The court emphasized the importance of considering the circumstances and intentions of the land allottees, especially in cases involving resettlement of refugees, and held that the orders directing vesting of the land were unreasonable and unjust.

JUDGMENT :

SANGEETA K. VISHEN, J.

1. By this petition, inter-alia, under Article 226 of the Constitution of India, the petitioners are praying for issuance of writ of mandamus, certiorari or a writ in the nature of certiorari so also, the direction for quashing and setting aside the order dated 28.07.2014 passed by the respondent no. 2 i.e. the Assistant Collector, Tharad as well as the order dated 15.07.2015 passed by the respondent no. 4 i.e. the District Collector whereby, the order of the Assistant Collector dated 28.07.2014, directing vesting of the land in the State Government, has been confirmed.

2. Issue rule, returnable forthwith. Mr. J.K. Shah, learned Assistant Government Pleader waives service of notice of rule on behalf of the respondents.

3. Tersely stated are the facts:

3.1 The ancestor of the petitioners, was refugee and residing at Kachchh. The ancestor of the petitioners (hereinafter referred to as “the allottee” or “the petitioners”, wherever the context warrants) was allotted the land situated at survey 365 at village Sukhpar, taluka Rapar, district Kutch. Since the land, was infertile, the allottee did not take the possession and requested the concerned authorities to allot the land at some other place. The allottee, did not find appropriate occupation at Rapar and hence shifted to taluka Tharad of district Banaskantha, where, they were allotted the part of land, bearing survey no. 23/1B/paiki vide order dated 28.04.1988 (hereinafter referred to as “land in question”). The petitioners are in possession and cultivating the land in question.

3.2. Apropos the applications filed by the allottees, the District Collector, Kachchh, passed an order dated 13.11.2013 directing restoration of the possession of the land allotted at villages: Nanda, Bambhansar, Sukhpar and Adesar to the State Government and the Mamlatdar, Rapar was directed to take possession. To the shock and surprise of the allottee, a notice came to be issued under section 79A of the Gujarat Land Revenue Code, 1879 (hereinafter referred to as the “Code”) requiring the allottee to vacate the land in question at taluka Tharad.

3.3 The petitioners appeared and pointed out that the land in question, is the only source of livelihood which has been in possession since last more than 24 years. The petitioners, also pointed out that the petitioners have no interest in the land allotted at district Kachchh and urged that considering the condition of the allottee, the proceedings under section 79A of the Code, may be dropped as there was no breach of conditions. The Assistant Collector, not considering the request, passed an order dated 30.05.2012 as he was of the opinion that the allottee was obliged to hand over the possession of the land of Kachchh district; however, the allottee, failed to do so and therefore, the conditions enumerated in the allotment order of the year 1988 passed by the Collector, Tharad, have been breached. The Assistant Collector, also concluded that the allottee, has not got the land cancelled and therefore, has taken benefits at two places. Accordingly, the Assistant Collector, directed vesting of the land in the State Government.

3.4 Being aggrieved, an appeal was preferred before the Collector, Banaskantha, which came to be partly allowed vide order dated 08.05.2014 and the matter was remanded to the Assistant Collector, who, passed an order dated 28.07.2014 against which, an appeal was preferred before the Collector, who passed the order dated 15.07.2015, confirming the order dated 28.07.2014. Hence, the present writ petition.

4. During the course of hearing of the captioned writ petition, Mr. S.P. Majmudar, learned advocate has tendered the affidavit-cumundertaking of the petitioners. The same is directed to be taken on record. The contents of which, read thus:

“1. I state that the petitioners have not availed any benefits from the land granted at Rapar Kachchh. It is further stated that in fact, the petitioners have not even taken posses