Gujarat High Court
Bhikhiben Ambalal Chandulal Rana & 2 vs State Of Guajrat & on 3 March, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/1539/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1539 of 2000
With
SPECIAL CIVIL APPLICATION NO. 1296 of 2000
With
SPECIAL CIVIL APPLICATION NO. 1291 of 2000
With
SPECIAL CIVIL APPLICATION NO. 12010 of 2000
With
SPECIAL CIVIL APPLICATION NO. 12132 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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BHIKHIBEN AMBALAL CHANDULAL RANA & 2....Petitioner(s)
Versus
STATE OF GUAJRAT & 1....Respondent(s)
================================================================
Appearance:
MR RR SHAH, ADVOCATE for the Petitioner(s) No. 1 - 3
MR.MANAN MEHTA, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 03/03/2017
ORAL JUDGMENT
1. Heard Mr. R.R.Shah, learned advocate and Mr. Pathan, learned advocate for petitioners and Mr. H.J.Shah, learned advocate for private respondent and Mr. Mehta, learned AGP.
2. Though different Petitioners have filed present petitions and though they have challenged different orders passed by the authorities in respect of different parcels of land, the petitions are heard together and decided by this common order because the learned advocates for the petitioners have challenged the orders on similar and common grounds and the private respondents as well as learned AGP have also made common submissions to oppose the petitions. The principal contention in all the petitions is common inasmuch as the petitioners have Page 2 of 27 HC-NIC Page 2 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT challenged the order essentially on 2 grounds viz. (i) the action against impugned sale transactions could not have been initiated after unreasonable delay; and (ii) Section 73(A) of Bombay Land Revenue Code (hereinafter referred to as the "Code") could not have been invoked and applied against the transactions executed by the petitioners.
3. So far as factual background involved in the petitions on hand is concerned, the parcels of land in respect of which dispute have arisen, are situate in different villages of erstwhile State of Rajpipala.
3.1 It has emerged from the record and from the submissions by learned advocates for the petitioners and private respondents and learned AGP that the original land owners in respect of lands in question were tribal and they executed transactions with the petitioners without taking permission from competent authority under Section 73Aof the Code.
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3.2 After passage of more than 3 years, the authority under the Code issued notices to the petitioners calling for their reply as to why the transactions have been executed in breach of Section 73A of the Code. The petitioners submitted their replies in response to the notices.
3.3 Thereafter, the authority adjudicated the notices and passed orders against petitioners holding, inter alia, that the transactions were executed without permission from the authority and that, therefore, the petitioners committed breach under Section 73A. The Competent Authority passed order and cancelled the transactions. 3.4 Feeling aggrieved by the order passed by the competent authority, the petitioners approach the Appellate authority and, thereafter the revisional authority.
3.5 Both the authorities respectfively rejected the appeals and revisional applications filed by the petitioners.
3.6 Now concerned persons have taken out present Page 4 of 27 HC-NIC Page 4 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT petitions against the order passed by the first adjudicating authority, Appellate Authority and Revisional Authority.
4. While assailing the impugned orders learned advocate for the petitioners would contend that the disputed transactions were executed before 4.4.1961 and that, therefore, the provisions under Section 73A of the Code would not be attracted and applicable in present cases. They would further contend that since the transactions were executed before 4.4.1961 there was no obligation on the parties to the transactions to seek permission from the authority and that, therefore, it cannot be said that the transactions were entered into in breach of Section 73A of the Code. Another contention which is urged by the petitioners against applicability of the Section 73A of the Code is that in the erstwhile State of Rajpipla, Survey Settlement was carried out and that, therefore, the provisions under Section 73A of the Code would not be applicable. The last contention, which the Page 5 of 27 HC-NIC Page 5 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT learned advocate for the petitioners raised, is on ground that the proceedings were instituted after unreasonable delay.
