Gujarat High Court
Sant Shri Asharam Ashram Through … vs State Of Gujarat on 17 April, 2026
Author: Sunita Agarwal
Bench: Sunita Agarwal
NEUTRAL CITATION
C/LPA/107/2026 CAV JUDGMENT DATED: 17/04/2026
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Reserved On : 24/02/2026
Pronounced On : 17/04/2026
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 107 of 2026
In R/SPECIAL CIVIL APPLICATION/11610/2025
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2026
In R/LETTERS PATENT APPEAL NO. 107 of 2026
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2026
In R/LETTERS PATENT APPEAL NO. 107 of 2026
With
R/LETTERS PATENT APPEAL NO. 108 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 11366 of 2025
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2026
In R/LETTERS PATENT APPEAL NO. 108 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 11366 of 2025
With
CIVIL APPLICATION (FOR ORDERS) NO. 2 of 2026 In
R/LETTERS PATENT APPEAL NO. 108 of 2026
In
R/SPECIAL CIVIL APPLICATION NO. 11366 of 2025
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
=============================================
Approved for Reporting Yes No
✔
=============================================
SANT SHRI ASHARAM ASHRAM THROUGH TRUSTEE AND
AUTHORIZED SIGNATORY RAJESHKUMAR SHADILAL BHARTI
Versus
STATE OF GUJARAT & ORS.
=============================================
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Appearance:
MR.MIHIR THAKORE, SENIOR COUNSEL WITH MR.RASHESH
SANJANWALA, SENIOR COUNSEL, MR.RUDRAM TRIVEDI AND
MR.PARINAZ FANIBANDA FOR MR. AADIT R SANJANWALA(9918)
for the Appellant(s) No. 1
MR.S. H. VIRK(7392) for the Respondent(s) No. 3
MR.GURUSHARAN H. VIRK, LD.GOVERNMENT PLEADER WITH
MS.DHARITRI PANCHOLI AND MR.BRIJENSINGH THAKUR,
GOVERNMENT PLEADERS for the Respondent(s) No. 1,2,4,5,6
=============================================
CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR.JUSTICE D.N.RAY
CAV JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE
MRS. JUSTICE SUNITA AGARWAL)
1. For the convenience of readers, the judgment is
divided into parts as indicated in the table of contents, given
hereinbelow :-
Table of contents
Sr. Subject Page
No. Nos.
I. Introduction 3
II. Common Facts of both the Writ Petitions 5
III. Contentions Relating To The Current 9
Proceedings
IV. Appellant’s / petitioner’s case 14A. Letters Patent Appeal No.108 of
2026:
Submissions Of Mr.Mihir Thakore, The 14
Learned Senior Counsel For The Appellant
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B. Letters Patent Appeal No.107 of 2026:-
Submissions Of Mr.R.S. Sanjanwala, The 39
Learned Senior Counsel For The Appellant
V. Submissions of Mr.G. H. Virk, the learned 46
Government Pleader for the State
respondentsVI. Arguments in rejoinder of both the sides. 59
VII. Analysis 63
A. Facts culled out from the record 63
B. Conclusion 69
I. INTRODUCTION
2. The abovereferred two letters patent appeals under
Clause 15 of the Letters Patent, are directed against two
separate orders of the same date passed by the learned Single
Judge of this Court in two writ petitions filed by the appellant
herein, namely Sant Shri Asharam through its authorized
signatory Rajeshkumar Shadilal Bharti.
3. The Special Civil Application No.11610 of 2025 has
been filed with the following reliefs:-
“(a) The Hon’ble Court may be pleased to issue an
appropriate writ, order or direction to quash and set aside
the order dated 18.07.2025 passed by Gujarat Revenue
Tribunal in Appeal/AMD/82/2025 (part of Annexure B Colly);
(b) Pending hearing and final disposal of this petition, this
Hon’ble Court may be pleased to stay operation,
implementation and execution of the order dated 18.07.2025
passed by Gujarat Revenue Tribunal in Appeal/AMD/82/2025
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(c) Pending hearing and final disposal of this
petition/Application, this Hon’ble Court may be pleased to
stay operation, implementation and execution of the order
dated 04/04/2025 passed by the City Mamlatdar, Sabarmati,
Ahmedabad in No. JMN/DABAAN/MOTERA/CASE No. 5/2023
(part of Annexure B Colly);
(d) Pending the hearing and final disposal of this petition,
the Hon’ble Court may be pleased to direct the respondents
authorities to maintain status quo and not take any coercive
measures to takeover possession of the Petitioner’s Ashram
land;
(e) Interim and Ad-interim relief in terms of prayer clause(b)
above;
(f) For such other and further reliefs that the Hon’ble Court
deems fit in the interest of justice.”
4. In Special Civil Application No.11366 of 2025,
following reliefs have been sought for:-
“(a) The Hon’ble Court may be pleased to quash and set
aside the order dated 18.07.2025 passed by Gujarat Revenue
Tribunal in Appeal/AMD/83/2025 (part of Annexure B Colly);
(b) Pending hearing and final disposal of this
petition/Application, this Hon’ble Court may be pleased to
stay operation, implementation and execution of the order
dated 18.07.2025 passed by Gujarat Revenue Tribunal in
Appeal/AMD/83/2025 (part of Annexure B Colly)
(c) Pending hearing and final disposal of this
petition/Application, this Hon’ble Court may be pleased to
stay operation, implementation and execution of the order
dated 04/04/2025 passed by City Deputy Collector (West)
Ahmedabad in Sharatbhang/Case No.7/2023;
(d) Pending the hearing and final disposal of this petition,
the Hon’ble Court may be pleased to direct the respondents
authorities to maintain status quo and not take any coercive
measures to takeover possession of the Petitioner’s Ashram
land;
(e) Interim and Ad-interim relief in terms of prayer clause (b)
to (d) above;
(f) For such other and further reliefs that the Hon’ble Court
deems fit in the interest of justice.”
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5. The writ petitions, thus, were directed against two
separate orders of the same date 04.04.2025, passed by the
City Mamlatdar, Sabarmati, Ahmedabad in
JMN/Dabaan/Motera/Case No.5 of 2023 and City Deputy
Collector (West), Ahmedabad in Sharatbhang/Case No.7/2023.
The orders of the Gujarat Revenue Tribunal (GRT) are also of
the same date in two separate appeals.
6. The learned Single Judge has dismissed both the writ
petitions upturning the challenge to the orders of forfeiture
and eviction from the lands, subject matter of the aforesaid
proceedings. Both the letters patent appeals, though, have
been heard simultaneously and separately, but since there are
common facts and some overlapping issues, we deem it fit and
proper to decide both the appeals by this common judgment,
for the sake of brevity and clarity. However, the specific
issues pertaining to each of the two writ petitions would
obviously be dealt with separately in this judgment at
appropriate stages.
I. COMMON FACTS OF BOTH THE WRIT PETITIONS:-
7. The common facts in both the writ petitions are that
the petitioner, namely Sant Shri Asharam Ashram is a
registered Public Charitable Trust under the provisions of the
Gujarat Public Trusts Act‘ 1950 bearing registration
No.E/2345.
8. The object of the trust, as mentioned in its
constitution, is to undertake charitable, educational and
spiritual activities, to cultivate spiritual faith in people, give
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spiritual education, uplift and enlighten people, educate
people of mental and physical well being through Ayurveda,
cultivate harmony and friendship in different communities,
educate people on Indian culture and tradition, to develop
patriotism, educate the weaker section of the society, etc.
9. It is the case of the petitioner trust that it was allotted
/ granted about 39,094 sq.mtrs of land at Mouje Village
Motera, Taluka Gandhinagar (now Taluka Sabarmati, District
Ahmedabad) by orders of the State Government from time to
time. The Ashram is spread over the land conglomeration of
39,094 sq.mtrs. which was allotted to the petitioners by
undertaking due process of law. A Gurukul is located on the
land allotted vide order dated 30.04.1980 (amended on
26.03.1981) and the constructions on the said land have been
raised after the development permission dated 28.05.2008.
10. The remaining constructions are on the lands granted
vide orders dated 23.07.1992, 16.12.1997 and 06.01.1999. As
noted by the learned Single Judge, the petitioner has applied
for regularization of the said constructions on the said balance
lands, for which applications are pending consideration as on
date. The documents regarding the allotment of lands,
development permission dated 28.05.2008 and the
regularization applications made in around February’2023,
are appended with the writ petition. It is noted therein that as
stated, the applications for regularization of the existing
constructions were made prior to the initiation of proceedings
in question in the month of October’ 2023.
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11. The petitioner has produced the photographs of the
Ashram to demonstrate various activities undertaken by the
Ashram and that it runs a school on the allotted lands based
on the permission obtained from the authorities along with
the hostel facilities for hundreds of children. The existing
structures are being used for meditation, spiritual activities
including Ayurvedic, Homeopathic and Naturopathic clinics,
etc. Various communications of praises on the activities
received by the petitioner Trust have been placed on record.
12. There is another Trust of the same organization in the
name of Sant Shri Aashramji Mahila Udhyan Ashram, which
was allotted an additional area of 10 acres from survey
No.282/A/paiki by an order dated 05.01.1999 for afforestation,
copy whereof has also been placed on record. As per
Condition No. ‘2’ of the said allotment order, if the area
allotted came to less than 10 acres, additional area for
afforestation would be given from land next to the Ashram for
afforestation.
13. It is the common case of the petitioner in both the
writ petitions that since the area allotted for afforestation was
less than 10 acres, the petitioner was given permission to
cultivate trees in the areas adjoining Ashram. The petitioner
has grown more than 300 trees in the said area surrounding
the Ashram.
14. It is the categorical case of the petitioner in both the
writ petitions that the petitioner is not claiming any
ownership or occupancy rights in the area over and above
39,094 sq.mtrs and that the petitioner has not put the
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additional land other than allotted area to any use /
construction thereon. The case of the petitioner is that the
petitioner – trust had cultivated the trees and the additional
land in its occupation is open and remained vacant at all
times.
15. It is also the case of the petitioner that the additional
area of adjoining land, next to the Ashram for afforestation,
was made up of uneven lands and Kotars. Because of the flow
of water from the Kotars, there was soil erosion and the trees
planted by the Trust were being damaged. The petitioner,
therefore, has constructed a retaining wall over the said land,
but claims no ownership of the said surrounding land. It is
open and vacant.
16. It is the case of the petitioner that vide letter dated
04.10.2007, the petitioner requested the Collector,
Gandhinagar to allot an additional area of 11,982 sq.mtrs
from survey No.282/A/paiki.
17. The State Government passed a resolution dated
06.01.1999 to the effect that consideration may be taken from
the petitioner for the additional area of 4,860 sq.mtrs. within
30 days.
18. It is the case of the petitioner that the said land (of
4,860 sq.mtrs.) was allotted for all purposes but only as a
procedural formality, the Collector was directed to accept the
consideration / Upaj Dand and issue a formal order. Even by
an order dated 12.09.1999, the encroachment of 4,860
sq.mtrs had been regularized on consideration to the tune of
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Rs.2,39,841/-, duly deposited by the petitioner, receipt of
which was issued on 28.01.1999 bearing No.71.
19. The stand of the petitioner is that the petitioners had
deposited Rs.61,819/- in excess, in respect of the allotment
order of the year 1997 and the said excess amount was settled
with regard to Upaj Dand amount to be paid for allotment in
respect of Nadi paiki land. Additionally, a panchnama was
carried out on 07.01.2009 by the Circle Officer, which also
records that the petitioner has been allotted total 7,748
sq.mtrs of land from Sabarmati Nadi (Sabarmati River).
III. CONTENTIONS RELATING TO THE CURRENT
PROCEEDINGS:-
20. It is the common case of the petitioner to challenge
the orders passed in Dabaan and Sharadbhang proceedings,
that on 03.06.2021, Ahmedabad Urban Development Authority
(AUDA) wrote to the Collector, Ahmedabad to reserve certain
land and not to create any third party rights, on such lands
until further instructions. The said communication included
petitioner’s land admeasuring 17,916 sq.mtrs amongst other
23 lands owned by the State Government and gauchar land,
as indicated in a table therein.
21. On 25.01.2022, the Collector, Ahmedabad passed an
order to reserve the aforesaid 24 lands (including the
petitioner’s land) for acquisition for future plan of
Commonwealth Games / Olympic Games. The petitioner has
obtained the order dated 11.09.2023 of the State Government,
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which provided for formation of a special purpose vehicle by
the name of Gujarat Olympics Infrastructure and Planning
Corporation Ltd. (GOLYMPIC) to monitor and coordinate
works towards development of Sardar Vallabhbhai Patel
Enclave, copy whereof had been placed on the record of the
writ petition.
22. At that stage, the petitioner filed a Special Civil
Application No.17521 of 2024 challenging the order dated
25.01.2022 of the Collector imposing reservation, which was
disposed of by the judgment and order dated 26.03.2025 on
the statement made in the affidavit of the City Deputy
Collector that there was no reservation and the
communication dated 25.01.2022 of the Collector was merely
an inter-departmental communication.
23. A perusal of the memo of the said writ petition
brought on record indicates that the challenge therein was to
the communication dated 25.01.2022 on the apprehension
that such reservation may entail forfeiture of petitioner’s land.
The petitioner contended therein that the reservation of land
cannot be based on presumptive forfeiture and the alleged
breach of condition is a speculative and legally impermissible
reason.
24. A further perusal of the judgment and order dated
26.03.2025 of disposal of the said petition indicates that the
Writ Court, while noticing the statement of the City Deputy
Collector on oath, has directed the State authorities to place
an entry as regards the order of disposal of the said writ
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petition in the revenue record, for the fact that the effect of
the order dated 25.01.2022 has already been mutated in the
revenue record vide entry No.9180.
