K.M.THAKER, J. - (1.) Heard Ms.Pahwa, learned advocate for the petitioner and Mr.Mehta, learned AGP for the 1 HC-NIC Page 1 of 33 Created On Tue Apr 03 17:55:12 IST 2018 respondents.
(2.) So as to consider and appreciate the relief prayed for by the petitioner, it is necessary to take into account factual backdrop which can be summarized thus. 2. 1 The dispute and controversy in present petition relate to land bearing Survey No.217 admeasuring 22 acres and 22 guthas in Village: Bhogat, Taluka: Jamkalyanpur, District: Jamnagar. 2. 2 According to the petitioner's claim, his father purchased the said land in June 1968 by a registered sale deed. The petitioner claims that the entry recording the said transaction came to be mutated as Revenue Entry No.1098 in favour of the petitioner's father and that the said entry was subsequently certified in March 1970. 2. 3 Subsequently, somewhere in 1970-71, the Deputy Collector, Khambaliya initiated proceedings for breach of condition on the ground that the new and restricted tenure land could 2 HC-NIC Page 2 of 33 Created On Tue Apr 03 17:55:12 IST 2018 have been sold without permission of the Collector. After issuing notice and after hearing, the concerned/affected party, the Deputy Collector passed order dated 23.6.1973 holding, inter alia, that the transaction was effected in breach of condition and without taking permission of Collector. The Deputy Collector passed consequential order setting aside the sale and forfeiture of land. 2. 4 Feeling aggrieved by the said order dated 23.6.1973, the petitioner's father filed appeal before the Collector, Jamnagar. The appeal was registered as Land-Appeal-6/73-74. After hearing the parties, the Collector passed order dated 30.7.1974 and set aside the order dated 23.6.1973 passed by the Deputy Collector. 2. 5 In its order dated 30.7.1974, the Collector held that the land in question was allotted/granted to the vendor Shri Pragdas Purshottam Bava as 'avadiya' on new and restricted tenure basis and that, therefore, the 3 HC-NIC Page 3 of 33 Created On Tue Apr 03 17:55:12 IST 2018 entry could have been certified, however, since the entry was already mutated, the authority held that instead of removing the purchaser and taking over the possession and forfeiture of land, the purchaser may be permitted to hold and retain possession by charging penalty amount and thereby the possession and occupation of land may be regularized. The Collector also passed further direction to the competent authority to decide the penal amount and the father of the petitioner was directed to pay penal amount. 2. 6 It appears that subsequently, father of the petitioner declared his inability to pay the penal amount and that, therefore the Collector passed order dated 16.6.2016 recording that the petitioner declared and stated that he was ready or able to pay the penal amount and that, therefore, the request for regularization of possession and occupation of land cannot be accepted. With such observation, the Collector 4 HC-NIC Page 4 of 33 Created On Tue Apr 03 17:55:12 IST 2018 also directed the petitioner to hand over vacant possession of the land in question and that the land would vest in favour of the Government. 2. 7 After the said order dated 16.6.1976, father of present petitioner had filed Regular Civil Suit No.102 of 1977 which came to be decided vide judgment dated 3.10.1981. The learned Civil Court directed the authorities to regularize the possession by imposing appropriate penalty. The State filed appeal against the said judgment dated 3.10.1981 which was registered as Appeal No.198 of 1981. The said appeal came to be decided vide judgment dated 28.4.1982 and the learned appeal Court passed similar directions. 2. 8 Thereafter vide communication dated 15.7.1982, the Collector informed the petitioner's father to remain present during the hearing for determining the price/penalty. 2. 9 On or around 21.7.1982, the petitioner's father submitted an application with a request to 5 HC-NIC Page 5 of 33 Created On Tue Apr 03 17:55:12 IST 2018 regularize the possession. 2. 10 Subsequently, the Collector passed order dated 30.5.1983 directing that if the father of the petitioner does pay or is ready and willing to pay the amount of penalty determined by the authority, then steps to take possession of the land in question should be initiated. 2. 