5. The learned advocate Mr. H.J.Shah for private respondents in Special Civil Application No. 1296 of 2000 and Special Civil Application No. 1291 of 2000. Other respondents have not entered appearance. Mr. Mehta, learned AGP and Mr. H.J.Shah, learned advocate opposed the submissions with reference to Section 73A of the Code and also opposed the submissions against impugned orders. Learned AGP and learned advocates for the respondents would submit that concurrent findings of facts and concurrent decisions have been recorded against the petitioners and that, therefore, there is no justification to set aside the impugned orders. The authorities have not committed any error in recording findings of facts. Learned advocates for private respondents and learned AGP would submit that actually the facts are not in dispute and that, therefore, there is no ground to oppose Page 6 of 27 HC-NIC Page 6 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT the finding recorded by the authorities. It is also contended by learned AGP and learned advocate for private respondents that the petitioners failed to place any evidence on record that the disputed transactions were executed before 4.4.1961 and/ or in the erstwhile State of Rajpipla, Survey Settlement was carried out before 4.4.1961 and that, therefore, the contention against applicability of Section 73A of the Code is without merits. So far as the petitioners' objection on the ground of delay is concerned, learned advocate for private respondents or learned AGP submitted that the initiation of proceedings is nto hit by unreasonable delay inasmuch as the authorities initiated the proceedings within reasonable time.
6. I have considered rival submissions on record and I have also considered impugned orders and material available on record.
7. Upon reading impugned orders it has emerged Page 7 of 27 HC-NIC Page 7 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT that the authorities have recorded concurrent findings of facts. The first adjudicating authority, the Appellate authority and the Revisional Authority have, on appreciation of evidence, found that the petitioners failed to place any material on record which could estabish that the transactions were executed before 4.4.1961. The authorities have also held that transactions were executed without complying condition prescribed under Section 73(A) i.e. without seeking permission of the competent authority, the transaction would be nullity.
8. So far as applicability of Section 73A of the Code is concerned, it is appropriate to consider, at this stage, the decision in case of Devshankar Ambalal Taji v/s. State of Gujarat, 1996(2) GLH
330. In the said decision, the Court has observed and held , inter alia, that:
"6. The important question which falls for appreciation and adjudication is whether the settlement of survey of land revenue made by the Erstwhile State Idar, prior to the introduction of the provisions of Bombay Land Revenue Code could be said to be a survey settlement under the BLR Code. The contention of the petitioners is that the survey settlement of land revenue carried out by the authority of Page 8 of 27 HC-NIC Page 8 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT the Erstwhile state of Idar came to be accepted by the State Government and it has become a survey settlement under the Bombay Land Revenue Code. The contention of the respondent authority is that the survey settlement of land revenue made prior to the introduction of the Bombay Land Revenue Code cannot be said to be a survey settlement under the Bombay Land Revenue Code. However, there is consensus on one point. If the survey settlement of land revenue carried out by some authority and accepted by the State Government is held to be a survey settlement under the Bombay Land Revenue Code, then, in that case, a notification issued under section 73-A of the BLR code will not apply. Notification No.LND-3961/41509-G dated 4th April, 1961 came to be published by the respondent No.1, State of Gujarat, exercising its powers of section 73-A of the BLR Code. By virtue of the said notification, the provisions of section 73-A shall be applicable to all those villages in the scheduled area in the State of Gujarat in which survey settlement under the Bombay Land Revenue Code has not been introduced and to which the provisions of the said section 73-A have not been made applicable before the issue of the notification. It also exempts from the operation of section 73-A, all persons not being members of a Scheduled Tribe, holding lands in the villages to which the said section 73-A is declared to be applicable by the notification. The area where the disputed land is situated is shown in the scheme about which there is no dispute . It is in this context, the aforesaid contention that the notification will not apply to the disputed land as survey settlement had already been effected long before by the Erstwhile State of Idar. The contention of the petitioner is not accepted by the authorities below after remand. Therefore, the question would arise as to whether the said notification will apply to the disputed land or not for which it would be necessary to examine as to whether the survey settlement carried out by the authority before the introduction of the Bombay Land Revenue Code could be said to be survey settlement under the Bombay Land Revenue Code or that fresh survey is required to be made for attracting the rigours of the provisions of section 73-A of the BLR Code. With a view to appreciating this aspect which is countenanced by the State of Gujarat, a few relevant provisions would be necessary to be referred to.