25. Thereafter, a notice dated 06.10.2023 under Section
79A of the Code was issued to the petitioner for breach of
condition Nos.3, 6 and 7 in respect of the allotment order
dated 30.04.1980 and condition No.2 of the allotment orders
dated 23.07.1992 and 16.12.1997. The proceedings under
Sharatbhang Case No.7 of 2023 are in furtherance of the said
show cause notice.
26. The petitioner filed a reply dated 30.11.2023 to the
said notice and a further reply dated 13.06.2024 was filed
with a list of documents dated 20.06.2024; third reply dated
10.02.2025 was filed along with the list of documents and
fourth reply is dated 25.02.2025.
27. By order dated 04.04.2025, the City Deputy Collector
(West), Ahmedabad forfeited the lands granted to the
petitioner by the orders dated 30.04.1990 (amended on
26.03.1991), 23.07.1992 and 16.12.1997, for breach of
conditions of the said orders and directed for removal of the
constructions made by the petitioner.
28. Parallelly, by issuance of another notice under Section
61 of the Code dated 31.08.2023, the Dabaan Case No.5 of
2023 was registered by the City Mamlatdar, Sabarmati and an
order of even dated, i.e. 04.04.2025 has been passed directing
the petitioner to vacate about 15,778 sq.mtrs. of land
encroached by it.
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29. Initially, a Special Civil Application No.4883 of 2025
was filed challenging the order dated 04.04.2025 in Dabaan
Case No.5 of 2023, which was disposed of vide judgment and
order dated 15.04.2025 granting liberty to the petitioner to
avail alternative remedy.
30. Two separate revision applications were filed before
the Gujarat Revenue Tribunal (GRT) challenging the orders
passed in the Dabaan and Sharatbhang proceedings. Both the
appeals have been dismissed by separate orders of even date,
i.e. 18.07.2025, confirming the orders passed by the City
Deputy Collector (West), Ahmedabad.
31. The learned Single Judge has dismissed the writ
petition challenging the proceedings in the Sharatbhang Case
No.7 of 2023 by holding that from the material on record, it
emerges that the primary focus of the petitioner in the said
petition is on 4860 sq.mtrs. of land, which is forming part of
the water body, i.e. Sabarmati River (Sabarmati Nadi). Such
lands cannot be regularized. As per own contention of the
petitioner therein, the petitioner has applied for
regularization of the said pieces of the land in the year 2023,
which itself indicates that the exercise undertaken by the
petitioner to cure the breach of conditions is an effort to
overreach the process of law. No direction, as such, can be
given to the authorities as regularization of encroachment on
the land of water body (Nadi area) is impermissible, in view of
the decision of the Apex Court in Writ Petition (Civil)
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No.295 of 2022 (Dated 13.11.2024), wherein direction has
been issued to preserve and restore all water bodies in the
entire country.
32. Another writ petition, namely Special Civil Application
No.11610 of 2025 filed against the order passed in Dabaan
Case No.5 of 2023 has been dismissed noticing that the said
proceedings have been initiated by the State invoking Section
61 of the Code on the ground of encroachment of 15,778
sq.mtrs. area in addition to the allotted / regularized area of
33,980 sq.mtrs. The measurement sheet dated 31.07.2023
(produced at page No.353 of the paper-book of the said
petition) was prepared between 21.07.2023 and 26.07.2023,
making reference points of all the areas surrounding the
survey No.282/A/paiki. The aforesaid measurement was
carried out by using D.G.P.S, i.e. Differential Global
Positioning System, which shows that the petitioner is in
encroachment of 15,778 sq.mtrs. of the land belonging to the
State Government.
33. The challenge to the measurement sheet dated
31.07.2023 was upturned by the Writ Court noticing that the
orders, subject matter of challenge therein, had been passed
following the principles of natural justice and taking into
consideration the documents on record. Moreover, the
petitioner has failed to show any legal right of occupying the
lands in question. Summary eviction proceedings under
Section 61 of the Code, as such, requires no interference.
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IV. APPELLANT’S / PETITIONER’S CASE.
A. LETTERS PATENT APPEAL NO.108 of 2026: Submissions
of Mr.Mihir Thakore, the learned Senior Counsel for the
appellant:-
34. It is the case of the petitioner that both the
proceedings for Sharatbhang and Dabaan were initiated
simultaneously just to obtain the petitioner’s land by hook or
crook, under any circumstances, and the entire proceedings
being premediated are grossly arbitrary.
35. Mr.Mihir Thakore, the learned Senior Counsel for the
petitioner referring to the communications dated 03.06.2021,
25.01.2022, 26.09.2023 and 29.09.2023 exchanged between
AUDA and the Collector; the City Deputy Collector and the
Mamlatdar vehemently argued that the entire proceedings
initiated by the Mamlatdar with the notice dated 06.10.2023
under Section 79A of the Code suffers from legal mala fide,
inasmuch as, in a preplanned manner, the Ashram’s land is
being taken away for the purpose of developing a sports
enclave for Commonwealth / Olympics 2036, along with other
surrounding lands in the area. The communication by AUDA
dated 03.06.2021 for including the Ashram’s land as available
land suggesting initiation of Sharatbhang proceedings by the
State, on the allegations of unauthorized constructions, is a
clear indication of what had been transpired for initiation of
the proceedings under Section 79A for forfeiture of the
Ashram’s land, where constructions are existing for more than
26 years.
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36. The special purpose vehicle by the name of Gujarat
Olympics Infrastructure and Planning Corporation Ltd.
(GOLYMPIC) has been incorporated for development of the
Sardar Vallabhbhai Patel Sports Enclave (SVP Enclave). The
Urban Housing and Urban Development Department of the
State has issued an order dated 11.09.2023 for formation of a
committee comprising of the officers of Ahmedabad Municipal
Corporation, AUDA, Collector and other officers of AUDA for
finalization of land parcels for SVP Sports Enclave.
37. A bare reading of all the aforesaid communications
demonstrate the extraneous factors played in their minds to
initiate action for forfeiture of the Ashram’s land. The show
cause notice dated 06.10.2023 itself suffers from arbitrariness
guided by irrelevant considerations leading to passing of an
order, which in turn suffers from the vice of legality. Reliance
is placed on the decision of the Apex Court in the case of
Siemens Ltd. v. State of Maharashtra, [(2006) 12 SCC
33] and Oryx Fisheries (P) Ltd. v. Union of India, [(2010)
13 SCC 427] to substantiate the submissions of the
proceedings being arbitrary and guided by wholly extraneous
and irrelevant considerations.
38. It is vehemently submitted that in the communication
dated 03.06.2021,when AUDA proposed reservation over the
petitioner’s land with the noting that the same is required to
be forfeited on the ground of breach of conditions, no
proceedings were pending against the petitioner nor any
notice had been issued alleging the breach of the conditions.
The petitioner was served with the notice dated 31.08.2023
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from the office of the City Mamlatdar, Sabarmati, Ahmedabad
under Section 61 of the Code calling upon him to show cause
as to why penalty be not levied and possession be not taken
with respect to the area admeasuring (i) 6489 sq.mtrs. from
survey No.282/A/paiki (ii) 3585 sq.mtrs. from gamtal; and (iii)
6104 sq.mtrs from Sabarmati Nadi.
39. The said notice has been issued purportedly on the
basis of the measurement sheet dated 31.07.2023 prepared by
the DILR on the instructions of the Collector, Ahmedabad. The
survey for preparing measurement sheet was conducted
behind the back of the petitioner, inasmuch as, the petitioner
was never notified in advance of any measurement exercise to
be conducted by the DILR.
40. It was further argued that the measurement sheet is
grossly erroneous, inasmuch as, the Sim Rekha, which was
shown to be passing from Banjaara Vaas in all the earlier
layouts (of 1998, 2008 and 2013), has been shifted. The
measurement sheet of the year 2023, has been prepared in
the mala fide premediated exercise, where respondent
authorities had made up their mind even before the issuance
of the show cause notice to forfeit the land of the petitioner
and the entire exercise conducted thereafter, was aimed to
justify the alleged breach.
41. The submission is that the present is a case, where
the respondent authorities first reached at a definite
conclusion about alleged breach and that the land of the
petitioner was to be forfeited and, as such, the subsequent
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proceedings undertaken by them became an empty ritual and
idle formality. The judicial scrutiny in the decision of the quasi
judicial authority, therefore, would require an inquiry as to
whether while acting in exercise of its statutory power, such
authority has acted fairly and with open mind, for initiating
the proceedings under Section 79A of the Code initiated in
Sharatbhang Case No.7 of 2023. Even Section 61 of the Code
for Dabaan Case No.5 of 2023 initiated against the petitioner
declaring it as an unauthorized occupant / encroacher, are
initiated in the same manner. The bias of the respondent
authorities, which was latent in the show cause notices
became patent in the orders of the cancellation of the
allotment of the land granted to the petitioner between the
years 1980 to 1997 for forfeiture of the land and eviction from
the lands legally occupied by the petitioner – trust, terming it
as an encroacher or unauthorized encroacher arbitrarily.
42. It was argued that the entire proceedings in both the
cases under Sections 61 and 79A are, thus, vitiated by the
bias, which can be clearly discerned from the communications
exchanged between the respondents from 03.09.2021 to
29.09.2023 (as noted hereinbefore), inasmuch as, the alleged
breach and encroachments had been prejudged at the stage of
the show cause notice itself.
43. Placing reliance on the decision of the Apex Court in
Oryx Fisheries (P) Ltd.(supra), it was argued by the
learned Senior Counsel that justice is rooted in confidence
and must be the goal of quasi-judicial authorities while
exercising its jurisdiction as to inspire confidence in the minds
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of those subjected to its jurisdiction. Such authorities must act
with utmost fairness which must be manifested in its order
itself. It is settled that the principle that “justice must not only
be done but it must imminently appear to be done as well” is
equally applicable to the quasi-judicial proceeding.
44. The orders passed by the quasi-judicial authorities, if
bereft of reasons, or are guided by extraneous or irrelevant
considerations, cannot stand the test of judicial scrutiny with
the standards of the mind of a man of ordinary prudence. A
case where the quasi-judicial authorities acted in a manner
where the alleged guilt has been prejudged at the stage of
initiation of the proceedings itself before issuance of the
show cause notices itself, would lead to an unescapable
conclusion that there exists a real danger of bias and any
action taken thereafter would have to be quashed. The
submission is that the present case squarely falls within the
ratio of bias and action taken with prejudged mind
propounded by the Apex Court in Oryx Fisheries (P) Ltd.
(supra). The same principles can be discerned from the
decision in Siemens Ltd. (supra).
45. The entire proceedings are vitiated, as such, and both
the orders forfeiting the Ashram’s land are liable to be
quashed on this ground alone.
46. Elaborating further, it was argued from another angle
that this is a case where the factual aspects starting from the
letter of AUDA dated 03.06.2021, formation of Committee by
the State Government by the order dated 11.09.2023,
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information in the brochure for the Sardar Vallabhbhai Patel
Sports Enclase (SVP Enclave) for future planning of
Commonwealth Games / Olympics games, a project of Gujarat
Olympics Infrastructure Planning Corporation Ltd.
(GOLYMPIC), (a special purpose vehicle), and subsequent
actions taken together, sequentially are the reflection of
actual reasons guiding the respondent authorities to initiate
action for forfeiture of the Ashram’s land, which is for the
development of SVP Enclave for Olympic games’ 2036 for
which India is pitching with the organizers.
47. It was argued by the learned Senior Counsel for the
petitioner that there is no kind of allegations of personal mala
fides against anyone, but it is a case of legal mala fide as the
premeditated action of the respondent authorities would fall
within the meaning of an action taken with the oblique and
indirect object, in complete disregard of law and rights of the
parties as well as without any lawful excuse. It was argued
that malice is attributed to the State as its actions are
wrongful and willful without any reasonable or probable
cause. They are a deliberate act not only in complete
disregard of law but also in disregard of the rights of the
petitioner.
48. In support of these submissions, reliance was placed
upon the decisions of the Apex Court in State of A.P. v.
Goverdhanlal Pitti, [(2003) 4 SCC 739], Kalabharati
Advertising v. Hemant Vimalnath Narichania, [(2010) 9
SCC 437] and G. Jayalal v. Union of India, [(2013) 7 SCC
150].
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49. The submission, thus, is that the show cause notice
dated 31.08.2023 issued by the City Mamlatdar, Sabarmati,
Ahmedabad under Section 61 of the Code calling upon the
petitioner to show cause as to why action be not initiated due
to alleged illegal encroachment on the Government lands,
with the proposed action to impose penalty and removal of
possession, and the orders passed in furtherance thereof, are
all liable to be quashed suffering from bias and legal mala
fide. On the same ground, the action initiated with the show
cause notice dated 06.10.2023 under Section 79A of the Code
on the ground that the petitioner has breached the condition
Nos.3, 6 and 7 in respect of the allotment order dated
30.04.1980 and condition No.2 of the allotment orders dated
23.07.1992 and 16.12.1997, leading to forfeiture of the
petitioner’s land for summary eviction, are all liable to be
quashed, outrightly.
50. In furtherance thereof, it is vehemently argued by
Mr.Mihir Thakore, the learned Senior Counsel for the
petitioner that the petitioner came to know from reliable
sources that in a meeting of the higher officials held in
December’ 2024 for the purposes of developing a sports
complex for Olympics’ 2036, a plan was prepared for taking
the Ashram’s land and other surrounding lands and then to
initiate summary proceedings under Section 79A, in a
premeditated exercise to grab the petitioner’s land on the
allegation that no maps and / or construction permission are
produced on record and the constructions existed on the spot
are illegal and that the petitioner Trust indulged in
profiteering by sale of Ayurvedic medicines.
