Back
2021 Supreme(Guj) 508
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SONIA GOKANI, J.
MANIBEN PATHUBHAI KOLI – Appellant
Versus
DISTRICT COLLECTOR PALANPUR & 4 other – Respondent
R/SPECIAL CIVIL APPLICATION NO. 15388 of 2006
Decided On : 23-06-2021
For the Appellant : MR HIMANSU M PADHYA
For the Respondent: MS JIRGA JHAVERI, ASST. GOVERNMENT PLEADER, MR MEHUL SHARAD SHAH
Point of Law: Allotment- Opinion of the Deputy Collector, although has rightly been revised by the SSRD, in wake of family understanding and with no hitch on legal side, the remaining 6 acres and 5 gunthas shall be mutated in the record of rights, in the name of respondent nos. 2, 3 and 4 as they are surely entitled to the parcel of land which belonged to their parents
Headnote:
Land Revenue Code - Section 211 - legal heirs - Order or direction, quashing and setting - Cultivation of land by guardian on behalf of minor, the allotment was cancelled and land was forfeited to Government - Granted land admeasuring 8 acres and 5 gunthas Instead of allotting the same to legal heirs of original allottee, brother of mother(Mama) and thereafter, his wife(Mami) is allotted the land - It has been stated that petitioner is having two minor children and one is mentally weak and in the family of respondent Nos. 2,3 & 4, there are about seven children, all belonging to Koli community and they are also related to each other - Considering facts and circumstances, inspite of 8 Acres 5 Gunthas, if the area of land is allotted to continue with petitioner admeasuring 2 Acres, and remaining area of 6 Acres 5 Gunthas is allotted to remain with respondent Nos. 2,3 & 4, all four families can survive. It has been stated that the petitioner has already deposited an amount towards 4 Acres of land respondent Nos. 2,3 & 4 would be required to pay the amount of towards 2 Acres of land so as to get the said land from petitioner as per the order of State Government
Findings of the Court: Court noticed that order of SSRD otherwise would not require any interference, but for the family understanding arrived at by and between parties, whereby order passed by this Court at an interim stage has been urged to be confirmed, continuing allotment of 2 acres out of 4 acres of land granted by the Collector to petitioner - Specifically noted by the Court, all four families, that of petitioner and those of respondent nos. 3 and 4 can survive on agricultural land as each one will get minimum 2 acres - Order of Collector has given due importance to the resolution and the opinion of the Deputy Collector, although has rightly been revised by the SSRD, in wake of family understanding and with no hitch on legal side, the remaining 6 acres and 5 gunthas shall be mutated in record of rights, in the name of respondent nos. 2, 3 and 4 as they are surely entitled to the parcel of land which belonged to their parents. For the 2 acres of land, name of petitioner – Maternal aunt and her heirs shall be entered, where she would have exclusive right as conferred by State without any hindrance from anyone in future also
Result - Petition is allowed partly
ORDER :
1. The present petition is filed challenging the order dated 31.03.2006 passed by the Secretary, Revenue alleging the same to be arbitrary, illegal and bad in law.
2. The facts leading to the present petition are as follows: -
2.1. The petitioner is the widow of Pathubhai Jethabhai Koli who, according to her, was in possession of the land situated at Survey No. 117 of 8 acres and 5 guntha at Hathidra, Taluka- Palanpur.
2.2. The father of the respondent nos. 2, 3 and 4 named as Ratnabhai Bhikhabhai was granted land admeasuring 8 acres and 5 gunthas of Survey No. 117 and 3 acres and 5 gunthas of Survey No. 243 on 08.08.1961. Ratnabhai passed away and respondent nos. 2, 3 and 4 were minor at that time. Their names were also entered as legal heirs and representatives of Ratnabhai Bhikhabhai Koli. However, since Shankarbhai Jethabhai – maternal uncle of respondent nos. 2, 3 and 4 was looking after these respondents as a guardian, Entry No. 146 was mutated in his name in the records of right on 18.12.1970.
2.3. Shankarbhai Jethabhai passed away many years ago and then the name of another maternal uncle Pathubhai Jethabhai came to be entered in the record of rights as a guardian of respondent nos. 2, 3 and 4 who were still minor. When Pathubhai Jethabhai expired, the name of the present petitioner Maniben who is the maternal Aunt (Mami) of respondent nos. 2, 3 and 4 had been entered into the record of rights as a guardian.
2.4. On the ground that the land was being cultivated by some other persons then the respondent nos. 2, 3 and 4, to whom the land had been allotted by the State for cultivation, the name of the Government was entered in the record of rights after vesting the land in the Government.
2.5. The present petitioner – Maniben requested the Collector, Banaskantha to return the land to her and the Collector noticing the limit of 4 acres of land, vide its order dated 08.07.1998 had regularized 4 acres out of 8 acres and 5 gunthas of Survey No. 117.
2.6. When the respondent realized the regularization on the part of the District Collector, for availing any opportunity of hearing to these respondents, they challenged the said order passed by the Collector, Banaskantha before the State Government under Section 211 of the Land Revenue Code.
2.7. This had aggrieved the respondent nos. 2, 3 and 4 and therefore, they challenged the order of the Collector, Banaskantha before the State Government. The Joint Secretary (Appeal) set aside the order of the Collector.
2.8. The order dated 24.03.2006 of the SSRD setting aside the order of the Collector, Banaskantha dated 08.07.1998 is challenged before this Court with the following prayers: -
“(a) Your Lordships may be pleased to allow and admit this petition.
(b) Your Lordships be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any appropriate writ, order or direction, quashing and setting aside the impugned order dated 24th March, 2006 passed by the Secretary, Revenue (dispute).
(c) The Lordship may pleased to stay the impugned order dated 24th March 2006 passed by the Secretary, Revenue (dispute) during the hearing and final disposal of this petition.
(d) Your Lordships may be pleased to pass such other and further relief in favour of the petitioner, as deemed just and proper in the facts and circumstances of the case.”
3. The respondent nos. 2, 3 and 4 appeared on caveat and had filed affidavit-in-reply giving the narration of the chronology of events and eventually has urged that this is the only land for the respondent nos. 2, 3 and 4 to earn their livelihood and they are the lawful owners of the entire land bearing survey No. 117 admeasuring 8 acres and 5 gunthas. It is also contended by them that they were minors and the petitioner’s husband who happened to be their maternal uncle has acted as guardian however, the petitioner cannot get the right, title and interest in the land and for getting the possession of the land or entering the name in the record o