8. It could very well be seen that survey settlement defined under the Bombay Land Revenue Code is inclusive and it includes a settlement made under the provisions of Chapter VIIIA. The definition of survey settlement as contained in section 3(3) is not to be interpreted in its restricted, narrower or orthodox sense so as to exclude the survey settlement made by an authority under the provisions of other law. If such survey settlement though not made under the code is accepted by the State Government, it is to be treated as the one made under the Bombay Land Revenue Code. It will be now interesting to refer to the provisions of Chapter VIIIA of the Bombay Land Revenue Code. This chapter deals with the provisions of assessment and settlement of land revenue of agricultural land. What will be the position quo the Page 9 of 27 HC-NIC Page 9 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT survey settlement made prior to the introduction of the Bombay Land Revenue Code, is provided in section 117-R which reads as under:
"117-R. Settlement made before this Act to be deemed under this Chapter-
All settlement of land revenue, heretofore, made and introduced and in force at the date of the commencement of the Bombay Land Revenue Code (Amendment) Act, 1939, shall be deemed to have been made and introduced in accordance with the provisions of this Chapter and shall, notwithstanding anything contained in section 117E, be deemed to continue to remain in force until the introduction of a revision settlement."
9. It is explicit from the plain perusal of section 117-R that the settlements made before the introduction of the Bombay Land Revenue Code are to be deemed to be settlement under Chapter VIIIA. All settlements of land revenue undertaken and introduced and in force at the date of commencement of Bombay Land Revenue Code (Amendment) Act, 1939 are deemed to have been made and introduced in accordance with the provisions of Chapter VIIIA. Not only that, there is further provision which is very important. Such deemed survey settlement made before the Act, notwithstanding anything contained in section 117-E shall be deemed to continue to remain in force until a revised settlement is introduced.
10. In Chapter VIIIA of the BLR Code, provisions are made for assessment and settlement of land revenue of agricultural land in section 117C to 117R. In section 117- E, the term of settlement is provided. There is a provision that the settlement shall remain in force for a period of 30 years under section 117E provided that in the case of any particular settlement, it is open for the State Government to direct reduction of period less than 30 years. The State Government is also empowered to extend the term of the settlement for such period as it may think fit. Section 117-E reads as under :
"117-E. The term of settlement --A settlement shall remain in force for a period of 30 years:
Provided that in the case of any particular settlement, the State Government may, for reasons to be recorded, direct that the settlement shall remain in force for any period less than 30 years:
Provided further that, when in the opinion of the State Government a revision settlement is inexpedient, or when the introduction of such settlement has, for any cause, been delayed, the State Government may extend the term of the settlement or the time being in force for such period as it may think fit."
11. Section 117R has overriding effect for the purpose of term of the settlement in respect of such settlement of land revenue which came to be made and introduced and remained in force at the date of commencement of the Bombay Land Revenue Code (Amendment) Act, 1939. A Page 10 of 27 HC-NIC Page 10 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT combined reading of the provisions of section 73-A and section 117-R, it becomes explicit that the survey settlement of land revenue carried out by some authority before the introduction and remaining in force at the date of commencement of the Bombay Land Revenue Code (Amendment) Act, 1939 doubtlessly becomes the survey settlement under the Bombay Land Revenue Code.