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51. The submission is that the lands, subject matter of
proceedings in Sharatbhang Case No.7 of 2023 are the lands
allotted to the petitioner Trust by the competent authority in
the years 1980 to 1997. The petitioner Trust has been
registered under the Bombay Trust Act’ 1950 and its
objectives are charitable in nature. The lands in question have
been used for educational and spiritual activities. Amongst its
various activities, the petitioner is running a Gurukul,
distributes spiritual literature to bring spiritual awareness
among the public without charging any money, medical
services at the clinic are being provided free of cost to the
beneficiaries and the medicines are given to the ailing
beneficiaries by the doctors themselves at a very nominal
rates. The school fee of the Gurukul and schools run by the
Trust are very nominal at the rates sanctioned by Fee
Regulatory Committee. The fee collected is being utilized for
providing facilities and infrastructure to the students. All
educational and ancillary facilities in the schools / Gurukul are
for the benefits of the children at a very nominal rates.
52. The primary objective behind all activities of the
Ashram (Trust) is not driven by profits, but is charitable in
nature. The dominant purpose is to offer services for the
betterment and benefit to its large number of beneficiaries.
All spiritual and educational activities of the Trust, thus,
would qualify its charitable activities and cannot be
considered as profit oriented activities.
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53. It was argued that the summary proceedings of
eviction under Section 79-A of the Code could not have been
conducted on the allegations of the Trust having been
indulged in profiteering or profit making activities, inasmuch
as, any action on such allegation would require a full-fledged
inquiry into the audited financial statements of the petitioner
Trust, which are regularly being produced before the Charity
Commissioner.
54. The land in question is in use of the petitioner Trust
over 45 years and the activities in accordance with the
objectives of the trust are being carried out over the same,
which are beneficial to a large section of the society, who are
beneficiaries of the Trust. The breach in the condition of
allotment as also the proceedings for summary eviction from
the lands in question on the basis of DILR Report of the year
2023, where no finding of fact could have been recorded, are
all liable to be set aside.
55. The submission is that the petitioner was given the
lands in question in the order of grants passed by the State in
accordance with the provisions of the Land Revenue Code,
itself. Any action of the State under Section 79A in a summary
trial bereft of any evidence in the matter of grant of land, in
view of the above submissions, cannot be sustained. The
entire proceedings of eviction under Section 79A on the
ground of breach of conditions in Sharatbhang Case No.7 of
2023 is, thus, liable to be quashed.
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56. On the scope of Section 79A of the Code, it was
vehemently argued by Mr.Thakore that Section 79A is a
summary eviction procedure conferring power in the hands of
the competent authority for eviction of any person
unauthorizedly occupying or wrongfully in possession of any
land, to which he is not entitled to the use or occupation or
which he ceased to be entitled by reasons of any of the
provisions of the Revenue Code. However, for declaring any
person unauthorizedly occupying or wrongfully in possession
of any land, there has to be an inquiry, wherein opportunity of
hearing is to be provided to the concerned person, who is in
occupation. For initiation of the eviction proceedings under
Section 79 of the Code, it is incumbent that the conditions of
the said provisions are attracted, as found in Clauses (a) and
(b) of the said Section.
57. The Clause (a) of Section 79 provides for eviction of a
person, who is in use or occupation of any land to which he is
not entitled to or has ceased to be entitled to under any of the
provisions of the code. The second condition, as contained in
Clause (b) of Section 79, refers to transfer of any land in
violation of certain provisions of the Code, mentioned therein.
58. The power conferred upon the Collector for summary
eviction of any person terming him as unauthorized occupant
or being in illegal use of occupation being guided by the
provisions of Section 79 of the Code, would require an inquiry
and adjudication about the status of the user or the occupant
of the said land.
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59. In the instant case, there cannot be a dispute that the
lands in question, subject matter of Sharatbhang Case No.7 of
2023, are the lands allotted to the petitioner by the competent
authority as early as in the years 1980, 1992 and 1997. With
the allotments, the petitioner has been conferred with the new
tenure rights in the lands and became its proprietor. There is
no cancellation or revocation of allotment. No proceedings,
whatsoever, has been initiated against the petitioner prior to
issuance of the show cause notice under Section 79A for
summary eviction. The petitioner cannot be held an
unauthorized occupant or being in wrongful possession of the
land, which was of its proprietorship.
60. It was further argued that the petitioner got the
occupation of the lands in question in the year 1989 after first
allotment order and the constructions were raised from the
year 1997 onwards. There are two regularization orders of
1992 and 1997, which further demonstrate that the State
Government itself regularized the occupation of the
petitioner, which was termed initially being without the
permission of the Collector. The pieces of lands comprising
total area of 39,094 sq.mtrs. have been duly allotted to the
petitioners and are in its use and occupation being the lawful
proprietor of the lands. The eviction of the petitioner from
33,980 sq.mtrs on the premise of being unauthorized
occupant or in wrongful possession of the allotted land, is
wholly arbitrary, mala fide and illegal exercise of power on the
part of the respondents.
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61. It was vehemently argued that eviction of a proprietor
or a person who has been put in possession of any State land
after a valid grant, can only be permissible in a substantive
proceedings, which may be conducted for cancellation of
allotment on the allegation of breach of condition, wherein
opportunity to lead evidence is to be afforded. There is
absolutely no evidence on record to forfeit the petitioner’s
land by summary eviction and the respondent proceeded on
the mere allegations of breach of condition.
62. Elaborating further, it was submitted by the learned
Senior Counsel for the petitioner that the grant and use of any
land belonging to the State is guided by the provision of
Sections 60 to 82, as contained in Chapter VI of the Gujarat
Land Revenue Code’ 1879.
63. Section 60 provides for a written permission of
Mamlatdar required to be taken previously from entering
upon the occupation of any unoccupied land, which has been
alienated. Eviction proceedings for unauthorized occupation
of any land set apart for any special purpose, or any
unoccupied land which has not been alienated, can be
initiated under Section 61.
64. Section 62 confers power upon the Collector, subject
to the rules made, to require the payment of a price for an
alienated land or to sell the same by auction, before
permission to occupy is given under Section 60.
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65. Section 68 entitles the occupant to the use and
occupation of his land for the period of tenure, which may be
limited or unlimited or in perpetuity, on payment of amounts
determined under the provisions of the Act and the Rules
made thereunder, and on the fulfillment of any terms or
conditions lawfully annexed to his tenure.
66. Section 65(1) provides that any occupant of alienated
land is entitled to put his lands to use for the purposes of
agriculture and make any other improvements thereon for
such purposes. However, if an occupant wishes to apply his
land to any other purpose, other than for agricultural use, i.e.
different non-agricultural purposes, he may apply to the
Collector for his permission. On receipt of such application,
the Collector may, after due inquiry, either grant or refuse
permission applied for. Under the deeming provisions
contained in the proviso to sub-section (1) of Section 65, if the
Collector failed to inform the applicant of his decision on the
application within a period of three months, the permission
applied for shall be deemed to have been granted.
67. Section 79A contained in the same chapter, however,
provides for summary eviction of an unauthorized occupant or
a person in wrongful possession of alienated land (granted
under Section 60) or unalienated land, in his wrongful use and
occupation.
68. The contention is that sofar as the petitioner is
concerned, such regularization orders were passed in the year
1992 and 1997 for Nadi area, gamtal area and certain portion
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of lands in survey No.287/A/paiki. In the initial allotment
order dated 30.04.1980 (amended on 26.03.1981), a total area
of 6281 sq.mtrs (4860 sq.mtrs) from survey No.282/A/paiki
and 1401 sq.mtrs. of gamtal land was granted to the
petitioner Trust for charitable purposes, for social and
educational purposes on the conditions mentioned therein.
The allotment order categorically records that the grant of
revenue free land in perpetuity was for the purposes specified
in Rule 32 read with Rule 36(1) of the Gujarat Land Revenue
Rules’ 1972 made under the Revenue Code, for the conditions
mentioned therein. The allegations in the eviction notice was
of breach of condition Nos.3, 6 and 7 of the allotment letter
dated 30.04.1980, which reads as under:-
" Annex- 'B' Colly
નં. સીબી/વતન/રે .ફી/૫૫૭૦
જીલ્લા કલેક્ટરની કચેરી,
અમદાવાદ, તા.૩૦-૪-૧૯૮૦
વંચાણમાં લીધાંઃ-
(૧) સરકારશ્રીના મહે સુલ વિભાગની યાદી ક્રમાંકઃએલ.આર.એફ.૨૨૭૬-
૯૩૭૫૯-ગ,
તા.૯-૪-૮૦
(૨) કલેક્ટરશ્રી, અમદાવાદના હુકમ ક્રમાંકઃસીબી/એલએનડી/ક, તા.
-૪-૧૯૮૦
હુકમઃ-
મોજે મોટે રા, તા.જી. ગાંધીનગરના સ.નં.૨૮૨/અ પૈકીની એ. ૧-૨૦
ગું. જમીન મંદીર તથા આશ્રમ માટે શ્રી સંત આશારામ આશ્રમ ટ્ર સ્ટીને જમીન
મંજુર કરવાના સરખા ક્રમાંકના તારીખ ૨૪-૧૦-૭૮ ના સરકારી હુકમો રદ
કરીને હવે ૬૨૬૧ ચો.મી. ખુલ્લી જમીન કે જેના મહે સુલ માફીની કિંમત રૂ.
૩૦૦૫૨-૮૫ પૈસા થાય છે . તે જમીન શ્રી સંત આશારામ આશ્રમને આશ્રમ
શાળા સહિતની સામાજીક અને શૈક્ષણિક પ્રવૃત્તિઓ માટે જમીન મહે સુલ
નિયમોની કલમ-૩૨ હે ઠળ માફીથી જમીન મહે સુલ નિયમોના નિયમ ૩૬/૧
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માં જણાવેલી શરતોને આધીન તથા નીચે જણાવેલ વધારાની શરતોએ જમીન
આપવા સરકારશ્રીના મહે સુલ વિભાગની યાદી ક્રમાંકઃ એલ.આર.એફ. ૨૨૭૬-
૯૩૭૫૯-ગ, તા. ૯-૪-૮૦ થી મંજૂરી આપવામાં આવેલ છે .
ઉપરોક્ત સંજોગોમાં મોજે મોટે રા, તા.જી.ગાંધીનગરના સ.નં.૨૮૨/એ
પૈકી ૬૨૬૧ ચો.મીટર સરકારી ખુલ્લી જમીન કે જેની કિંમત રૂ. ૩૦૦૫૨-૮૦
પૈસા થાય છે તે જમીન શ્રી સંત આશારામ આશ્રમ ટ્ર સ્ટની આશ્રમશાળા
સહિતની સામાજીક અને શૈક્ષણિક પ્રવૃત્તિઓ માટે જમીન મહે સુલ નિયમોની
કલમ-૩૨ હે ઠળ મહે સુલ માફીથી જમીન મહે સુલ નિયમોના નિયમ-૩૬/૧
માં જણાવેલ શરતોને આધીન તથા નીચે જણાવેલ વધારાની શરતોને આપવા
હુકમ કરવામાં આવે છે .
શરતોઃ-
(૧) જમીનનો કબજો સોંપવામાં આવે ત્યારથી છ માસમાં શરૂ કરીને બે
વર્ષની મુદતમાં બાંધકામ પુરૂ કરવાનું રહે શે.
(૨) આશ્રમશાળા કોઈપણ જ્ઞાતિ કે ધર્મના ભેદભાવ વિના દરે ક માટે ખુલ્લી
રાખવી પડશે.
(૩) બાંધકામના નકશા કલેક્ટરશ્રી પાસે મંજુર કરાવવા પડશે અને તેમાં
કલેક્ટરશ્રીની અગાઉથી મંજુરી મેળવ્યા સીવાય ફે રફાર કે વધારો થઈ શકશે
નહી.
(૪) બાંધકામ રાજ્યના રે ખા નિયમ અને મકાન બાંધકામ નિયમને આધીન
કરવાનું રહે શે.
(૫) જમીન જે હે તુ માટે આપવામાં આવી છે તે હે તુ માટે જ તેનો ઉપયોગ
કરવાનો રહે શે.
(૬) આ જમીનમાંથી કોઈપણ જાતનો નફો લઈ શકાશે નહી. તેમજ કોઈપણ
નફાકારક ઉપયોગમાં લઈ શકાશે નહી.
(૭) જમીનનો ઉપયોગ કરતા પહે લાં ટ્ર સ્ટએ મામલતદારશ્રી, ગાંધીનગર
પાસેથી નમુના “ક” માં પરવાનગી લેવાની રહે શે.
(૮) ઉપરોક્ત કોઈપણ શરત કે શરતોનો ભંગ થશે તો જમીન કોઈપણ
જાતનું વળતર આપ્યા સિવાય વિના વળતરે સરકાર પરત લેવામાં આવશે.
ગામ દફતરે જરૂરી નોંધ રાખવી, ટ્ર સ્ટને જમીનનો કબજો અવાચ્ય કબજો
પાવતી રાખી સનંદો તરીકે વેરીફાઈ કરી અને સહી સિક્કો કરવા મોકલવી.
સહીઃ અશોક ચાવલા,
જીલ્લા કલેક્ટર, અમદાવાદ અને
ગાંધીનગર.”
ENGLISH TRANSLATION:-
”
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No. CB/Vatan/R.F./5570
Office of the District Collector,
Ahmedabad, Date: 30/04/1980
Read:-
(1) Memorandum of the Government Revenue Department No:
LRF 2276-937159-Ga, dated 09/04/1980.
