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Judgment
K.M. Thaker, J
This appeal, under Clause 15 of the Letters Patent, arises from the order dated 30.11.2009 passed by the learned Single Judge whereby the learned Single Judge has rejected the writ petition filed by present Appellants against the order dated 28.11.2003/ 25.5.2004 passed in Revision Application No. 4 of 2003. By the said order, the Revisional Authority, while rejecting present Appellants'' Revision Application, confirmed the order dated 29.04.1992 passed by the Appellate Authority who had, while rejecting present Appellants'' appeal (against the order of the first authority) vide its oder dated 29.04.1992, confirmed the first authority''s order dated 31.07.1991. Differently put, present Appellants have brought before us the judgment by the learned Single Judge rejecting the petition against three concurrent orders.
The facts involved in present appeal can be summarized thus:
2.1 The Appellants are the original Petitioners. The Appellants claim to be the owner of the land bearing S. No. 254 admeasuring 2-Acres and 30-Gunthas situate at Village Adalaj.
2.2 It appears from the record that the Prant Officer had, made a report that though the land in question was allotted on "grant" basis for agricultural purpose, it was used, for sometime, for kiln and then it was left unused resulting into breach of condition of "grant". In pursuance of the Mamlatdar''s said report, proceedings came to be initiated. The case was registered as "Breach of Condition Case No. 101 of 1986". The notices were issued, however, for want of proper service, due to absence of the concerned persons, the notices had to be declared as "published" at the site in presence of panchas, (as recorded in the order dated 31.07.1991). Despite the aforesaid procedure and even after several adjournments since no one attended the hearing, the Competent Authority proceeded with the hearing of the notice-proceedings and by order dated 31.7.1991 directed vesting of the land in question in the State Government. The said order dated 31.7.1991 came to be passed by the Competent Authority upon having reached the conclusion that (i) the land had remained unused since many years and was not put to use, and (ii) earlier the land was used for kiln purpose without obtaining prior permission of the authorities. The Competent Authority, on the basis of the material on record, specifically recorded that the land remained vacant from 1980 to 1991 and that both the actions amount to breach of the condition of "grant", inasmuch as the land was granted for agricultural use.
2.3 Against the said order dated 31.7.1991 the Appellants preferred appeal before the Collector, Gandhinagar. The said appeal was registered as RTS Appeal No. 36 of 1991. After hearing the Appellants, the Collector, Gandhinagar, by order dated 29.4.1992, dismissed the appeal and confirmed the order dated 31.7.1991 passed by the Prant Officer.
2.4 Aggrieved by the said order dated 29.4.1992 passed in RTS Appeal No. 36 of 1991, after lapse of almost 11 years the Appellants preferred revision application before the Secretary (Appeals), Revenue Department.
2.5 The said Revision Application came to be registered as Revision Application No. 4 of 2003. The Revisional Authority, after hearing the Appellants, passed order dated 28.11.2003/25.5.2004 and dismissed the Revision Application confirming the two orders passed by the Prant Officer and the Collector.
2.6 Being aggrieved by the order dated 28.11.2003/ 25.5.2004 passed in Revision Application No. 4 of 2003, the Appellants herein preferred the writ petition being Special Civil Application No. 7383 of 2008. The said petition was filed in or around April 2008 i.e. after lapse (delay) of almost 4 years.
2.7 The learned Single Judge, after considering the rival contentions, in light of the available record came to the conclusion that the orders passed by the authorities below did not suffer from any infirmity and did not warrant any interference and rejected the writ petition by order dated 30.11.2009. The Appellants are aggrieved by the said order. Hence present appeal.
Mr. Y.N. Oza, learned Senior Counsel, has appeared with Mr. Pinakin Raval, learned advocate, for the Appellants and Ms. Krina Calla, learned AGP, has appeared for the Respondents. We have heard the learned Counsel and perused the record. At the Appellants'' request and with consent of the Respondents, the appeal is heard for final decision.