12. It is in the aforesaid factual scenario and the legal context, the notification in question dated 4th April, 1961 would not apply to the land in question. The notification issued under section 73-A of the Bombay Land Revenue Code itself says that the provisions of section 73-A shall be applicable only to those villages in scheduled areas in the State of Gujarat in which survey settlement under the Bombay Land Revenue Code has not been introduced whereas on the factual analysis and the assessment of facts, this Court has found that there was already survey settlement of land for land revenue carried by the Erstwhile State of Idar in 1934 and it was in force at the time when the Bombay Land Revenue Code (Amendment) Act, 1939 came into force. Not only that the respondent No.1 State of Gujarat had accepted the said survey settlement of land revenue and has been accordingly recovering the assessment under the Bombay Land Revenue Code. Thus, the survey settlement of land for the purpose of revenue and assessment carried by the erstwhile State Idar in as early as 1934 which remained in force at the commencement of the Bombay Land Revenue (Amendment) Act, 1939 came to be accepted by the State Government and accordingly the assessment is made and revenue is recovered in respect of the disputed land. It is in these circumstances, the survey settlement of land carried out by authority of the Erstwhile State Idar and accepted by the State of Gujarat, undoubtedly, and obviously would become the survey settlement under the Bombay Land Revenue Code and therefore, the aforesaid notification dated 4th April, 1961 under which the impugned orders came to be passed would not apply and resultantly the impugned orders cannot be sustained.
13. The object of Section 73A is to protect members of scheduled tribes against exploitation.The provision aims at to put restriction on transferability of occupancy in certain tracts and area where such protection was necessary. It is true that section 73A provides that a notification can be issued under the section in respect of any tract or village in which original survey settlement is not introduced. The area of operation of the section is clearly demarcated. Thus,the section specifies the area in which it can be brought into operation and the person or class of persons in respect of whom it can be brought into operation. Thus, a prohibition injected against transfer of land in any tract or village to which notification is issued under Section 73A is to provide protection to persons belonging to scheduled tribes and in certain tracts and areas. However, notification under Section 73A issued by respondent No.1-State of Gujarat dated 4.4.1961 clearly ipso facto says that it shall apply to all those villages Page 11 of 27 HC-NIC Page 11 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT in the scheduled areas in the State of Gujarat in which survey settlement under the Bombay Land Revenue Code has not been introduced and to which provisions of section 73A have not been made applicable before issue of notification.Since survey settlement in respect of the disputed land situated in Bhiloda in Sabarkantha district had been made in, as early as, in 1934, the said notification will not apply to the disputed land. Despite this, the impugned orders came to be passed exercising powers under section 73A relying on the said notification. The respondent authorities lost sight of this proposition that survey settlement had been made by the authority of the Erstwhile State of Idar and it came to be accepted by respondent No.1-State of Gujarat . Consequently, it becomes survey settlement under the Bombay Land Revenue Code,with the result,the impugned order of the Deputy Collector dated 26.9.1990 wherein it is held that there was violation of section 73 A and,therefore,the transfer is held to be illegal, is itself illegal and it is wrongly confirmed by the Collector in appeal so also by respondent No.1 in revision . Thus, the order of the Deputy Collector dated 26.9.1990 which came to be confirmed in appeal No. 127 of 90 on 15.9.1992 by the Collector and lastly which came to be confirmed by respondent No.1 in revision on 30.11.1993 is not only unjust but is perverse and illegal requiring interference of this court in this petition under Article 227 of the Constitution of India.
14. Attention of this court is also invited by the learned counsel for the petitioner that the same respondent-authority-Deputy Collector in a similar set of circumstances in the case of adjoining land to the disputed land has held that the notification does not apply. A copy of the said order is produced on record. Reference of this matter is also made in the impugned orders. There is no dispute about the fact that in the matter of adjoining land being land case No. 19/89 (case of the petitioner being No. 20/89) in respect of land bearing No.. 653 in the same set of circumstances , it is concluded that there is no violation of provisions of section 73 ı A and there was no application of the said notification. This aspect has not been explained by the respondents for the reasons best known to them.