(2) Order of the Collector, Ahmedabad No: CB/LND/Ka, dated
…../04/1980.
Order:-
In supersession of the Government orders of the even
number dated 24/10/1978 regarding granting of the land bearing
Survey No. 282/A Paiki, admeasuring Acres 1-20 Gunthas, situated
at Moje Motera, Taluka & Dist. Gandhinagar to the Trustee of Shri
Sant Asharam Ashram for the purpose of a temple and an Ashram;
now vide the Revenue Department Memorandum No: LRF, 2276-
93759-Ga, dated 09/04/1980, the approval has been granted to give
the open land admeasuring 6261 square meters, the revenue
exempted value of which turns out to be Rs. 30052.85, to Shri Sant
Asharam Ashram for social and educational activities including an
Ashram Shala, with revenue exemption under Rule-32 of the Land
Revenue Rules, subject to the conditions mentioned in Rule 36/1 of
the Land Revenue Rules and the additional conditions mentioned
hereunder.
Under the above circumstances, it is hereby ordered to give
the Government open land bearing Survey No. 282/A Paiki,
admeasuring 6261 square meters, situated at Moje Motera, Taluka
& Dist. Gandhinagar, the value of which is Rs. 30052.80, for the
social and educational activities of Shri Sant Asharam Ashram
Trust including the Ashram Shala, with revenue exemption under
Rule-32 of the Land Revenue Rules, subject to the conditions
mentioned in Rule 36/1 of the Land Revenue Rules and the
additional conditions mentioned hereunder.
Conditions:-
(1) Construction must be completed within a time period of two
years, starting within six months from the date when the
possession of the land is handed over.
(2) The Ashram Shala must be kept open for everyone without
any discrimination of caste or religion.
(3) Maps and plans for the construction shall be made to be
approved by the Collector and that any changes or additions shall
not be made therein without obtaining prior permission from thePage 29 of 80
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Collector.
(4) Construction shall have to be made (strictly) in accordance
with the layout and building construction rules of the State.
(5) The land shall be used only for the purpose for which it has
been granted.
(6) No profit of any kind can be taken from this land, nor can it
be put to any profitable use.
(7) Before using the land, the Trust shall have to obtain
permission in Form “Ka” from the Mamlatdar, Gandhinagar.
(8) In case of breach of any of the above condition/s, the land
shall be retrieved without compensation by the Government
without paying any (amount of) compensation.
Necessary entry shall be made in the village records, possession of
the land to the Trust (Illegible) after retaining the possession
receipt and verifying as per the Sanads, it may be sent for the
signature and seal.
Signed: Ashok Chawla
District Collector,
Ahmedabad and
Gandhinagar. "
69. The assertions in the show cause notice are that the
construction plan was required to be approved and prior
permission of the Collector was required to be obtained, but
from the record, it does not appear that the plan for the
existing constructions were approved or such permission was
obtained, condition No.3 of the allotment order, thus, appears
to have been breached. Further, as per condition No.6 of the
allotment order, the allotted land cannot be put to any
profitable use, no profit can be obtained from the said allotted
land.
70. The show cause notice contains allegation of breach
of condition No.6 with the assertion that at site, it was found
that various goods are being sold by the Ashram and
profitable activities are being carried out. As regards
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condition No.7, the allegations are that no prior permission
for such use as per form-‘k’ from the Mamlatdar, Gandhinagar
was taken. The show cause notice further refers to condition
No.1 of the regularization order dated 23.07.1992, which
stated that the land possessed by the institution (Trust) shall
be held as new and impartible tenure and the condition No.2
provided that the Trust shall not carry out any profitable
activities other than religious activities on the said land.
71. The regularization order dated 23.07.1992 was
passed for a total area of 10,262 sq.mtrs comprising of three
lands, namely 2296 sq.mtrs of river (nadi), 6000 sq.mtrs of
gamtal land and 2000 sq.mtrs of survey No.282/A/paiki, on the
payments of the amounts calculated at the market price
towards penalty from the date of possession till the date of
regularization. A total of Rs.98,074.56p was deposited by the
applicant Trust towards penalty as is evident from the order
itself.
72. Placing the order of regularization dated 23.07.1992
(at page No. ‘249’ of the paper-book of Letters Patent Appeal
No.108 of 2026), it was vehemently argued by Mr.Mihir
Thakore, the learned Senior Counsel for the petitioner that
the total land admeasuring 10,296 sq.mtrs possessed by Sant
Shri Asharam Ashram Trust along with the existing
construction thereon though without permission, but was
regularized as new and impartible tenure, subject to the
conditions mentioned therein. This fact itself reveal that not
only the occupied land but the constructions thereon had also
been regularized under the regularization order dated
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23.07.1992, which was passed in accordance with the
provisions of the Code in an appropriate proceedings
undertaken by the Competent Authority.
73. Similarly, the regularization orders dated 16.12.1997
was passed for 17,423 sq.mtrs. of land, comprising of 592
sq.mtrs. of Sabarmati river land (nadi paiki), 5,775 sq.mtrs of
gamtal land (gamtal paiki) and 11,056 sq.mtrs of land of
survey No.282/A/paiki, on a payment of total amount of
Rs.7,55,078.50p towards penalty and surcharge for
occupation by Sant Shri Asharam Ashram, the petitioner Trust
for the purposes of public road and social activities.
74. The submission is that the said regularization order
was passed in accordance with the provisions of the Code by
the competent authority as a special case, subject to the
conditions mentioned therein, which provide that the land
possessed by the Trust shall be held subject to new and
impartible tenure conditions and no profitable activities other
than religious activities shall be carried out over the lands in
question. The submission is that the breach of conditions No.1
and 2 of the regularization orders dated 23.07.1992 and
16.12.1992 was alleged in the show cause notice, while
calling upon the petitioner to remain present with the
competent authority with supporting evidence.
75. It was vehemently argued that the evidence placed
before the authorities such as the Development permission
dated 28.05.2008 (page no. ‘293’ of Letters Patent Appeal
No.108 of 2026) and Building use permission (at page No.
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‘287’ of the said paper-book), clearly demonstrate that AUDA
not only granted permission to raise constructions over an
area of 2632.59 sq.mtrs of survey No.282/A but also granted
Building use permission over the constructions raised on
3954.93 sq.mtrs. of the said plot, namely survey No.282 A.
The contention is that the petitioner had applied for
development permission over an area of 4860 sq.mtrs. of
survey No.283/A/paiki, which was duly granted in the year
2008 and Building use permission over the said construction
was accorded in the year 2009 on the application of the
petitioner.
76. The facts of the existing constructions having been
regularized in the regularization order dated 23.07.1992 and
the Development permission granted on 28.05.2008 and the
Building use permission dated 04.03.2009, are established by
the documents in evidence produced by the petitioner Trust,
which show that the existing constructions as on 23.07.1992
were regularized and the construction of Gurukul, thereafter,
were raised with the due permission of the competent
authority, namely Ahmedabad Urban Development Authority.
77. The above evidences have been conveniently ignored
by the respondents, City Mamlatdar and City Deputy Collector
to hold the petitioner being an unauthorized occupant of the
land in question and proceedings to hold that, in violation of
conditions of allotment order by taking aid of condition No.14
of the regularization order dated 23.07.1992 that in breach of
condition or conditions of regularization, the grant shall stand
cancelled and the land including the constructions thereon
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shall be taken back by the Government. Similar condition
No.16 of the regularization order dated 16.12.1997 and
condition No.18 of the allotment order dated 30.04.1980 were
invoked to forfeit an area of 33,980 sq.mtrs of land, in the
proceedings under Section 79A of the Code on the allegations
that no evidence has been submitted by the petitioner to
establish that the construction plan over the said area has
been approved.
78. It is submitted that the petitioner has already filed 30
regularization applications under the Gujarat Regularization
of Unauthorized Development Act, 2022 (for short, “GRUDA”)
before the Ahmedabad Urban Development Authority in the
month of February’ 2023. The receipt issued by the
Ahmedabad Municipal Corporation are appended at page Nos.
‘301’ to ‘330’ of the paper-book, to submit that these
applications were filed in the month of February’ 2023 itself
before the AUDA / AMC for regularization of development
undertaken over the land in question by Sant Shri Asharam
Ashram Trust. The submission is that these applications have
been rejected mechanically on the basis of the forfeiture order
dated 04.04.2025 passed by the City Mamlatdar, without
adhering to the procedure of inquiry as to the entitlement to
the petitioner to seek such regularization.
79. Moreover, the findings of the Deputy Collector on
violation of the conditions of allotment / regularization orders
on the ground that the petitioner Trust has indulged in
profiteering are bereft of any evidence. It is vehemently
argued that both the allegations of the illegal constructions
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and the allegations of the profiteering in breach of conditions
of allotment / regularization orders, require a full-fledged
inquiry in a proper case, wherein allegations could have been
proved after giving opportunity to the petitioner to lead oral
and documentary evidence.
80. Even in the proceedings under Section 79A in its
reply dated 30.11.2023, the petitioner categorically stated
that they conduct religious, spiritual, social and educational
upliftment activities and various temporary and permanent
structures have been constructed as per the requirements. To
maintain these services of religious and charitable activities,
in order to meet the needs of the visiting devotees and
pilgrims, prasad, pooja materials, religious literature and
ayurvedic medicines are distributed at subsidized rates solely
with the spirit of service and without any expectation of profit.
81. Furthermore, the audited accounts of the services /
charitable activities run by the Trust are regularly submitted
to the office of the Charity Commissioner and no objections
has ever been raised thereon. The order of the Deputy
Collector dated 04.04.2025 has been passed in utter
ignorance of the aforesaid evidence and moreover, the inquiry
into the allegations of profit making activities could not have
been conducted in the summary eviction proceedings under
Section 79A of the Code.
82. Placing reliance on the decision of this Court in State
of Gujarat V. Master Silk Mills [Letters Patent Appeal
No.992 of 2023 decided on 24.07.2023] and Amit Kalyani
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Shah through POA Trilok Kantilal Rawal V. Special
Secretary (Appeals) and Ors. [Special Civil Application
No.8789 of 2016 decided on 02.03.2020], it was argued that
powers conferred under Section 79A cannot be invoked to
evict a lessee or a grantee on the allegations of breach of
condition without drawing a proper proceedings, wherein
determination by appreciation of evidence on the question of
fact and law can be made on the dispute of violation of terms
and conditions of the lease deed.
83. The submission is that the Division Bench of this
Court in Master Silk Mills (supra) has categorically held
that such an inquiry is not permissible within the scope of
Section 79A of the Code and the action of the Collector in
summary eviction is usurpation of power, hit by the vice of
jurisdiction. Similar view has been taken by the learned Single
Judge of this Court in the judgment and order dated
02.03.2020 in Amit Kalyani Shah (supra).
84. It was further argued that the allegations of breach
based on which the eviction order has been passed, are not
indicated in the show cause notice. The show cause notice
was unspecific and vague and hence, the entire proceedings
in respect thereto cannot be allowed to be sustained and are
liable to be quashed outrightly. Reliance is placed on the
decision of the Apex Court in CCE v. Brindavan Beverages
(P) Ltd., [(2007) 5 SCC 388] to substantiate the same.
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85. It was vehemently argued by the learned Senior
Counsel for the petitioner that even if it is accepted for a
moment without admitting that there exists a case of breach
of condition, it is to be considered by this Court that the
existing constructions are in use of the petitioner Trust since
the year 1997 onwards, AUDA’s permission was sought with
regard to the constructions raised on the regularized land,
which was rejected mechanically due to the eviction order
under Section 79A passed by the Deputy Collector.
86. The petitioner’s specific case is that it is in possession
of 39,094 sq.mtrs of land and no more area is occupied
beyond that, which is evident from the DILR measurement
report of the year 1998 onwrds. In case of any allegations of
breach of condition, even if it is accepted without admitting, it
was open for the respondent authorities to levy penalty and
regularize the constructions. Such regularization had been
done by the State authorities in the past. There is no
justification for the State authorities to reject the request for
regularization of constructions and not giving opportunity to
the petitioner to pay penalty to seek regularization, which is
ordinarily and generally granted by the Collector / authorities
in cases of any unauthorized constructions.
87. The submission is that the breach of condition
proceeding under Section 79A are clearly demonstrated to
have been initiated with the premeditated mind to seek
vacation of the land in question by summary eviction of the
petitioner, because of the sole reason that the land in question
was first identified for use of the development of SVP Sports
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complex. The State authorities instead of going for acquisition
of the lands in question adopted a short-cut mode of summary
eviction of a lawful occupant.
88. Reiterating the submissions pertaining to Section 61
of the Revenue Code, it is contended that any unauthorized
occupant of a Government land can be asked to pay the
penalty, which may be levied as per Jantri as may be notified
by the State Government and any forfeiture under Section 61,
must precede by an opportunity to the landholder to seek
regularization of alleged unauthorized occupation /
construction.
89. It was, thus, argued that looking from any angle, in
the facts of the present case, the proceedings for summary
eviction of the petitioner under Section 79A cannot be allowed
to be sustained, on the premise of breach of conditions of the
allotment / regularization orders.
90. The learned Single Judge has committed an error in
dismissing the writ petition, namely Special Civil Application
No.11366 of 2025 while simply extracting the orders of the
Collector and the Tribunal and holding that the orders having
been passed by adhering to the principles of Natural justice,
no exception can be taken to the powers of the Collector /
Deputy Collector under Section 79A of the Code.