Mr. Oza, learned Senior Counsel, submitted that there is no material to support and justify the Respondents'' claim that the land in question is new tenure land. The learned Senior Counsel vehemently submitted that the land did not come in the hands (i.e. was not allotted to) of the Petitioners or their forefathers, by way of "grant" but it is their ancestral land. He submitted that merely on the basis of the entry in the record and without anything more to support the entry, it cannot be concluded that the land in question is new tenure land. He further submitted that even the Revenue Authority, without any order or material, on its own cannot mutate entry describing any land as "New Tenure" land. He also submitted that the conclusion regarding the character and status of the land in question (i.e. considering the land in question as new tenure land) is unwarranted and unjustified besides being without support of any relevant and cogent material and that when the lands in question is ancestral land, there could be no question of alleged "grant" and consequently there could not be any question of breach of condition of "grant" and the impugned orders are rested on unjustified assumption not supported by any material. The learned Senior Counsel also assailed the conclusion that the babool trees standing on the land cannot establish use of land for agricultural purpose. Mr. Oza, learned Senior Counsel, also submitted that the notices were issued in name of dead persons and that any notice to the co-owners was not issued and that therefore, the proceedings and the orders are vitiated by breach of principles of natural justice, however, the learned Single Judge failed to appreciate the said vital issue. Mr. Oza, learned Senior Counsel, heavily relied on the order by the learned Single Judge in Special Civil Application No. 7878 of 1996 and the order dated 3.9.1998 in SCA No. 1848 of 1997 which came to be passed in view of the order in SCA No. 7878 of 1996.
4.1 Per contra, the learned AGP submitted that the land in question was given by way of grant. The learned AGP also submitted that the entry, which is existing in the revenue record since 1960-61, without any objection, conclusively demonstrates that the land in question is "new tenure" land and that therefore, all conditions applicable to the new tenure land particularly which is given on grant are applicable to the land in question. Ms. Calla, also submitted that the use of land for kiln and then leaving it unused for very long time tantamount to breach of condition of grant as the land was granted for agricultural purpose and it could not have been put to use for the purpose other than the agricultural purpose. The learned AGP also submitted that though it has been alleged that the notices were issued in the name of the persons who were dead before the issuance of notice however there is no material on record to demonstrate the said factual aspect. She also submitted that if at all any of the persons had died before the notices were issued then in response to the notice issued by the Competent Authority, the heirs or other persons/Petitioners ought to have remained present and given information regarding the persons, who had, as alleged by the Petitioner, died before the date of Notice. However, such details were not provided to the concerned authorities at the relevant time. Ms. Calla also submitted that the Appellants have failed to establish that the land in question is ancestral land. The learned AGP submitted that the delay in itself disentitles the Appellants for any relief.
It is pertinent that before us the Appellants contended that the lands in question are ancestral land. The purport of the Appellants'' submission is that the land has devolved on the Appellants as the heirs and that their forefathers owned the lands and it did not come in the possession and ownership of their forefathers either by way of "grant" by the State or by way of any right or benefit conferred by statute (e.g. in exercise of tenant''s rights to purchase the property).
5.1 We must note that the said contention is a substantial deviation from the Appellants'' contention before the authorities and probably before the learned Single Judge.
In view of such deviation in the contention, we inquired from the Appellants as to whether such contention was ever raised before the authorities below and whether the factual aspects (on the strength of which such contention can be raised) were ever established before the authorities below?
6.1 In response the learned Counsel for the Appellants could not place hands on any material on record but he referred to and relied upon the averments made (in para-4(N) and para-4(P) on page-48 & 49 of the paper book of present appeal) from the memo of their Revision Application No. 4 of 2003, however, even in those paragraphs there is no clear and specific averment asserting that the land is ancestral and did not come (i.e. was not allotted) in their hands - or in the hands of their forefather - by way of grant. All that is stated in the said paragraphs is:
4(n) It is incorrect to say that the disputed land is new tenure land as mentioned by the Prant Officer in his impugned order. Prant Officer has not done proceedings for verification of facts in respect of the said land. As a matter of fact, said lands are old tenure land. While promulgation of record of Gandhinagar area, said land have been wrongly mentioned as new tenure land. In respect of said land being new tenure land, no evidence of fact or change entry is available on record and yet, Prant Officer has not done any verification or verification about land whether it is new tenure or old tenure and, therefore, finding given by the Prant Officer is wrong and, therefore, same is liable to be set aside.
4(p) That the Prant Officer has conducted said proceedings while relying on so called proposal that intwado has been made on the said land. In reference to said proceedings, it is being alleged that the Appellants have committed an act of non agriculture but in respect of finding given by Prant Officer about intwada, no facts or truth has been verified. Applicants or their ancestors have never done intwado on the said land as alleged in the said order and, therefore, orders passed on the basis of so called proposals made by the Mamlatdar are liable to be quashed and set aside." (extracted from the translated version of original (which was in Gujarati language) Revision Application placed on record of present appeal by the Appellants).
