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Judgment
Akil Kureshi, J.—The applicant seeks review of judgement and order dated 21.8.2009 by which Letters Patent Appeal No. 1562/2009 came to be dismissed confirming the view expressed by the Learned Single Judge in order dated 6.7.2009 passed in Special Civil Application No. 2624/2009.
Briefly stated following facts emerge from record:
2.1. The applicant agricultural cooperative society(''the society'' for short) was granted Government waste land of village Nana Gujaria, Taluka Bhensan, District Junagadh by order dated 16.4.1954 for its cultivation on new tenure basis on certain conditions. Out of the land initially allotted, due to certain reasons with which we are not concerned, society returned a portion of the land and total land allotted to the society remained 144 acres and 5 gunthas.
2.2. Though order of grant of land is not on record, from the order dated 28.9.2007 passed by the Collector Junagadh, it appears that in sanad issued by Assistant Collector of land, it was provided that same was subject to circulars, resolutions and Land Revenue Laws and Rules in force. As per condition No. 1, the allotment was of new and indivisible tenure. As per condition No. 2, the allotee was required to use the land for personal cultivation and if it was found that the land was not so utilised, the grant was liable to be cancelled. As per condition No. 8, it was provided that in case of breach of any of the conditions, Government will reclaim the possession without paying any compensation. On these aspects there is no dispute between the parties.
2.3. Portion of the said land was required for Mota Gujariya Irrigation Project. Proposal for acquiring the required land i.e. approximately 44 acres of land was made on 7.4.1999. On 5.11.1999 acquiring body undertook measurements of the land at which point of time it was noticed that land was kept fallow since long.Subsequently notification u/s 4(1) of the Land Acquisition Act was published on 24.8.2000. On or around 18.12.2000, possession of the land was taken over by the acquiring body by private negotiations. Since it was found that land was kept fallow, proceedings in the year 2000 were initiated for cancellation of grant of land.
2.4. Assistant Collector however, by his order dated 18.1.2002 held that since the land is already acquired there is no question of breach of conditions. Proceedings were carried in appeal and remanded back to Assistant Collector. In his fresh order dated 8.4.2003 after remand, the Assistant Collector once again came to the same conclusion and also held that there was no breach of conditions.
2.5. Acquiring body challenged this order of Assistant Collector before the Collector who by his order dated 28.9.2007 held that there was clear breach of condition. That the society did not cultivate the land for years together. Some 5100 Babool trees had grown in the land indicating that land was not utilised by the society. Consequentially, the Collector cancelled the grant of land.
2.6. Society challenged the order of the Collector before the Government. The Revision Authority by order dated 21.10.2008 confirmed the order of the Collector.
2.7. Writ petition filed by the society challenging the orders passed by the Revenue Authority also came to be dismissed by judgement dated 6.7.2009. This judgement was challenged in Letters Patent Appeal which also came to be dismissed by an order dated 21.8.2009. It is this order which the applicant seeks review of.
Counsel for the applicant contended that after taking over the possession of the land and passing of the award, proceedings for breach of conditions could not be continued. He further contended that Section 79A of the Bombay Land Revenue Code under which such proceedings were initiated envisages possession of land with the grantee. Since in the present case, possession of the land was already taken over, powers u/s 79A could not be invoked. It was lastly contended that the acquiring body had no locus standi to challenge the order of the Assistant Collector who had from the material on record, come to a just conclusion that there was no breach of conditions.
Learned AGP opposed the Review Petition. Relying on the affidavit in reply filed by the State, she contended that question of breach of condition was a pure question of fact. No case of review is made out.
To our opinion, none of the grounds raised by the counsel for the applicant would permit us to interfere with the orders passed by the Revenue Authority as well as Learned Single Judge, or recall the previous order passed in Letters Patent Appeal.
Undisputedly, land was allotted to the society for its personal cultivation on new and impartable tenure on conditions that same may be put to cultivation within two years and if it is found that land is kept fallow, grant would be cancelled and the Government would reclaim the possession without paying any compensation. The Collector as well as the Revenue Secretary came to the definite finding of fact that for decades together land was kept fallow and not cultivated. Presence of 5100 babool trees which grow wild would indicate that for years together land was not put to any cultivation. Two revenue authorities have after detailed examination of materials on record, came to such factual findings. Such findings were upheld by the Learned Single Judge. It is not pointed out how such findings are perverse. We therefore, proceed on the basis that society had kept the land fallow for decades. This was noticed by the Revenue Authorities at the time of joint measurements. Mamlatdar was directed by the Deputy Collector vide his orders dated 12.5.2000 and 7.6.2000 to initiate proceedings for breach of conditions. Though the exact date of issuance of notice is not on record, the Petitioner itself in the writ petition stated that first notice was received in the year 2000 for breach of conditions. Possession of the land is stated to have been taken on 18.12.2000. Thus when the possession of the land was sought to be taken by the acquiring body through private negotiation, proceedings for cancellation of grant of land were already envisaged and initiated. Contention that such proceedings must abate upon possession being taken over cannot be accepted. From the order of the Collector dated 8.4.2003 it also emerges that at one stage processes were undertaken to pay compensation for acquiring the land, payment of such compensation was however, stopped. It would thus emerge that though the part of land granted to the society was under proposal for acquisition for irrigation project, for that very same land simultaneously proceedings for cancellation of grant of land were also going on. It maybe that due to urgency, acquiring body may have attempted to take possession, however, acquisition was not completed by payment of compensation. In the meantime, proceedings for cancellation of grant of land were carried on. Finding that there were serious breaches of important conditions, allotment of land was cancelled. Society cannot seek compensation for land, allotment of which was liable to be cancelled.
Contention that acquiring body could not question order of Assistant Collector cannot be accepted. The acquiring body is nothing but the irrigation department of the Government. If the allotment of land was not cancelled, it would have to pay compensation to the society. Such department was therefore, vitally interested in the issue of cancellation of allotment of land.
Situation that emerges is that the Government allotted its own land to the society for its personal cultivation. The society did not cultivate the land for long number of years. As per the terms and conditions, such allotment was liable to be cancelled and Government was entitled to reclaim the possession thereof without paying any compensation. The Petitioner society desires that such order of cancellation of allotment be quashed. Resultantly, the society be paid compensation for acquiring such land for irrigation project. If such prayer is accepted, it would bring about a situation whereby the Government would have to pay huge compensation for acquiring its own land which land was allotted to the society on certain conditions and such conditions were breached. It has also come on record that audited accounts of the society for the years 1992 to 1997 shows opening and closing balance of the society remained Rs. 141.70 ps for all these years. Vide order dated 8.2.1999 District Registrar of Cooperative Societies removed the Managing Committee of the society and appointed an administrator. Thus, the society had practically gone defunct. Looked from any angle, request of the Petitioner cannot be accepted. Granting such prayer would be wholly unconscionable and in exercise of discretionary writ jurisdiction, this Court would not be justified in accepting such a request.
In the result, review application fails. Same is dismissed.