91. Lastly, it was urged that the decision of the State
Authorities cannot withstand on the Doctrine of
Proportionality, which was required to be kept in mind while
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resorting to the drastic power of resumption and forfeiture of
land. Moreover, the land in question is subject matter of Town
Planning and a layout plan has already been prepared by the
Town Planning Authority, which would result in changing the
very nature of the allotted land as per the Town Planning
Scheme. In the said scenario, conducting breach of condition
proceedings at the stage when Town Planning Scheme is
underway, cannot withstand the test based on the doctrine of
proportionality when the constructions remained in place and
being in use of the petitioner for more than 26 years.
92. At the most, the petitioner could have been asked to
mend its way, but resorting to the drastic power of
resumption and forfeiture would amount to disproportionate
action of the respondent, which cannot be sustained in the eye
of law, in the facts and circumstances of the present case.
Reliance is placed on the decision of the Apex Court in the
case of Teri Oat Estates (P) Ltd. v. UT, Chandigarh,
[(2004) 2 SCC 130] to substantiate the said submission.
B. LETTERS PATENT APPEAL NO.107 OF 2026:-
Submissions of Mr.R.S. Sanjanwala, the Learned Senior
Counsel for the Appellant:-
93. Adding to the submissions made by Mr.Mihir Thakore,
the learned Senior Counsel about the mala fide exercise of
powers by the Deputy City Collector in initiating the summary
eviction proceedings against the petitioner, Mr.R. S.
Sanjanwala, the learned Senior Counsel for the appellant in
the connected Letters Patent Appeal No.107 of 2026 (arising
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out of the Special Civil Application No.11610 of 2025) made
the following submissions.
94. The proceedings under Section 61 of the Code,
subject matter of challenge in the aforesaid writ petition were
initiated with the notice dated 31.08.2023 issued from the
office of the City Mamlatdar, Sabarmati / Executive
Magistrate, Sabarmati. The allegations therein was that the
petitioner made encroachment on the land of Moje Motera,
Taluka Sabarmati, District Ahmedabad bearing survey
No.282/A/paiki area 6489 sq.mtrs, old Gamtal paiki area 3185
sq.mtrs and Sabarmati River paiki area 6104 sq.mtrs.; total
admeasuring 15,778 sq.mtrs. The basis of the said notice is
the measurement sheet prepared on 31.07.2023 by the DILR
on the instructions of the Collector. The contention is that the
survey for preparing the measurement sheet was made in the
absence of the petitioner and without even notifying the date
of measurement.
95. The further submission is that the measurement sheet
dated 31.07.2023 is grossly erroneous inter alia as the Sim
Rekha, which is shown to be passing from Banjara Vaas in all
the earlier layouts of 1998, 2008 and 2023, has been shifted.
96. The petitioner filed its reply dated 10.11.2023 placing
correct facts on record and pointed out that the sole reason of
finding encroachment is because of shifting of Sim Rekha in
the 2023 layout prepared by the DILR. It is explained by
Mr.Sanjanwala, the learned Senior Counsel for the appellant
that the Sim Rekha is a line creating demarcation between
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the Gamtal area and area of survey No.282/A/paiki and
Sabarmati Nadi. A comparison of the layout prepared in
1998, 2008 and 2013, which were duly placed on record along
with the reply would show that the position of the Sim Rekha
has not been altered throughout from 1998 to 2013. Even the
original allotment of the land had taken place as per the Sim
Rekha shown in the year 1998 measurement sheet.
97. It is contended that besides that, 4,860 sq.mtrs of
land of River Paiki granted to the petitioner pursuant to the
resolution dated 06.01.1999 has been included in calculating
the total area of the alleged encroachment. It is also
submitted that the retaining wall was constructed to protect
trees and also for security of the children of the Ashram, to
avoid a repeat of an unfortunate incident which took place in
the year 2008 because of food.
98. The petitioner, thereafter, submitted a list of
documents dated 21.02.2024 inter alia, placing on record the
permission granted, applications made for regularization and
applications made for conducting a fresh layout, etc.
99. By a letter dated 23.02.2024, the petitioner, however,
requested the City Surveyor to conduct a fresh measurement
for 13,430 sq.mtrs area for Gamtal land and 7,748 sq.mtrs for
Sabarmati Nadi to decide as to the actual area in possession
of the petitioner. Similar request was made to the DILR vide a
letter dated 28.02.2024. The City Survey Superintendent
refused to conduct the survey stating that it does not fall
within his domain.
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100. A detailed representation dated 11.03.2024,
thereafter, was made to the Deputy Director of Land Records,
a superior authority to DILR by the petitioner, pointing out
the flaws in the measurement sheet dated 31.07.2023 with the
request to conduct the measurement in the presence of the
petitioner by taking into consideration the boundaries on site
and the layout prepared in 2013. Similar representation was
made to the DILR on 11.03.2024 challenging the
measurement sheet of 2023.
101. The Deputy Director of Land Records, vide
communication dated 13.03.2024, instructed the DILR to
conduct necessary measurement in accordance with law,
considering the request of the petitioner in the representation
dated 11.03.2024.
102. The petitioner also filed an application under RTI Act
to obtain the documents concerning the allotment of 4,860
sq.mtrs. of Sabarmati Nadi land, which was responded by the
letter dated 18.03.2024 stating that the said land was not
granted, inasmuch as, the documents of grant are not
available in the office concerned.
103. The DILR, by its letters dated 20.03.2024, responded
to the petitioner that no measurement was required to be
conducted. By another letter of the same date, i.e. 20.03.2024,
the DILR conveyed that the measurement of 2023 was
conducted pursuant to the order of the Collector dated
26.06.2023 and the measurement sheet prepared after due
verification is found to be correct. The petitioner was asked to
make a separate application for measurement.
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104. It is contended that at the request of the petitioner, a
paiki measurement was made by the DILR’s office for Survey
No.282/A/paiki and the measurement sheet dated 21.05.2024
was prepared, wherein Sim Rekha is shown to be passing
from Banjaara Vaas and the petitioner is shown to be in
occupation of only 17,916 sq.mtrs of the land.
105. The second, third and fourth replies in the Dabaan
proceedings under Section 61 of the Code were filed by the
petitioner on 27.03.2024, 16.04.2024 and 04.06.2024 raising
issue with regard to shifting of the Sim Rekha,
representations made by the petitioner concerning soil
erosion caused by flow of rain water and the damage caused
to the trees, with the request to safeguard the construction by
preventing soil erosion, which was not paid attention by the
Competent authority.
106. The fifth reply to the notice dated 31.08.2023 was
filed on 01.08.2024 reiterating his request to conduct fresh
measurement by considering earlier requests considering the
records of allotment and maps. The sixth and seventh replies
were filed on 09.08.2024 and 11.08.2024 and it is stated in
the writ petition that the said exhaustive replies along with
the necessary documents brought on record, clarified stand of
the petitioner that the allegations on encroachment are
misconceived in facts and untenable in law.
107. The learned Senior Counsel for the petitioner /
appellant, placing the above noted contents of the writ
petition, would vehemently argue that the measurement sheet
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of 2023 cannot be sustained in view of the earlier layouts
prepared in 1998, 2008, 2013 and the last measurement of
the year 2024 made by the DILR’s Office on the request of the
petitioner. A clear discrepancy in the measurement sheet of
2023 regarding the Sim Rekha has been pointed out before
the Mamlatdar in the replies to the show cause notice and in
the proceedings before the City Deputy Collector as well as
the Tribunal. However, brushing aside all the material on
record, the order impugned for eviction was passed.
108. It was further submitted that the lands in question
now form part of the preliminary scheme of Town Planning
Scheme No.48 (Motera) sanctioned on 05.09.2024. The
petitioner was served with a notice under Section 68 read
with Rule 33 of the Rules framed under the Town Planning
Act, an order dated 27.02.2025 passed therein. The
landholding of the petitioner is now to be seen in the context
of the Town Planning Scheme and the demarcation of the
survey number, gamtal and nadi now became irrelevant.
109. In any case, the petitioner is not in occupation of any
area outside the boundary of the final plot within the Town
Planning Scheme and even as per the plan prepared under the
scheme, the green line, which shows the Sim Rekha is at the
same location, i.e. passing from Banjaara Vaas. In general
practice, the layout of the Town Planning Scheme is prepared
on the basis of the layout which is sent by DILR’s office, which
would obviously include the boundaries and Sim Rekha.
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110. With the above, it was vehemently argued that the
impugned order dated 04.04.2025 in Dabaan Case No.5 of
2023 passed by the City Mamlatdar holding that the petitioner
has encroached upon the Government land in survey
No.282/A/paiki; Gamtal paiki land and Sabarmati River paiki,
total admeasuring 15,778 sq.mtrs., cannot be sustained. The
City Mamlatdar, Sabarmati as also the Tribunal have erred in
holding that there is no evidence of a formal order for
allotment of 4860 sq.mtrs land pursuant to the resolution
dated 06.01.1999 and that no proceedings has been preferred
by the petitioner to challenge the DILR measurement report
dated 31.07.2023.
111. The reasoning given in the order of the Tribunal that
the measurement of 2024 was only for survey No.282 paiki,
whereas measurement sheet of 2023 was of the entire land
including Gamtal and Nadi paiki, is erroneous, inasmuch as, a
specific challenge to the measurement sheet of 2023 by the
petitioner has not been addressed. There is absolutely no
reasoning as to how and from where the petitioner can be
found to have encroached the land admeasuring 15,778
sq.mtrs. The City Mamlatdar as well as the Tribunal had erred
in ignoring earlier measurement sheets of 1998, 2008, 2013
and the subsequent measurement sheet of the year 2024.
112. In any case, the entire eviction proceedings having
been conducted in a mala fide exercise of power as
demonstrated in the submissions of Mr.Mihir Thakore, the
learned Senior Counsel, the order of summary eviction on the
allegations of encroachment cannot be sustained.
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113. The submission is that the petitioner has consistently
argued that it is in possession of 39,094 sq.mtrs. of land only
and no area beyond that. There is no proper identification of
the area of alleged encroachment. The unilateral
measurement sheet dated 31.07.2023 prepared behind the
back of the petitioner cannot be relied to hold that the
petitioner has encroached upon the Government land, gamtal
land and Nadi paiki land.
114. Much emphasis repeatedly has been laid to the maps
of 1998, 2008, 2013 and 2024 placed on record of the writ
petition out of which, the Letters Patent Appeal No.107 of
2026 has arisen.
V. Submissions of Mr.G. H. Virk, the learned
Government Pleader for the State respondents.
115. Coming to the response of the Respondent State, we
may note that Mr.G. H. Virk, the learned Government Pleader
would submit that the communication dated 0306.2021 by
AUDA to the Collector are internal administrative
communications and any mention therein about the
identification of the petitioner’s land being hit by breach of
conditions cannot be projected as a premeditated exercise by
the respondents.
116. By reading of the said communication dated
03.01.2021 by AUDA to the Collector, it was submitted by the
learned Government Pleader that the said communication is to
be simply read as the request of AUDA to block certain pieces
of lands identified for development of the SVP Sports Enclave.
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The table appended to it at page No. ‘432’ of the paper-book
(of Letters Patent Appeal No.108 of 2026) would indicate that
all lands, which are government and gauchar land were
identified. However, while identifying the available
Government land, it was noticed that an area of 17,916
sq.mtrs of survey No.282/A/paiki is in the possession of the
petitioner – trust, i.e. Sant Shri Asharam Ashram, where there
exist unauthorized constructions. It was, thus, noted that the
said land may be available after Sharatbhang proceedings are
conducted in accordance with law.
117. This exercise of identification of available land for the
purpose of construction of sports complex cannot be said to
be mala fide action of the respondent, inasmuch as, it is
always open for the respondent authorities to identify such
Government lands, which are in unauthorized occupation of
private persons or where unauthorized constructions are
raised. Such identification is a continuous exercise and any
encroachment or unauthorized construction, if identified, can
only be removed by adopting due procedure of law. No
infirmity can be attached to the legal proceedings conducted
against the petitioner, wherein due opportunity of hearing has
been granted as is admitted to the petitioner themselves.
118. As regards the order dated 25.01.2022 of the
Collector, it is submitted in the previous writ petition, namely
Special Civil Application No.17521 of 2024, filed to challenge
the said order, no allegation of mala fide had been made and
once the said writ petition has been disposed of vide judgment
and order dated 26.03.2025 and the petitioner had duly
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participated in the hearing conducted in both the legal
proceedings under Section 79A and Section 61 of the Code, all
allegations of mala fide or bona fide of the respondents, raised
for the first time in appeal are liable to be rejected being
afterthought.
119. It was vehemently argued by Mr.G. H. Virk, the
learned Government Pleader that atleast 22 hearings were
afforded to the petitioner asking them to bring all relevant
documents on record to demolish the allegations in the show
cause notice but no evidence was brought on record to
establish that the existing constructions over the new and
impartible tenure land were raised with the permission of the
Collector.
120. As regards the Development permission dated
28.05.2008 and the Building Use permission dated 04.03.2009
given by the AUDA, it is vehemently argued that the said
development permission was applied over an area of 4,860
sq.mtrs of survey No.282/A/paiki, which was never allotted to
the petitioner. The assertion with regard to the said
constructions having been made with the due permission of
the competent authority are liable to be rejected outrightly for
the simple reason that for raising construction on a new and
impartible tenure land, prior permission of the Collector in
accordance with the provisions of Section 65 of the Code was
required to be obtained. No such permission has even been
applied for.