6.2 The learned Counsel could not refer to and point out any clear and specific contention from the application memo to the effect that the land is ancestral land and was not allotted as "grant" and he could also not refer to any averment or material from record to establish that such contention was raised and/or specifically urged before the authorities.
6.3 In our view, there is substantial difference between the contention to the effect that the lands in question are "old tenure" lands and not "new tenure" lands and without any order or supporting material any entry describing the land as new tenure lands cannot be made; and the contention to the effect that the lands in question are ancestral lands and did not come in the hands of the Appellants or their ancestors by way of "grant" by the State.
6.4 Either from the order dated 31.07.1991 passed in Case No. 101 of 1986 or from order dated 29.04.1992 in R.T.S. Appeal No. 36 of 1991 or, as aforesaid, from the memo of Revision Application No. 4 of 2003 or from the order passed in the said Revision Application or from other documents on record (of the paper book of present appeal), the Appellants could not bring to our notice averment or contention specifically contending and asserting that the lands in question are ancestral lands and the Appellants or their forefathers did not get it by way of grant.
6.5 At this stage, it is pertinent to note that the said contention (i.e. the land is ancestral land and it devolved on the Appellants as the heirs and it was not allotted by way of grant to them or their forefathers but it is of their forefathers'' ownership) does not appear to have been expressly urged (though seems to have been subsequently added-by amendment-in the petition memo) during the hearing before the learned Single Judge. Actually on perusal of the petition memo, we noticed that the said contention was initially, not even stated in the petition memo but it cam to be subsequently added by virtue of amendment dated 12.08.2009 and necessary averments and ground of contention came to be added in the memo in form of amended/added para-2.4(A) and grounds-(C)(2).
6.6 The more pertinent aspect to be noted is that even after such amendment (dated 12.08.2009) in the memo the Appellants did not produce any supporting material (merely incorporated-added the averments and the ground) and they do not appear to have raised and actually argued the said contention before the learned Single Judge since on perusal of the order it does not come out that such contention was actually raised before the learned Single Judge. The order does not contain any reference of such contention and it does not show that the contention was raised and any supporting material was referred to. On the contrary, the learned Single Judge has recorded that "No other submissions have been made...."
6.7 The Appellants have not only failed to show from the record that the said contention was raised before the authorities, but they have also failed to show any material to support the contention. True it is that the Respondents also have not been able to show any material in support of the assertion that the land was assigned or allotted to the Appellants/their forefathers by way of grant. However, when the Appellants did not raise such contention (i.e. the land in their hands is ancestral land and was not allotted as "grant") before the authorities below and when there are, three concurrent orders by the authorities which came to be confirmed by the learned Single Judge, we are not inclined to entertain such new contention at this stage more particularly because (i) any material connected with the contention is not on record (ii) the foundation - made of relevant cogent evidence - is not laid before the authorities and (iii) in absence of such plea before the authorities the Respondents did not get opportunity or did not find it necessary to produce or lead any evidence (in absence of any plea/objection by the Appellant) whereas the Appellants were always aware about Respondents'' case (viz. land was allotted as "grant" and it was "new tenure" land).
A contention which was not raised before the Mamlatdar, Collector or the Revisional Authority and the factual platform (with supporting record) of which is not laid before the authorities cannot be received and entertained at the appeal stage, particularly when the contention is fact-based contention.
We have mentioned the aforesaid aspects in little more details because the said aspect is one of the major aspects differentiating present case from the facts in the backdrop of which the orders in the two cited cases i.e. SCA No. 7878/1986 and/or SCA No. 1848/1997 (on which the Appellants have placed reliance) were passed.
Now, so far as the Appellants'' explanation or defence about the land''s use for kiln is concerned, it is pertinent that except claiming that the bricks were found on the lands in question not because of kiln activity but because a room was to be constructed, and therefore, bricks were brought and kept on the lands in question and that neither they (i.e. the Appellants) nor their forefathers had used the land for kiln, the Appellants could not substantiate the said defence. The Authorities have not believed the said explanation in absence of any material. Furthermore, any material to persuade us to take different view of such disputed factual aspects is not brought to our notice. Hence the Appellants could not convince us to reach a contrary conclusion or to take different view.
