the State Government prior to the year 1939, and in the year 1944, the land in question was designated as Gauchar land. This Court, confronted the learned Advocate appearing for the petitioners that whether the petitioners are challenging the entry, Mr. Purohit, learned Advocate, stated at the bar that the petitioners are not challenging the entry no. 1385 dated 15.11.1939 or the entry no. 1918 dated 12.04.1944. When the petitioners are or have not challenged the aforesaid two entries, by which the land in question have been vested in the State Government, it is difficult to accept the contention of the petitioners for re-grant of the land, that too without pointing out any provisions and/or policies making eligible the petitioners either for re-grant/grant of the land in question. Neither any grant order nor any documents are placed on record to substantiate the aspect of ownership or possession after the year 1939 or after the year 1944. This Court required the learned Advocate to place on record any documents in the form of revenue receipt paying revenue or any other documents, but nothing has been produced and the answer was in negative. Pertinently, after the year 1939 and/or 1944 there is not a semblance of any evidence
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in favour of the petitioners for claiming either grant or re-grant of the land in question.
“since the aforesaid land in question i.e. Khalvad land admeasuring accres 1 was not utilized for the purpose of gaucher or Khalvad and since the said land was not acquired and no compensation came to be paid for such acquisition, which was originally of private ownership of ancestors of the petitioners, application came to be preferred for regrant of the same. It is further submitted that with respect to the aforesaid parcel of land admeasuring 1 acres which is now sought to be re-granted in favour of the petitioner and in view of the aforementioned facts, the same is neither acquired nor any compensation was paid nor there is any reservation in the land in question and it is also not used as Khalvad or gaucher land and therefore, land which is originally of the petitioners may be re-granted in the name of the petitioners.”
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with entry no. 1385 dated 15.12.1939 and vide entry no. 1918 dated 12.04.1944. Therefore, the stand of the petitioners that the land was of the ancestors of the petitioners, is stated to be rejected. If at all, it was, either the ancestors or the petitioners, should have taken steps to challenge the said order or entry, but has not been. So far as, the acquisition is concerned, no documents worth the name are placed on record and therefore, the said contention also cannot be considered. So far as the non-utilization of the land for the purpose for which it was designated is concerned, the said argument will not come to the rescue or help the petitioners, for after the vesting of land in the State Government in the year 1939/1944 it is for the State Government to utilize the land as it deems fit. Hence, petitioners have thoroughly failed to point out any of the rights so as to request for grant/re-grant of the land.
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petitioners challenging the orders and creating a cause, when there exist none. The present writ petition, in the opinion of this Court, is misconceived and deserves to be dismissed in limine. The order dated 11.07.2018 of the Collector and 03.07.2019 of the learned Secretary do not warrant interference.
(SANGEETA K. VISHEN,J)
SINDHU NAIR
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3 issues framed by the court
Could the petitioners claim re-grant of land designated as Khalvad and Gauchar without challenging the vesting entries or establishing an entitlement?
Did non-utilization for the designated purpose entitle the petitioners to re-grant?
Could the request for re-grant be entertained after more than seven decades of inaction?
GOVINDBHAI MAGANLAL SINCE DECD. THROUGH LHS
Ranchodlal
THE SPECIAL SECRETARY (APPEALS)
SANGEETA K. VISHEN
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