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121. There was, thus, no question of any valid permission
with the petitioner for raising constructions, with respect to
which 30 regularization applications have been filed under
GRUDA in the month of February’ 2023. The submission is
that the mere fact of moving of such a huge number of
applications under GRUDA, itself demonstrates that the
petitioner raised extensive constructions over new and
impartible tenure land without any due permission of the
competent authority as required under the Land Revenue
Code.
122. With regard to the submissions of Mr.Sanjanwala, the
learned Senior Counsel for the appellant about the
measurement sheets of 1998 onwards, the attention of the
Court is invited to the stand of the State in the reply affidavit
in the writ petition, namely Special Civil Application No.11610
of 2025.
123. As noted hereinbefore, the learned Senior Counsel for
the petitioner refers to four measurement sheets prepared in
the year 1998, 2008, 2013 and 2024 to substantiate the
submissions about the error in the measurement sheet dated
31.07.2023 prepared by the DILR on the instructions of the
Collector, which is the basis of the eviction proceedings. It is
pointed out that the measurement sheet dated 21.03.1998 is a
paiki / parcel measurement. Placing the copy of the map
appended at page No. ‘207’ of the paper-book of Letters
Patent Appeal No.107 of 2026, it is pointed out by the learned
Government Pleader that the said measurement was carried
out for a particular parcel of land, at the instance of the
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petitioner as is evident from the words “કબ્જા મુજબની માપ્ની ”
(land in possession of the petitioner) as noted therein itself.
The contention is that it is a measurement full of multiple
cancellations, whereby markings initially made have been
struck off at two critical places by using strokes
“(—/–/–/–/—)”. This cancellation of lands clearly reflect that
the measurement was made in a manner so as to bring it in
line with the exact quantum of allotment.
124. With regard to the measurement sheet dated 23-
24.09.2008 at page No. ‘235’ of the paper-book (in Letters
Patent Appeal No.107 of 2026), it is submitted that the said
measurement is a self-concerning measurement, which does
not factor the adjoining parcels of land and hence, cannot be
relied upon. It is pointed out that the third measurement
sheet dated 14.07.2013, at page No. ‘254’ of the paper-book
(Letters Patent Appeal No.107 of 2026), does not contain any
signature or seal of any government authority to authenticate
the same. It is a private measurement carried out by the
petitioner, which is liable to be ignored, as such. About the
fourth measurement sheet, dated 21.03.2024 at page No.
‘291’ of the paper-book of the aforesaid writ petition, it is
submitted that in the legend therein, at page Nos. ‘5’, ‘6’ and
‘7’, it is noted that:-
– અરજદારશ્રી દ્વારા દિવાલ / ફેન્સીંગ ની અંદર ની બાજુ દર્શાવલ ખાનગી ખુંટ મુજબ ની
માપણી કરાવેલ હોય તે મુજબ માપણી કરી ક્ષેત્રફળ ની ગણતરી કરેલ છે”
– “સ્થળે કબજા મુજબ પૈકી માપણી કરતા સર્વેન-૨૮૨/અ પૈકી નો અરજદારશ્રીના કબજા મુજબનું
ક્ષેત્રફળ ૧-૭૯-૧૬ ચો મી થાય છે.”
– “જે પૈ કી માપણી હોઈ ક્ષેત્રકળ કાયમ કરવા પાત્રનથી.”
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English Translation
– The surface area has been computed upon making survey on the
basis of the personal measurements shown inside the wall / fencing
by the applicant.
– As per the site occupancy, the area, as per the paiki measurement
of the occupancy of the applicant at survey No.282/A/paiki is 1-79-
16 sq.mtrs as
– As it is “paiki measurement”, the area is not liable to be
considered / made permanent.
125. The submission, thus, is that all the aforesaid
measurement sheets are private measurements carried out at
the instance of the petitioner, which only pertain to a
particular area or paiki identified by the petitioner so as to
bring the measurement shown in the map in line with the
allotment order and they do not show the correct picture of
the possession on the spot, inasmuch as, they do not factor
any adjacent / surrounding parcels of lands. Hence, they have
rightly been ignored by the City Mamlatdar in the proceeding
under Section 61 of the Code holding that the measurement
sheet dated 31.07.2023 clearly demonstrates that the
petitioner is in illegal possession / occupation of the aforesaid
pieces of land of survey No.282/A/paiki, gamtal and nadi paiki
land. As the petitioner was found in illegal possession of the
aforesaid land, eviction orders rightly have been passed.
126. Placing the measurement sheet dated 31.07.2023,
prepared by the DILR, it was urged that the measurement
exercise was carried out under the instructions of the
Collector after it was noticed that the petitioner had
encroached upon the Government land without any authority
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of law. The measurement sheet dated 31.07.2023 is a
composite and wholistic measurement carried out by the
DILR. It was conducted after an exhaustive preparation and
inspection of the entire area in question over the period of six
days. It is prepared on a scientific measurement conducted by
using D.G.P.S (Differential Global Positioning System), an
electronic method to conduct measurement through Satellite,
as noted by the learned Single Judge. It is a measurement
conducted by creating all reference points and taking into
account all the existing on the spot position. The allegations
with regard to shifting of Sim Rekha in the measurement
sheet of 2023 are all bogus, inasmuch as, Sim Rekha, which is
the boundary line dividing gamtal area from simtal area is
clearly shown in the map in the measurement sheet, which if
compared with the measurement sheet dated 21.03.2024
prepared by the approved surveyor, at the instance of the
petitioner, would show that there is no shifting or change of
the same.
127. We may note, at this juncture, that during the course
of hearing, the learned Government Pleader has demonstrated
before us as to how the instrument for conducting
measurement by D.G.P.S (Differential Global Positioning
System) Method would function, ruling out any manual flaw in
conducting measurement of any area. It was demonstrated by
showing the instrument to us and the measurement sheet
dated 31.07.2023 that to measure the actual position of the
entire area, reference points covering the whole area after
manual survey were identified and by placing the instrument
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at all reference points one by one, the entire measurement
was recorded through satellite images in the instrument,
which records all details electronically, without any human
intervention.
128. It was contended that there can be absolutely no
objection only with regard to the position of the Sim Rekha
when there is no objection with regard to the position of any
other surrounding properties and plots clearly mentioned in
the map.
129. It was vehemently urged that in the measurement
sheet dated 31.07.2023, the entire area of gamtal land by
clear lines, has been shown which include adjacent lands in
occupation of other persons, such as Sadashiv Pragya Mandal
and Bharat Seva Samaaj. No such details are in the
measurement sheets relied by the learned counsel for the
petitioner and, moreover, the allegations of shifting of Sim
Rekha are absolutely vague.
130. Even in the rejoinder affidavit, with regard to the
measurement sheet on 31.07.2023, only this much is stated by
the petitioner that:-
“i. The measurement sheet dated 31.07.2023 itself mentions
“survey no. 282/A. ni paiki maapni sheet”. Even the notings in
the legend records that a paiki maapni is done for each
smaller landholding shown in the sheet. Thus, it stands on the
same footing as the other layouts.
ii. Without prejudice to the same, the measurement being a
paiki measurement or a composite measurement is
immaterial. The type of measurement / survey would not
change the location of Sim Rekha. Sim Rekha is boundary
line dividing Garntal area from Simtal area. The Petitioner’s
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the location of the Sim Rekha, which would consequently
change the Petitioner’s landholding in Survey No.282/A paiki
Gamtal and Nadi, respectively. ”
131. It is further pointed out on the objection to the
measurement sheet dated 31.07.2023 that the DILR sent a
communication dated 30.09.2024 replying all objections dated
02.09.2024 of the petitioner clearly stating that there were
discrepancies in the measurement sheet of 1998 and 2008
and the measurement sheet of 2013 being the paiki
measurement sheet, cannot be given undue consideration.
With regard to the 2023 measurement sheet prepared by the
DILR, which is sought to be challenged herein, it was clarified
therein that the said sheet was prepared after taking into
consideration of all reference points and the same is a valid
measurement depicting the current status of the lands in
survey No.282/A/paiki and the surrounding area.
132. It was vehemently argued by Mr.G. H. Virk, the
learned Government Pleader that the submission of the
learned Senior Counsel of the petitioner that the
measurement sheet of 31.07.2023 was prepared behind the
back of the petitioner and has been relied by the respondent
to pass order of eviction against the petitioner without putting
it to him, is clearly belied by the said facts brought on record
in the affidavit in reply filed by the respondents. There is no
denial in the rejoinder of the petitioner to the said
communication dated 30.09.2024 sent by the DILR, which was
made during the course of inquiry and much prior to the
passing of the impugned order of eviction dated 04.04.2025
by the City Mamlatdar under Section 61 of the Code.
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133. Refuting the submissions made by the learned Senior
Counsel for the appellant about the inchoate allotment of
4,860 sq.mtrs of land from the Sabarmati River, it is
submitted that though there was a proposal of the Revenue
Department to allot said land vide resolution dated
06.01.1999, but no order or certificate has been brought on
record regarding the allotment of the said piece of land nor
any order of regularization of the possession over 4860
sq.mtrs. of the land from the river paiki has been placed on
record. It is not explained as to how the petitioner could
occupy the said piece of land without any formal allotment
order or certificate of allotment and delivery of possession
thereof by the competent authority.
134. It was, thus, argued that the petitioner is a rank
encroacher and the proceedings for eviction, which are
undertaken by adopting due process of law, wherein
principles of natural justice has been adhered to, cannot be
said to suffer from any error of law. No arguments showing
any perversity in the orders impugned could be placed before
the Court. No jurisdictional error can be said to have been
committed by the competent authorities while passing the
orders impugned under Section 79A and Section 61 of the
Code.
135. There is no equity in favour of the petitioner,
inasmuch as, the petitioner is a habitual encroacher. The
submission is that in the year 2009, proceedings under
Section 61 of the Code was initiated against the petitioner
regarding encroachment on 15,451 sq.mtrs of survey
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No.282/A/paiki, 547 sq.mtrs with construction over Sabarmati
river (Nadi Paiki) and 51,101 sq.mtrs of open land forming
part of Sabarmati River (Nadi Paiki). By order dated
08.12.2009, the encroached area was ordered to be vacated
and possession was to be given to the concerned Circle
Officer. The challenge to the said order was upturned by the
appellate authority and the petitioner ultimately admitted its
guilt and evicted the encroached area. No equity, as such,
could be pleaded by the petitioner.
136. Inviting attention of the Court to page No. ‘470’ of the
paper-book, which is the measurement sheet of the year 2008,
relied by the petitioner, it is pointed out by the learned
Government Pleader that a look at the said map would show
that there were only five buildings at that time, whereas as
per own admission of the petitioner, 30 applications have
been filed for regularization of illegal constructions under
GRUDA by the petitioner and not a single permission from the
Collector to raise construction on the allotted land and for
utilization of new and impartible tenure land for non-
agricultural purpose has been brought on record. The
development permission of the year 2008 and the BU
permission of the year 2009 by AUDA for the construction of
school unit would not regularize the unauthorized utilization
of new and impartible agricultural land granted to the
petitioner under the regularization orders of 1992 and 1997.
As a result of it, 33,980 sq.mtrs of lands, wherein
constructions were raised without permission of the Collector;
and which was utilized by the petitioner for non-agricultural
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purposes without due permission of the Collector; and
wherein activities are being undertaken, which results in
profiteering, have been forfeited legally in exercise of power
under Section 79A of the Code.
137. In addition to the above, a total area of 15, 778
sq.mtrs. was found to be in unauthorized occupation of the
petitioner as per the measurement sheet dated 31.07.2023,
with respect to which eviction order has been passed under
Section 61 of the Code.
138. Mr.G. H. Virk, the learned Government Pleader has
further submitted that the proceedings under Section 79A of
the Bombay Land Revenue Code, which has been initiated in
breach of the conditions of the original orders of grant, cannot
be said to suffer from any error of law. It was submitted that it
is always open for the authorities to initiate proceedings for
breach of conditions where ever Government land is allotted
with certain objections by imposing certain conditions.
139. In such cases, the only requirement is to provide due
opportunity of hearing and it is always open for the
authorities to pass order for vesting of lands with the
Government again, in case breach is found to have been
substantiated. In order to substantiate his arguments, Mr.G.
H. Virk, the learned Government Pleader has relied upon the
following decisions:-
i. Gujarat State Road Transport Corporation v. Firoze
M. Mogal, [2013 SCC OnLine Guj 8638].
ii. Ayesha Begum Shaikh and Ors. V. The State of
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Gujarat and Ors. [Special Leave Petition (Civil)
Diary No. 40275 of 2017 dated 28.01.2019.
iii. Ayeshabegam Shaikh v. State of Gujarat [2016 (0)
AIJEL – HC – 236855 dated 09.12.2016.
iv. Kanaiyalal Dhansukhlal Sopariwala v. State of
Gujarat [Letters Patent Appeal No.1137 of
2008 dated 07.10.2008].
v. Kanaiyalal Dhansukhlal Sopariwala v. State of
Gujarat [Civil Appeal No.2015 of 2009 dated
21.08.2019].
vi. Ayeshabegam Shaikh Versus State Of Gujarat
[Letters Patent Appeal No.1295 of 2016
decided on 09.12.2016].
vii. Government of Gujarat v. Amraji Motiji Thakor,
[1976 SCC OnLine Guj 13].
viii. Sant Shri Asharam Ashram Trust v. The State of
Gujarat and Ors. [Special Civil Application
No.17521 of 2024 dated 23.06.2025].
140. Placing the decision of the Division Bench of this
Court dated 07.10.2008 in the case of Kanaiyalal
Dhansukhlal Sopariwala v. State of Gujarat [Letters
Patent Appeal No.1137 of 2008], it was argued that new
tenure lands are subject to certain restrictions as to their use.