In our view the contention that there were babool trees on the land in question and they were cultivated by the Appellants hence it cannot be said that the land was not used for agricultural purpose, is misconceived. The standing babool trees would not make the said activity an agricultural activity or would not tantamount to using land in question for agricultural purpose, more particularly when the Appellants could not show that regular cultivation of babool trees was being carried on by the Appellants.
All the aforesaid aspects of present case are materially different from the facts involved in, and were absent in the factual matrix of, the two cited cases on which, the Appellants have placed reliance. Therefore, we cannot consider the said orders by ignoring or overlooking the said distinguishing facts of present case. In the said two cases, the authorities did not pass any order on the ground of breach of condition of "grant".
In present case, the authorities have taken action not only on the premise that the lands in question are "new tenure" land but primarily on the ground that the Appellants caused and committed breach of the condition of "grant". It is the case of the Respondents that the lands were granted for specified purpose viz. for "agricultural use", however, the Appellants committed breach of the said purpose/condition of grant and put the lands to use for different purpose viz. kiln (bricks manufacturing activities), and then for many years held it unused (had stopped any activity, particularly agricultural use) and thereby, committed breach of the condition of "grant". It was on account of, and in view of the said reasons, that the impugned orders came to be passed.
Now, coming to the two orders passed by the learned Single Judge, in the cited cases. It is relevant to note that in the said two cited cases neither the question of ancestral lands nor the issue of allotment of land by "grant" was raised and more important is the fact that in the said two cases any question of breach of condition of "grant" was not raised before the Court and such aspects did not fall for consideration by the Court and that therefore, in our view, the order dated 04.02.1997 (SCA No. 7878 of 1996) and/or the order dated 03.08.1998 (SCA No. 848 of 1997) do not help the Appellants. Besides this, in the cited cases, the Petitioners had challenged the entry and prayed that the entry (with which the said Petitioners were aggrieved) may be set aside. In SCA No. 7878 of 1996, the Petitioners had prayed for declaration that: "...the land held by the Petitioner No. 1 at Survey No. 69 Village Ghatlodia, Taluka City Ahmedabad is of old tenure and further be pleased to direct the Respondents to extend all substantial benefits to the Petitioner treating the said land to be old tenure". The Petitioners, in present case, have not prayed for such declaration/relief.
12.1 As noted above, the two main aspects of present case, viz. (i) the lands allegedly being in the hands of the Appellants in view of allotment by way of "grant" by the State; and (ii) the alleged breach of condition of "grant", being absent in the cited two orders, the Appellants will not be able to derive any benefit from the said orders. In the said cases, the issue considered by the Court was dispute against the mutation of entry describing the lands as "new tenure" and any other factual aspects (e.g. allotment or assignment of the land by way of "grant" and/or breach of condition of "grant") did not fall for consideration by the Court in the said two cases.
12.2 Furthermore, the main and glaring aspect of present case (viz. three concurrent orders recording findings of fact against the Appellants) which, to that extent, differentiates present case from the cited cases restrains us from interfering with the findings of facts recorded by the authorities below in three concurrent orders.
12.3 The reliance placed on the decisions in the cited two decisions would not help the Petitioners since, as stated above, the facts of present case are different from the facts in the cited two decisions. We are, therefore, not persuaded and convinced and are not inclined to interfere with the findings of facts recorded by the first authority which came to be confirmed by the appellate and also by the Revisional Authorities and then also found favour with the learned Single Judge. Any case for interfering with the concurrent orders is not made out.