15. The view of this court while interpreting the text of the notification in question and the provisions of section 73A is supported by the proposition laid down by the Division Bench of this court in the case of Ahmedbhai Memon vs. State, 13 GLR 354. It is held in the said case that section 73A of the Code was introduced in order to give such power to the Collector to put a restriction on the transferability of occupancy in certain tracts and areas where such protection was necessary. As the section provides that a notification under section 73A can be issued in respect of any tract or village in which original survey settlement is not introduced, the area of operation of the section is, clearly, demarcated.It means that the section specifies the area in which it can be brought into operation. Thus, if notification is issued under section 73A in respect of certain area or tract Page 12 of 27 HC-NIC Page 12 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT occupancy of the land in that area and tract to which the notification applies, obviously, would not be transferable without previous sanction of the Collector which in the absence of notification,would have been transferable without any restriction or fetter. The original petitioner purchased the disputed land from the tribal by a registered sale deed dated l6.11.1973. It is true that it was transferred by a tribal to a non- tribal.It is also true that it was without the previous sanction of the Collector. If the provisions of section 73A are not applicable to the land in question, obviously no previous sanction of the Collector was required. Under section 73A, it is very clear that occupancy in respect of the land is transferable and heritable. Inhibition is incorporated by the provisions of sections 73A and 73AA against transferability. If notification issued thereunder applies in the present case, as observed hereinbefore, to the disputed land, though purchased by a non-tribal from a tribal, no previous sanction of the Collector was required in view of the fact that provisions of section 73A and resultant notification thereunder did not apply. The decision in Ahmedbhai's case (supra) supports the view taken by this court.
9. Profitable reference can also be had to the decision in case of Ranjitsinh P. Vasava and Ors v. Secretary, Revenue Department and Anr (2001 (1) G.L.H. 229) wherein the Court observed and held, inter alia, that:
"Section 73 of the Code provides that - " an occupancy shall, subject to the provisions contained in section 56 and to any conditions lawfully annexed to the tenure, and save as otherwise prescribed by law, be deemed an heritable and transferable property ". Section 73-A (1) & (2) of the Code reads as under :
73-A : POWER TO RESTRICT RIGHT OF TRANSFER : (1) Notwithstanding anything in the foregoing section, in any tract or village to which the State Government may, by notification published before the introduction therein of an original survey settlement under section 103, declare the provisions of this section applicable, occupancies shall not after the date of such notification be transferable without the previous sanction of the Collector.
(2) The State Government may, by notification in the Official Gazette, from time to time exempt any part of such tract or village or any person or class of persons from the operation of this sanction.
Thus, the power to transfer the land situated in any tract Page 13 of 27 HC-NIC Page 13 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT or village before introduction therein of a original Survey settlement under section 103 of the Code, is restricted after the State Government by a Notification declares the provisions of section 73-A to be applicable. Section 73-AA (3) (b) of the Code reads as under :
73-AA : RESTRICTION ON TRANSFER OF OCCUPANCIES OF TRIBALS TO TRIBALS OR NON-TRIBALS :
(1) xxx xxx xxx (2) xxx xxx xxx (3) (a) xxx xxx xxx
(b) where -
(i) a tribal in contravention of sub-section (1) of section 73-A or of any other law for the time being in force has transferred his occupancy to another tribal at any time during the period commencing on the 4th April, 1961 and ending on the day immediately before the date of commencement of the Bombay Land Revenue (Gujarat Second Amendment) Act, 1980 (Guj. 37 of 1980), and
(ii) the tribal transferee or his successor in interest has not been evicted from such occupancy under section 79-
A. the transfer of occupancy shall be valid, as if it were made with the previous sanction of the Collector under section 73-A.
4. The Chief Secretary (Appeals) under his order dated 7th December, 1991, has held that the original survey settlement under the Bombay Land Revenue Code in Rajpipla was already introduced. In that view of the matter, the provisions contained in section 73-A of the Code were not applicable to the transfer in question. The said transfer was legal and valid and was not required to be held to have been regularised under section 73-AA of the Code. The orders of the authorities below holding that the transfer in question stood regularised under section 73-AA of the Code have, therefore, been set aside.