It is the policy of the State that if any occupant of such a land
desires to put it to any alternative use, he is duty bound to
approach the Collector of the District, who in exercise of his
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power, may grant such permission after the occupant pays a
premium as fixed from time to time. The premium that is due
to the Government is charged in lieu of waiving the State’s
interest in a particular new tenure land and permitting the
occupant to put it to non-restricted use i.e. old tenure.
Similarly, for putting an agricultural land to non-agricultural
use, provisions of Section 65 of the Land Revenue Code are
attracted, wherein on receipt of any application for conversion
of an agricultural land to non-agricultural purposes, the
Collector is required to conduct an inquiry and the
permission, if granted, would further require payment of
certain premium as per the applicable Government orders.
141. In the instant case, admittedly, no such permission
has ever been applied for nor has ever been granted. The
petitioner, therefore, cannot be permitted to assail the orders
of eviction from the grant lands on the premise of the
Development permission granted or Building use permission
by AUDA for the constructions raised, unauthorizedly.
VI. ARGUMENTS IN REJOINDER OF BOTH SIDES :-
142. In rejoinder, each of the allegations made by Mr.G. H.
Virk, the learned Government Pleader are sought to be replied
by both Mr.Mihir Thakore and Mr.R. S. Sanjanwala, the
learned Senior Counsels for the appellants, which are
essentially reiteration of their arguments noted in detail
hereinbefore. We, therefore, do not find any reason to burden
this judgment with the written submissions given by the
learned Senior Counsels in rejoinder.
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143. Only this much may be noted, at the cost of repetition,
that Mr.Mihir Thakore, the learned Senior Counsel for the
appellant would submit that the grant land was allotted by
undertaking the proceedings under Section 62 of the Code in
accordance with the provisions of Rule 37 read with Rule 32,
wherein land may be given free from revenue in perpetuity for
any of the purposes specified in Column No. ‘1’ of the table
prescribed in Rule 32.
144. Placing Rule 32 of the Gujarat Land Revenue Rules,
1972 (for short, “Rules, 1972”), it is submitted that there are
three separate forms specified for grant of a land by the
Collector for agricultural purposes. The agreement for such
grants is prescribed in Form ‘F’, which shall be taken from the
person intending to become the occupant. Form ‘I’ shall be
added to the agreement if the land is granted on inalienable
tenure. For the grant on impartible tenure, form ‘F(1)’ would
be added. And, if the grant is both on impartible and
inalienable tenure, Form ‘I(1)’ shall ordinarily be taken from
the person intending to become the occupant.
145. Inviting the attention of the Court to page No. ‘788’ of
the paper-book of Letters Patent Appeal No.108 of 2026, it
was submitted by Mr.Thakore that the original allotment of
the year 1980 was made in a form prescribed under Rule
32(1), wherein 1404 sq.mtrs. of gamtal land and 4860 of land
in Survey No.282/A/paiki (total 6515 sq.mtrs) was allotted
under the orders dated 30.04.1980 passed by the Collector.
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146. The learned Senior Counsel would further ague that
the land in question was allotted for the purposes of social
and educational activities including the Ashram school,
inasmuch as, the allotment order dated 30.04.1980 was
passed under Rule 32 read with Rule 36(1) of the Rules’ 1972
exempting revenue. In addition to the above, by separate
orders of the same date dated 30.04.1980, the constructions
earlier made by the Ashram over an area of 254 sq.mtrs of
land had also been regularized by charging money, which was
duly paid. Thus, in total, the petitioner remained in occupation
of the total area admeasuring 6515 sq.mtrs. based on the
allotment orders dated 30.04.1980, separately for an area of
6261 sq.mtrs. and for regularization of construction over 254
sq.mtrs. of land by collecting amount as per the resolution of
the State Government under the report of the Deputy City
Mamlatdar.
147. The submission, thus, is that the grant originally has
been made by exemption of revenue mentioning in the
allotment order itself that the site in question would be used
for construction of the school, as per Rule 32 of the Rules’
1972. No exception, as such, can be taken by the respondents
about the utilization of the said allotted land.
148. In rebuttal of the said submission, it was submitted by
Mr.G. H. Virk, the learned Government Pleader, by placing
the order dated 26.07.1981 ( at page No. ‘231’ of the paper-
book in Letters Patent Appeal No.108 of 2026) that the first
correction order dated 26.07.1981 was passed to clarify and
make corrections in the allotment order dated 30.04.1980 that
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out of total area of 6261 sq.mtrs. of the allotted land, 1401
sq.mtrs. is of open land, whereas land bearing survey
No.282/A/paiki admeasuring 4,860 sq.mtrs has been allotted
having exemption of revenue value of Rs.30,052.80p for the
purposes of social and educational activities including Ashram
school as per Rule 32 of the Rules’ 1972 as per conditions
mentioned in Rule 36(1) of the Rules’ 1972. The correction
order dated 26.07.1981 further clarifies that the conditions
mentioned in the order of allotment dated 30.04.1980 shall
remain as it is.
149. Similarly, another order dated 30.04.1980 for
regularization of 254 sq.mtrs of land of survey No.282/A/paiki
over which constructions have been made by the petitioner
was further clarified and corrected vide a separate order
dated 26.03.1981, wherein it was clarified that constructed
land admeasuring 254 sq.mtrs. shall form part of the total
area of 4860 sq.mtrs of survey No.282/A/paiki allotted vide
allotment order dated 30.04.1980.
150. It was pointed out to us that initially, an area
admeasuring Acre 1 – 20 gunthas of survey No.282/A/paiki
was granted to Shri Sant Asharam Ashram Trust for temple
and Ashram vide order dated 24.10.1978, but the said order
was cancelled. However, in the meantime, the Ashram had
raised some constructions over an area of 254 sq.mtrs. on the
said land, and as such, the order was passed to grant the said
piece of land on deposit of the amount determined therein,
with the condition that such land shall be used for activities of
the Ashram and the user shall not be changed. The grant
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order for 254 sq.mtrs. of Survey No.282/A/paiki and the
correction order dated 28.03.1981 thereto are appended at
page Nos. ‘236’ and ‘245’ of the paper-book of Letters Patent
Appeal No.108 of 2026.
151. The submission, thus, is after the correction of
allotment made on 30.04.1980, the total area granted to the
petitioner by virtue of the said allotment order remains 6261
sq.mtrs. (1401 sq.mtrs. of Gamtal land and 4860 sq.mtrs of
land bearing survey No.282/A/paiki).
152. It is vehemently reiterated by the learned Government
Pleader that the Collector’s permission has never been
obtained for raising constructions, which are illegal as per
own admission of the petitioner by moving 30 applications
under GRUDA for regularization. No indulgence, as such, can
be granted to the petitioners. There is no infirmity in the
order of the learned Single Judge. The appeal deserves to be
dismissed being devoid of merits.
VII. ANALYSIS
A. FACTS CULLED OUT FROM THE RECORD:-
153. To deal with the submissions of the learned counsels
for the parties, at the outset, we may cull out the facts
reflected from the record, noted in the orders impugned
passed by the respondent authorities and also by the learned
Single Judge.
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I. By the allotment order dated 30.04.1980 (for 6261
sq.mtrs.), regularization orders dated 23.07.1992
(10,296 sq.mtrs) and 16.12.1997 (17,423 sq.mtrs.), in
total 33,980 sq.mtrs of land comprising of Nadi area,
gamtal area and Survey No.282/A/paiki was granted to
the petitioner.
II. As per the measurement sheet dated 31.07.2023,
which was objected by the petitioner before the DILR by
letter dated 02.09.2024, the petitioner was found in
actual possession of the total land admeasuring 49,758
sq.mtrs.
III. After excluding 33,980 sq.mtrs. grant land to the
petitioner, an area admeasuring 15,778 sq.mtrs. was
found to be encroached area in illegal possession of the
petitioner. The total encroached area may be divided
into 6,104 sq.mtrs of Nadi paiki (Sabarmati river bed
land), (which, in any case, cannot be regularized), 3185
sq.mtrs Gamtal land and 6489 sq.mtrs land comprising
of survey No.282/A/paiki.
IV. A bare perusal of the allotment order dated
30.04.1980 passed under Rule 32 of the Rules’ 1879
would indicate that the total land admeasuring 6261
sq.mtrs. (1401 sq.mtrs. of Gamtal land and 4860 sq.mtrs.
of survey No.282/A/paiki) was allotted with the specific
conditions that the map of construction shall be
approved by the Collector and without prior permission
of the Collector, no changes or additions could be made.
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The allotment order also contains a condition that in
case of breach of any of the conditions of the allotment
order, the land could be forfeited by the State
Government without paying compensation. There is
nothing on record, which would indicate that the map of
constructions was / were ever placed before the
Collector or approved by him.
V. As regards the regularization orders dated
23.07.1992 for an area admeasuring 10,296 sq.mtrs.
(2296 sq.mtrs. of Nadi paiki; 6000 sq.mtrs. of gamtal
land; 2000 sq.mtrs. of survey No.282/A/paiki), it may be
noted that the said regularization order was passed to
allot land subject to new and impartible conditions.
VI. Similarly, the regularization order dated
16.12.1997 for the total area of 17,423 sq.mtrs (592
sq.mtrs of Nadi paiki; 5775 sq.mtrs of Gamtal land; and
11,056 sq.mtrs of survey no.282/A/paiki) was with the
condition of the land being new and impartible
condition.
VII. The regularization order dated 23.07.1992 contains
the condition that any change or addition in the
construction shall be with the permission of the
competent authority. Whereas, the regularization order
dated 16.12.1997 contains a condition that the
permission for conversion of non-agricultural purposes
shall have to be taken from the competent authority.
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VIII. The order under Section 79A of forfeiture of land
allotted / regularized, passed under the Code
categorically records that as per the condition No.3, the
map of construction was required to be approved by the
Collector and the condition No.7 provided that prior to
using the land, the trust was required to take permission
as per form ‘K’ from Mamlatdar, Gandhinagar. No such
permission having been applied for or obtained, has
been brought on record nor any such permission has
been placed before us.
IX. As regards the regularization orders dated
23.07.1992 and 16.12.1997 are concerned, there is a
categorical averment in the show cause notice issued
under Section 79A of the Code that condition Nos.1 and
2 of both the said orders were violated. Condition No.1
of the said regularization orders categorically states that
the land shall be possessed by the trust subject to new
and impartible conditions, whereas condition No.2 is
that the trust shall not be carry out any profitable
activities other than religious activities over the lands,
subject matter of allotment.
X. It is categorically recorded in the order of the City
Deputy Collector dated 04.04.2025 under Section 79A in
Sharatbhang Case No.7 of 2023 that:-
(i) The petitioner has not produced any
documentary evidence to show that permission
from the Collector was obtained prior to using the
land allotted for educational purposes.
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(ii) The petitioner has not produced the accounts
regarding the income and expenditure of the
Ayruvedic, Homeopathic and Naturopathic clinics
and other centers being operated by it for
distribution and sale of religious texts, Ayurvedic
medicines, etc.
(iii) Though it is contended that the audited
accounts of charitable activities run by the trust
are regularly submitted to the office of the Charity
Commissioner but the petitioner had not produced
copies of any of those audited accounts before the
City Deputy Collector.
(iv) The evidence on record indicates that unaided
private school is being operated over the land in
question but the Ashram has not produced any
information concerning the number of students
admitted in the school, the fees structure, the
number of students residing in the hostel or the fee
standards for their stay and boarding.
(v) The Mamlatdar report categorically indicates
that various items manufactured by the Ashram are
being sold on site and the petitioner has been
engaged in profitable activities to which, no
contrary material had been produced.
XI. As regards 4860 sq.mtrs. of lands of Sabarmati
river bed, the record indicates that though there was a
resolution of the Revenue Department, Gandhinagar
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dated 06.01.1999 but the order of allotment of the said
land, if any, passed by the Collector, Gandhinagar has
not been produced. The evidence of payment of
Rs.2,39,841 on 26.01.1999 in the office of the Collector,
as such, would be of no relevance.
XII. Thus, out of total area of encroachment
admeasuring 15,778 sq.mtrs, the area of 4860 sq.mtrs
allegedly proposed to be allotted on 06.01.1999 cannot
be considered to be in occupation of the petitioner under
a legal allotment order passed by the competent
authority.
XIII. For the remaining area of 15,778 sq.mtrs – 4860
sq.mtrs = 10,918 sq.mtrs, which included 6489 sq.mtrs
of survey No.282/A/paiki and 3185 sq.mtrs of gamtal
land and 6104 sq.mtrs – 4860 sq.mtrs = 1244 sq.mtrs of
Nadi paiki, nothing has been brought on record, rather
the contention is that the petitioner is not in possession
of the aforesaid area.
XIV. As regards the development permission of the year
2008 and BU permission of 2009 taken from AUDA, the
same has no relevance, inasmuch as, no constructions
could have been raised over the grant lands, subject
matter of allotment / regularization orders, without
seeking permission from the office of the Collector /
Mamlatdar.
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XV. It may be noted that the petitioner claims to have
acquired 4860 sq.mtrs. of Nadi paiki land on the basis of
the resolution dated 06.01.1999, on payment of money,
which cannot be elevated to a valid order of allotment as
per the Land Revenue Code.
XVI. There is no dispute about the fact nor any
submissions have been made before us that while
conducting the proceedings under Section 79A and
Section 61 of the Code, due opportunity of hearing has
been afforded to the petitioner. The submission,
however, is that the replies and explanations submitted
by the petitioner along with the documentary evidences
have been conveniently brushed aside.
XVII. As noted hereinabove, the petitioner submitted
replied and written submissions before the competent
authority, which were duly considered and dealt with in
the orders impugned.