The Appellants had assailed and contested before the appellate authority and the revisional authority, the order dated 30.1.2009 passed by the first authority on the allegation that the Notices which were issued were, mostly, in the names of dead persons and the order passed by the Appellant authority was, in most cases, against dead persons. On this count the appellate and revisional authority have recorded that though the Appellants made such allegations, neither actual details were produced on record nor Appellants had requested, after giving details of the heirs/legal representatives, to impleade the heirs/legal representatives. Learned AGP also has, while opposing present appeal reiterated that same stand. We have noted the observations recorded by the authorities and we have also noted that even before us relevant details have not been placed on record. It is pertinent that in the memo or revision application in ground (H) and ground (J) some averments are made on this count. In ground (H) 10 names have been mentioned claiming that the said persons had died prior to issuance of notice however except in two cases the dates of death of the persons are not mentioned. The date of death of the person named at No. 8 is shown to be 19.1.2007 whereas according to first authorities'' order Notices were issued much before that date and even the order of the first authority was passed on 31.10.1991 i.e. before the death of said person. The date of death of the person at serial No. 3 in ground (H) is shown to be 29.5.1972 which is prior to the date of Notice and the first authority''s order, however, the brother of the said Havjiji Mafatji was one of the persons in whose name notice appear to have been issued but he also did not remain present before the first authority and did not bring the fact to the authority''s notice. In any of the cases mentioned in ground (H) the death certificates, which would disclose the date of death of the concerned persons, are not placed on record. More important is the fact that it is not (and it was not Appellant''s case before the authorities) the Appellant''s case that appropriate entries-incorporating the fact of death of the person was made in the revenue record and yet notices and order were issued in name of dead persons. In absence of such entry, reflecting death of the person and devolution of interests on the heirs, the authority is not supposed to know the fact and is not obliged to find out the details of the heirs and invite them. Similarly in ground (J) it has been alleged that wrong names have been mentioned in the order of the first authority however the details about correct names are not mentioned.
From the foregoing discussion, from the record of present appeal and on overall consideration of the facts in present case, it emerges that:
(a) there is no material on record to demonstrate and establish that the land in question is, as now claimed by the Appellants, ancestral land which has devolved on the Appellants from their forefathers (i.e. as the heirs).
(b) there is also no material on record to support the Appellants'' contention, or to demonstrate the fact, that the land in question has not come into their hands or did not come into the hands of their forefathers (i.e. was not allotted or is not allotted) by way of "grant" by the State (to them or to their forefathers) but is their ancestral land. The Appellants have not produced any material in support of their claim.
(c) the Appellants have not been able to show from the record (paper book of present appeal) that the aforesaid contention was raised by them before the authorities below.
(d) the Appellants have also not been able to demonstrate that the said factual aspect was duly supported, by cogent material, before the authorities below.
(e) from the record, it appears that the said contention is actually raised for the first time, during the hearing before us. The Appellants referred to the averments made in the memo of Revision Application No. 4 of 2003 (para-4 (n), page-48 and/or para-4(p), page-49), however, the said averments do not amount to clear statement/assertion raising such contention. It is not stated in clear terms that the lands are ancestral lands and have devolved on/inherited by the Appellants in their capacity as heir and not by way of "grant".
(f) The clear and specific averments to such effect are found to have been made for the very first time only by way of amendment dated 02.09.2009 made in the petition memo. However, as per the order of the learned Single Judge even after amendment the contention does not appear to have been actually raised and argued (and any material to support the submission was not placed on record) even before the learned Single Judge.
(g) so far as the revenue record is concerned, it is not in dispute that the entry describes the land as new tenure land and the said entry obtains on record at-least since 1960-1961.
(h) it is also not in dispute that until present proceedings came to be instituted after Mamlatdar''s report, the Appellants had not challenged the said entry and/or had not taken any action whatsoever, to either get the entry cancelled or to get it modified.
(i) it is pertinent to note that from the material available on record, it transpires that between 1964 and 1966, the consolidation proceedings were taken-up by the Settlement Commissioner and Director of Land Records and the consolidation scheme was implemented. Thereafter, in January 1966, the entry with regard to the said consolidation proceedings came to be made in Form No. 6. Even after the said proceedings, the Appellants do not appear to have taken any steps against the entry.
(j) it also comes out from the record that even after the proceedings came to be instituted by Mamlatdar (i.e. Breach Of Condition Case No. 101 of 1986) the Appellants do not appear to have questioned the entry and/or taken step to get it cancelled or modified by satisfying the Competent Authority.
(k) in face of the entry which seems to be in force at-least since 1960-1961 the Appellants now claim that the said entry does not reflect the correct status and position of the land in question.
(l) the Revision Application No. 4 of 2003 was filed by the Petitioners after delay of almost 11 years.
(m) besides the said delay of 11 years, further delay of 4 years has been caused in filing the petition.
The cumulative effect of all the aforesaid aspects do not permit us to accept the appeal and to interfere with the concurrent findings of fact recorded by three different authorities in three orders or to take different view than the decision taken in three concurrent orders and confirmed by the learned Single Judge and to interfere with the order of the learned Single Judge.
In view of the above discussion and for the reasons aforesaid, we are not inclined to accept the appeal. The appeal fails and the same is rejected.