5. I am of the view that the petition is wholly misconceived. It is held under the impugned order that in the area of Rajpipla (i.e. where the land in dispute is situated), the original survey settlement under the Code was already introduced and section 73-A of the Code, therefore, did not apply. Since section 73-A of the Code did not apply, the previous sanction of the Collector was not required. Hence, the transfer in question was legal and valid. Therefore, no cause of action can be said to have been accruedto the petitioners. On the contrary, the order is in favour of the petitioners and the petitioners who had already been dispossessed in the year 1988 ought to have been immediately put into the possession of the land in question. To me, it appears to be an unfortunate case where a purchaser of the land for consideration has been dragged into unnecessary litigation for 40 years after the purchase. First, the proceedings were initiated under section 73-A and 79-A of the Code in the year 1974 i.e. more than ten years after the transfer. Though the transfer was found to be legal and valid by the Deputy Collector and though the order was not challenged further , the proceedings afresh were initiated in the year 1978 unnecessarily which has led to a long-drawn litigation and also the dispossession of the petitioners from their lawfully purchased land."
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10. From above quoted observations and decision by the Court, it comes out clearly that (a) for the parties to be able to and to be in position to contend that the provisions and restriction under Section 73A of the Code, are not attracted, it must be shown that in the erstwhile State, Survey Settlement was carried out before 4.4.1961 and that (b) the said Survey Settlement is accepted by the Government and (c) the disputed transactions was executed before 4.4.1961.
11. In present cases, it has emerged from the record that in certain cases, contention on the ground of survey settlement was raised before the Appellate authority and/ or Revisional Authority whereas in some cases, the contention is raised for the first time before this Court. Therefore, Mr. Shah, learned advocate for the private respondent and Mr. Mehta, learned AGP would submit that the cases in which the contention was not raised before the authorities, the petitioners should not be allowed to raise the Page 15 of 27 HC-NIC Page 15 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT said contention for the first time in the petitions.
11.1 The said contention, to an extent, is justified.
11.2 However, in present cases, the Court cannot overlook the fact that in all petitions the parcels of land involved in disputed transactions are situate in different villages of erstwhile State of Rajpipla taluka and the contention that Survey Settlement was carried out in erstwhile State of Rajpipla, is raised in respect of said entire area.
11.3 Thus, if on verification of factual aspects, it emerges that (i) Survey Settlement was actually carried out in erstwhile State of Rajpipal and that (ii) the said settlement has been accepted by the State Government, then it would be unjust and improper to dismiss the cases of the petitioners who failed to raise the contention before the concerned authorities because if survey was actually carried out in erstwhile State before 4.4.1961 and that survey Page 16 of 27 HC-NIC Page 16 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT has been accepted by the State Government, then applicability of Section 73A of the Code in respect of lands in question/ area in question may be ruled out.
12. What is actually important is the fact that even in case where the petitioners have specifically stated that survey settlement was carried out in erstwhile State of Rajpipla and that, therefore, Section 73A cannot be invoked and applied in their cases, unfortunately any material in light of which this Court can determine as to whether the Survey was actually carried out before 4.4.1961 or not and whether the survey has been accepted by the State Government or not, is not available and that, therefore, it is not possible for this Court to examine and decide the said factual position.
13. In present cases, the issues which arise are:
(1) whether survey settlement was actually carried out in erstwhile State before 4.4.1961 or Page 17 of 27 HC-NIC Page 17 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT not.
(2) Assuming that such settlement had been carried out, the question which would still survive is whether it can be considered survey settlement contemplated under Section 73A of the Code or not and (3) assuming that survey settlement was carried out in the erstwhile State before 1961, whether it has been accepted as a Survey Settlement for the purpose of Section 73A of the Code by the State Government or not.