B. CONCLUSION.
154. In view of the abovenoted facts culled out from the
record, at the outset, we may say that no error can be found
in the order of the learned Single Judge in holding that in
absence of any valid allotment order, the area of 4860 sq.mtrs
of Nadi paiki is illegally occupied by the petitioner and shall
be treated as encroachment over the riverbed land. No
exception can be taken to the said opinion of the learned
Single Judge in dismissal of the writ petition challenging the
order passed in the proceedings under Section 61 of the Code.
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155. It is undisputed that the measurement sheet dated
31.07.2023 has been prepared by the DILR on the
measurement conducted by D.G.P.S method through satellite,
an electronic instrument .
156. Mr.G. H. Virk, the learned Government Pleader has
demonstrated from the record that the petitioner raised
objections to the measurement sheet dated 31.07.2023 before
the DILR by submitting previous measurements conducted on
his applications and the said objections were duly replied /
rejected by the DILR vide communication dated 31.09.2023,
which was not subjected to any further challenge.
157. The submissions of Mr.R. S. Sanjanwala, the learned
Senior Counsel for the petitioner before us that the
measurement sheet dated 31.07.2023 was prepared behind
the back of the petitioner and the same cannot be relied upon
as it was never put to the petitioner, stands belied by the said
fact. The submission that as the measurement sheet dated
31.07.2023 has not been supplied to the petitioner, as such,
the impugned order passed under Section 61 of the Code
would suffer from the vice of the principles of Natural justice,
is liable to be rejected outrightly being misleading.
158. Apart from the above, the only arguments made by
the learned Senior Counsel to confront the findings in the
measurement sheet dated 31.07.2023, are based on the
measurement sheets of 1998, 2008, 2013 and 2024. As has
been demonstrated before us, the said measurement sheets
are paiki measurement for the specific areas, and the details
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therein, as placed before us, clearly show that those
measurement sheet were got prepared by the petitioner on its
own, bereft of any detail about the surrounding areas. None of
these measurement sheets prepared prior to the year 2023
and also the subsequent measurement sheet dated 21.03.2024
got prepared by the petitioner through a Government
surveyor, can be made basis to attach any infirmity to the
details mentioned in the measurement sheet dated
31.07.2023, The learned Single Judge has rightly recorded
that the measurement sheet dated 31.07.2023 cannot be
allowed to be assailed on the basis of private measurements
carried out by the petitioner with a view to create evidence.
159. We do not find any error in the order of the learned
Single Judge in holding that the impugned order under
Section 61 of the Code was passed following the principles of
natural justice and taking into consideration the documents
on record. The petitioner has failed to establish any legal right
to occupy the land in question, namely 15,778 sq.mtrs, which
was found to have been encroached by it as per the DILR
measurement sheet dated 31.07.2023. The opinion drawn by
the learned Single Judge that there is no justification to
interfere in the concurrent findings of fact returned by the
competent authorities in the proceedings under Section 61 of
the Code, cannot be said to suffer from any error of law.
160. In the proceedings for encroachment of Government
land, that too the land of riverbed, the petitioner cannot seek
any indulgence of this Court in the present appeal under
Claus 15 of the Letters Patent, when no infirmity is found in
the opinion drawn by the learned Single Judge.
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161. Coming to the submissions made by Mr.Mihir
Thakore, the learned Senior Counsel for the petitioner about
the summary proceedings drawn under Section 79A for
forfeiture of grant land for breach of conditions of the
allotment / regularization orders, suffice it to say that, the
provision of Section 79A are contained in Chapter VI of the
Land Revenue Code’1879, which deals with the grant, use and
relinquishment of any alienated land belonging to the State
Government. The order of grant dated 30.04.1980 for Ashram
school under Rule 32 of the Rules’ 1972, and the
regularization orders dated 23.07.1992 and 16.12.1997, have
been passed subject to the conditions mentioned therein. In
the matter of allotment of Government land, the requirement
for the petitioner was to adhere to the conditions of the
allotment order.
162. Even if it is accepted for a moment that the total area
of 6261 sq.mtrs of land was allotted under the allotment order
dated 30.04.1980 for the specific purpose of Ashram school,
however, the conditions attached thereto, to seek approval of
the map from the Collector and permission from the
Mamlatdar for use for constructions, had not been adhered to
by the petitioner.
163. A regards the land, subject matter of two
regularization orders dated 23.07.1992 and 16.12.1997 are
concerned, they were regularized with the new and impartible
conditions. The permission for utilization of the said pieces of
land, for raising constructions and use for non-agricultural
purposes, was required to be taken from the office of the
Collector.
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164. In the instant case, the petitioner – trust has raised
constructions over a substantial piece of lands, subject matter
of allotment / regularization orders. The Satellite Map
showing the position of the existing constructions and the
measurement sheet giving description of the occupation of the
total area land by the petitioner dated 31.07.2023 clearly
indicate that extensive constructions have been made by the
petitioner – trust over the lands in question ignoring the
conditions of the allotment / regularization orders with
impunity.
165. As per own statement of the petitioner, 30
regularization applications have been filed under GRUDA in
the month of February’ 2023, which fact itself is the proof that
the petitioner raised extensive constructions over the lands in
question, even without obtaining permission from the
concerned development authority. One of the permissions
taken from AUDA in the year 2008 / 2009 is of no benefit to
the petitioner for the simple reason that the permission of the
Collector before seeking development permission from AUDA
has not been obtained.
166. From an exhaustive consideration of the extensive
arguments made by the learned Senior Counsel for the
petitioner and the material brought on record, it is more than
evident that no infirmity can be attached to the proceedings
drawn by the respondent authorities under Section 79A of the
Code, which empowers the respondents to forfeit the grant
land on breach of conditions of allotment.
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167. Further, the contention of the learned Senior Counsel
for the petitioner is that the breach of condition order
pertains to breach of conditions of the allotment /
regularization order on the allegations that the subject land
has been utilized for profitable activity. The submission is that
for the fact that all constructions raised by the petitioner over
the allotted / regularized land are being used for spiritual and
educational activities, which is the purpose of allotment /
regularization of lands, the finding that the trust had indulged
in profitable activity by sale of spiritual literature, Ayurvedic
medicines and running school on fee paid by the student, is
bereft of any evidence.
168. The submission is that a negative burden has been
laid upon the petitioner to establish that it has not indulged in
any profitable activity whereas there was no evidence to the
contrary.
169. Dealing with this submission, suffice is to note that
nothing has been brought on record to demolish the findings
in the order passed by the City Deputy Collector that no
evidence of audited account regarding income and
expenditure of the trust allegedly produced regularly in the
office of the Charity Commissioner, was placed before the
Deputy Collector. No evidence of income and expenditure
from the activities of the trust has been produced. The
petitioner has not given any details of the income and
expenditure of the school run by it by providing information
regarding the fee structure, number of students admitted in
the school, residing in the boarding, etc. These evidence were
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crucial and material to establish the case of the petitioner that
the petitioner – trust has not been engaged in any profitable
activities and sale of medicines, books, etc, are only a part of
non-profitable activities of the trust.
170. In other words, the best evidence in the shape of the
account books etc. was in the possession of the petitioner,
which could have been produced before the City Deputy
Collector to demonstrate that the earning of the trust from
various activities was not for profiteering. As the best
evidence in the possession of the petitioner has been
withheld, adverse inference is to be drawn. No error, as such,
can be said to be in the order of the City Deputy Collector in
holding that no cogent evidence has been presented to prove
that the petitioner is not engaging in profitable activities.
171. Considering the facts and circumstances of the
present case, it is evident that the petitioner – trust not only
violated the conditions of the orders of allotment /
regularization orders of grant of Government land, but also
encroached upon a substantial area of open land surrounding
the allotted lands, even the land from the riverbed, for its use
and illegal occupation over the period of years. The petitioner
is found to be a habitual offender, who had earlier encroached
on a large area of about 51,101 sq.mtrs of open land forming
part of Sabarmati river, which was proved in the eviction
proceedings conducted under Section 61 of the Code in the
year 2009. Even otherwise, the allegations of breach of
conditions of the allotment / regularization orders have been
found to be proved by the learned Single Judge as well as by
us in view of the discussion made hereinabove.
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172. Lastly, on the vehement arguments made by the
learned Senior counsel for the appellants on the allegations of
mala fide and bias with the assertion that the lands in
question were identified and included in the proposed
available lands for sports complex, based on the
communications dated 03.06.2021 of AUDA and the letter
dated 25.01.2022 of the Collector, suffice it to say that :-
(i) in the previous petition filed by the petitioner in
challenging the order dated 25.01.2022 of the Collector
imposing reservation, no such arguments have been
made. The judgment and order dated 26.03.2025 passed
in Special Civil Application No. 17521 of 2024, simply
noted that the communication dated 25.01.2022 of the
Collector was merely an inter-departmental
communication.
(ii) In any case, the inter-departmental communications
dated 03.06.2021 and 25.01.2022 cannot be considered
to be the basis of the passing of the order for forfeiture
of land under Section 79A of the Code. These
communications may be considered merely as a part of
the execise of identification of available land for the
purpose of sports complex, wherein the illegal
constructions raised by the petitioner over the lands in
question were identified and noted.
(iii) We find substance in the submission of Mr. G.H.
Virk, learned Government Pleader that if a Government
land is allotted to a private person on the terms and
conditions of the allotment order, which if violated,Page 76 of 80
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Sharatbhang proceedings can be initiated, at any point
of time, as per the conditions of allotment itself, which
permits resumption of the Government land in cases of
such violations. Identification of such violations is a
continuous exercise, however, any encroachment or
unauthorized constructions, if identified, can be removed
only by adopting due procedure of law.
(iv) In the instant case, as noted hereinabove, no
infirmity could be shown in the legality of the
proceedings conducted against the petitioner, in the
Sharatbhang case proceeded under Section 79A,
wherein after affording due opportunity of leading
evidence and personal hearing granted to the petitioner,
the order of forfeiture has been passed. All allegations
of mala fide or bona fide of the respondent authority,
vehemently pressed into service by the learned Senior
Counsel to assail the judgment impugned are liable to be
rejected outrightly.
173. As regards the submissions based on the doctrine of
proportionality, the petitioner is found to be a habitual
offender, inasmuch as, it had encroached upon a large area of
about 51,101 sq. mtrs. of land forming part of river
Sabarmati, wherefrom it had been evicted in the proceedings
initiated against him in the year 2009, concluded in the year
2013 and had further made encroachment, subject matter of
the present proceedings, we, therefore, do not find any good
ground to issue a direction to the respondent authorities for
regularization of the existing constructions, which are
otherwise extensive, even covering the river bed.
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174. The repeated conduct of the petitioner, as noted
hereinabove, is sufficient to upturn the challenge on the
ground that resorting to the drastic power of resumption and
forfeiture of land on the part of the respondent was guided by
mala fide exercise of power and without any authority of law.
Accordingly, the submission made by the learned Senior
counsel for the petitioner on the doctrine of proportionality
also deserves to be rejected.
175. In the said scenario, we do not find it a fit case to
grant any indulgence to the petitioner by invoking our
discretionary power under Article 226 of the Constitution of
India. No equity lies in the favour of the petitioner.
176. In the totality of the facts and circumstances of the
present case, none of the prayers made in the two writ
petitions can be granted. At the cost of repetition, it is stated
that there is no question of regularization of a riverbed land
encroached by the petitioner. Any such indulgence would be
contrary to the decision of the Apex Court. Even otherwise, no
error having been found in the concurrent findings of fact
returned by the competent authorities in two proceedings
under Section 79A and Section 61 of the Code, separately,
wherein principles of natural justice have been duly followed,
we cannot attach any infirmity to the order of the learned
Single Judge in dismissing both the writ petitions, while
refusing to exercise the discretionary jurisdiction of the
constitutional court.
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177. With the above, both the appeals are dismissed being
devoid of merits. No order as to costs. Pending civil
applications in the concerned appeals, stand disposed of,
accordingly.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
FURTHER ORDER
1. After the judgment was delivered in open Court, Mr. Mihir
Thakore and Mr. R. S. Sanjanwala, learned Senior Advocates
appearing for the appellants in the connected writ petition would
submit that since the appellant is in possession of the lands in
question and there exist constructions over the same which are in
use as on date in view of the interim order passed by this Court,
the effect and operation of this judgment may be stayed for a
reasonable period, atleast for four weeks so that the appellant may
approach the higher Court.
2. This prayer is vehemently objected by Mr. G. H. Virk, learned
Government Pleader by making a statement to the effect that the
eviction proceedings have been initiated in the year 2023 and after
the adjudication by City Mamlatdar and City Deputy Collector in
the year 2023 itself, the petitioners have been able to continue in
the illegal occupation of the government land for a period of three
years. No more indulgence may be granted to the petitioners.
3. Apart from the above, it is submitted that even otherwise,
after final adjudication of the proceedings under Sections 61 and
79 A of the Gujarat Land Revenue Code, the State would be
required to issue a notice to the petitioners under Section 202 of
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the Land Revenue Code giving them time to hand over the vacant
possession of the lands in question, failing which only coercive
actions would be initiated.
4. In view of the undertaking given by Mr. G. H. Virk, learned
Government Pleader that in the notice to be issued under Section
202 of the Land Revenue Code, a reasonable time would be given
to the petitioners to vacate the lands in question and hand over
peaceful possession thereof to the competent authority, we do not
find any good ground to entertain the prayer for grant of stay of
operation of this judgment, as pray ed for. The prayer for stay is
accordingly, rejected.
(SUNITA AGARWAL, CJ )
(D.N.RAY,J)
SAHIL S. RANGER
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