11 At that stage, the petitioner's father preferred revision application before the Secretary (Appeals), Revenue Department against the order dated 30.5.1983 passed by the Collector. 2. 12 The said revision application came to be decided by the Secretary (Appeals) vide order dated 23.7.1984. 2. 13 The Secretary (Appeals) took into account the facts of the case and also considered the Government Resolution dated 8.1.1980 and having regard to the facts and the resolution, the Secretary (Appeals) held that the possession 6 HC-NIC Page 6 of 33 Created On Tue Apr 03 17:55:12 IST 2018 of the land can be regularized upon payment of 2.5 times penalty. 2. 14 The petitioner did pay the amount of penalty and when the authority initiated steps to take possession somewhere in February 1998, the petitioner, at that stage, preferred present petition. 2. 15 This Court, vide order dated 5.8.1998, admitted the petition and granted ad-interim relief in terms of paragraph No.15(B) on the conditions mentioned in the order. The said order dated 5.8.1998 reads thus: "Rule. Ad-interim relief in terms of para 15(B) on condition that the petitioner pays the amount of premium plus penalty which may be determined by the Collector. It will be open to the petitioner to make an application for determination of the aforesaid amounts and the respondents shall, without prejudice to their rights and contentious in this petition, determine the said amounts within two months from today and the petitioner shall pay the amounts so determined within two months thereafter." (Emphasis supplied)
(3.) It is in dispute that the petitioner has neither complied the order passed by the competent authority for determining the penalty nor the petitioner has complied this interim order dated 5.8.1998 passed by this Court while 7 HC-NIC Page 7 of 33 Created On Tue Apr 03 17:55:12 IST 2018 admitting the petition. 3. 1 On the other hand, without complying the order passed by the authority and/or the order dated 5.8.1990 passed by the Court, the petitioner has, allegedly, continued to hold possession of the land in question. 3. 2 of course, the respondent authorities claim that the authority has taken over the possession of the land in question. 3. 3 So far as controversy with regard to the possession of the land in question is concerned, the authority, i.e. respondent No.4 has filed affidavit, wherein it is stated, inter alia, that: "5. It is stated that as per the order of the Hon. Court dated 05/08/1998, the price of the land in question was decided by the competent authority and then by the letter of the Collector Jamnagar dated 28/12/1998, no.jaman-1- 3714-98, Mamlatdar Kalyanpur was informed that the price of the land had been decided as Rs. 40000 per acre. So land in question measuring acre 22.26 guntha priced at Rs. 906000 and with a penalty of 2.5 times it priced at Rs. 2265000. 6. It is pertinent to note that by way of the letter dated 06/01/1999 no.jman-17-99, the office of the deponent conveyed petitioner to pay the above mentioned amount of premium and penalty within two months as the Hon. Court's order dated 05/08/1998. 7. Talati Bhogat had given a report to the Mamlatdar 8 HC-NIC Page 8 of 33 Created On Tue Apr 03 17:55:12 IST 2018 dated/02/1999 with a panchrojkam that the petitioner was willing and can't afford the payment as decided and informed to pay. 8. It is pertinent to note that thereafter the possession of the land was taken and showing the possession of state government, a board was put on the land in question, photographs of which are attached herewith. A panch-rojkam has been done by circle officer on date- 11/07/2012 which mentioned that land was barren and cultivated. Another panch-rojkam was done on the date11/10/2012. 9. It is submitted that by way of the mutation entry No.2334 in village form no.6, the land was mutated in the name of the state government. 10. It is stated that as it is earlier mentioned that as per the order of Hon. Court dated 05/08/1998 ad-interim relief was granted conditionally. The land in question after completing two months from the date of order as the petitioner had pay the amount decided by the competent authority in the year 1998, the land automatically forfeited in the name of the state government. Only on this ground the petition should be dismissed. Therefore question of regularization does arise as of now." 3. 4 of course, the petitioner has filed rejoinder affidavit and further affidavit claiming that the land in question is still with the petitioner. ;