14. The said issues, have not been addressed by the Authorities even in the cases where the said contentions were raised. Therefore, it is necessary that the said contention should be determined in light of the legal position settled by this Court in above referred decision, however only after verification of factual aspects and after ascertaining that all preconditions are fulfilled, or not.
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15. Of course, from certain submissions by learned AGP, it appears that probably in 3 talukas of erstwhile State of Rajpipla namely Nandod, Dediapada and Sagbara, survey settlement was undertaken (probably in 1930, 1924 and 1923 respectfully).
15.1 However, any material to ascertain and verify the said factual aspect is not available on record of these petitions.
15.2 Further, there is, even otherwise, no material on record to assist the Court in examining as to whether the said settlement has been accepted by the State Government or not.
16. In this background, learned AGP also emphasised that the observation by the competent authority that the petitioners did not place on record any evidence to establish that the transactions had taken place prior to 4.4.1961. However, the petitioners claim that transactions were executed before 4.4.1961 and the said fact can be and should be examined by the authorities.
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17. At this stage, it would also be appropriate to take into account the Notification dated 4.4.1961, which was referred to by learned AGP. The said Notifications read thus:
"In exercise of the powers conferred by Section 73A of the Bombay Land Revenue Code, 1879 (Bom.V of 1879), the Government of Gujarat hereby
(i) declares that the provisions of the said Section 73A shall be applicable to all those villages in the Scheduled areas in the State of Gujarat in which survey settlement under the said code has not been introduced, and to which the provisions of the section 73A have not been made applicable, before the issue of this notification, and (2) exempts from the operation of the said section 73A all persons, not being members of a Scheduled Tribne, holding lands in the villages to which the said Section 73A is declared to be applicable by this notification.
By order and in the name of the Governor of Gujarat."
And the Resolution dated 05.04.1961 reads thus:
"Attention of the Collectors is invited to Government Notification. No.LND 3961/41509.G, dated 4th April, 1961, published in the Gujarat Government Gazette Extraordinary (Part IV.B) dated 5th April, 1961, applying provisions of section 73A - Bombay Land Revenue Code to all villages in the Scheduled areas of the State.
The ban on transfers of occupancies imposed under Government Notification No.LND 3961/41509.G, will apply to all Scheduled areas in which survey settlement under Chapter VIIIA (which has been replaced Section 103) of the Land Revenue Code has not been introduced. In some of the Scheduled areas //// from states like Rajpipla and Bansda, a survey settlement was introduced during the exstates' regime under the exstates' orders, but this survey settlement is not deemed to have been done under Chapter VIIIA of the Bombay Land Revenue Code, 1879 and, therefore, the scope of Section 73A of the Land Revenue Code is not yet exhausted so far as such Page 20 of 27 HC-NIC Page 20 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT areas are concerned and the ban imposed under Government Notification No.LND. 3961/41509.G, dt. 4461 will apply to such areas also.
By order and in the name of the Governor of Gujarat."
18. Ofcourse, in the decision in the case of Devshanker Ambalal Jani V/s. State of Gujarat (Supra), this Court has, after taking into account various provisions under the Code and while addressing the issue as to whether the survey settlement of the land revenue undertaken by some authority and accepted by the State Government would become survey settlement under the Bombay Land Revenue Code, held that such survey settlement should be considered for the purpose of Section 73A as well. However, reading the said decision, it becomes clear that in the said decision also, the Court considered and emphasized the requirement that survey should be accepted by the State Government. Thus, the requirement that the survey settlement undertaken by any other authority before April, 1961, then for considering such settlement as the settlement Page 21 of 27 HC-NIC Page 21 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT for the purpose of Section 73A as well, its acceptance would be prime requirement. Further, in the said decision, this Court also took into consideration the provisions of Section 117A which provides that the settlement would be valid for a period of 30 years. This Court observed that the revision of such settlement is expedient.
19. Besides this, as mentioned above, the authority has specifically recorded that the petitioners failed to place material on record to establish that the transaction was executed before April, 1961.
20. On the other hand, learned AGP also emphasized, in light of the Government Resolution dated 05.04.1961, that the settlement undertaken by the erstwhile British State has not been accepted by the State of Gujarat.
21. Abovementioned aspects are factual aspects Page 22 of 27 HC-NIC Page 22 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT which have not been considered and have not been dealt with and decided by the first adjudicating authority or even appellate and/ or revisional authority.
22. The nature of the controversy between the parties and the disputes with regard to the decision of the competent authority bring out that the controversy and the grievance against the impugned orders cannot be decided finally, unless and until, the relevant factual aspects, more particularly, the relevant facts with reference to the survey settlement and the exact date when the transactions were executed, are duly established with the aid of relevant, cogent and satisfactory evidence.
23. In this background, learned counsel for the petitioners would submit that for the purpose of determining such relevant factual aspects, the matter may be remitted to the first adjudicating authority with direction to decide the issues in Page 23 of 27 HC-NIC Page 23 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT specified time limit. So as to support the said submission and request, Mr.Shah, learned counsel for the petitioners, relied on order dated 26.08.2008 in Special Civil Application No.9065 of 2008 wherein the Court remanded the proceedings for the purpose of determining the relevant factual aspects connected with the issue of survey settlement.
24. Even learned AGP also submitted that it would not be practicable or feasible to decide the contentions which are raised in the present petitions unless the factual aspects have been clarified and relevant evidence is examined by the adjudicating authority. Differently put, learned AGP also supported the submission of Mr.Shah and Mr. Pathan, learned advocates for the petitioners, where the learned AGP also made same request that in view of the peculiar facts and circumstances of the case, the matter can be decided only after relevant facts are examined and decided by the authority in accordance with Page 24 of 27 HC-NIC Page 24 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT law and in light of relevant evidence. This would necessitate that for the said purpose the cases should be remanded to the adjudicating authority to decide the relevant issues afresh, after granting opportunity of hearing to the parties and after granting opportunity to place on record the relevant evidence, in accordance with law..
25. In the facts and circumstances of the case, the request and submission by the learned counsel for the petitioners and learned AGP appears justified. Therefore, the following order is passed:
26. In the facts and circumstances of the cases, the impugned orders be set aside and the cases i.e. LRD/LND/B/249/80, SRD/LND/B/122/80, SRD/LND/B/109/80, SRD/LND/B/111/80 and SRD/LND/B/110/80 be remanded to the first adjudicating authority i.e. Prant Officer and Deputy Collector, Rajpipla, who would be competent authority/ first adjudicating authority Page 25 of 27 HC-NIC Page 25 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT to adjudicate and decide the cases.
27. It is clarified that the observations in the present order are only primafacie observations and this Court has not expressed any final view or opinion with regard to the merits of the case and that therefore, the competent authority will decide the cases afresh on its own merits and in light of the evidence which will be available on record and without being influenced by this order or previous orders which are impugned in the present petition.
28. It is also clarified that the competent authority will grant opportunity of hearing to present petitioners as well as private respondent and will allow both the parties to lead such evidence as the parties consider necessary and appropriate in support of their respective cases.
29. It is further clarified that having regard to the fact that the proceedings are very old, the Page 26 of 27 HC-NIC Page 26 of 27 Created On Sun Aug 13 10:50:36 IST 2017 C/SCA/1539/2000 JUDGMENT authority may endeavour to hear and decide the cases as expeditiously as possible and preferably within four months after receipt of certified copy of this order.
30. With aforesaid clarifications and directions, the petitions are disposed of. The cases are remanded as aforesaid and with aforesaid directions. Rule is made absolute, to the aforesaid extent.
31. It is further clarified that the statusquo which exists as on today, will continue to operate until the competent authority passes the final order in the matter.
(K.M.THAKER, J.) saj Page 27 of 27 HC-NIC Page 27 of 27 Created On Sun Aug 13 10:50:36 IST 2017