Gujarat High Court
Gomtiben Widow Of Bhakttibhai ... vs Deputy Secretary & on 1 February, 2013
Author: Sonia Gokani
Bench: Sonia Gokani
GOMTIBEN WIDOW OF BHAKTTIBHAI KHUSALBHAI BHAKT SINCE DECD....Petitioner(s)V/SDEPUTY SECRETARY C/SCA/8272/2000 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 8272 of 2000 With SPECIAL CIVIL APPLICATION NO. 8268 of 2000 ================================================================ GOMTIBEN WIDOW OF BHAKTTIBHAI KHUSALBHAI BHAKT SINCE DECD....Petitioner(s) Versus DEPUTY SECRETARY & 4....Respondent(s) ================================================================ Appearance: MR NV GANDHI, ADVOCATE for the Petitioner DELETED for the Respondent(s) No. 4 MR. JAIMIN GANDHI, AGP for the Respondent(s) No. 1 - 3 ================================================================ CORAM: HONOURABLE MS JUSTICE SONIA GOKANI Date : 01/02/2013 COMMON ORAL ORDER
1. These petitions under Articles 226 and 227 of the Constitution of India are preferred, challenging the orders dated 16.12.1999/9.3.2000 & 18.10.1999/06.01.2000 passed by the Deputy Secretary, Office of Special Secretary, Revenue Department in Revision Application Nos.14/81 and 15/81 under Section 211 of the Bombay Land Revenue Code, 1879.
2. The brief facts of the present petitions are as under:
2.1 One Shri Bhaktibhai Khusalbhai purchased a piece of land bearing Survey No.240, admeasuring 2.25 acres and Survey No.185, admeasuring 2 acres, situated at Village-Motibhamti, Taluka-Vansda, District:
Navsari pursuant to oral agreements with the predecessor-in-title and ancestor of Shri Limjibhai Thodia and Shri Deval Nagji Kukana. Possession was also obtained in the year 1960 itself.
2.2 The Government, vide its notification dated 04.04.1961 issued under Section 73-A of the Bombay Land Revenue Code, restricted transfer of certain lands and the said land appears to have been transferred to respondent no.5 by virtue of sale deeds executed on 12.12.1970 and 18.09.1972. It is contended that Shri Bhaktibhai continued in possession of the said land. The Deputy Mamlatdar, Vansda, on due inquiry, found violation of the provisions of Section 73-A of the Bombay Land Revenue Code and submitted its report to the Deputy Collector, Vansda to take action under Section 79-A and 202 of the Bombay Land Revenue Code for discontinuing the possession of the deceased-Bhaktibhai with further direction to hand over the same to the original owner. The Deputy Collector, Vansda by order dated 08.02.1978 directed the deceased to hand over the possession of the land to the original owner. Being aggrieved by the said order, the deceased preferred an appeal before the Collector who confirmed the said order, rejecting the appeal of the deceased.
2.3.
That further Revision Application under Section 211 of the Bombay Land Revenue Code was also preferred before the Special Secretary, Revenue Department, Ahmedabad. It also held the same fact as that of the Appeal. The petitioner herein has challenged the same in the present petitions on raising various grounds and urging to quash and set aside the orders of the Deputy Collector, Collector and that of Revisional Authority.
3. Learned advocate Mr. N.V. Gandhi appearing for the petitioner has urged that the case of the present petitioner is covered by the decision of this Court rendered in the case of Dhanabhai Bhikhabhai Vs. Rabubhai Narensinghbhai Naik & Ors. in Special Civil Application No.1191 of 1974.
He also urged that at Village Singhai in Vansda, the survey settlements were already effected way back in the year 1923 and subsequently, notification was issued under Section 73-A by the Deputy Collector. He further urged that, in adjudicating the identical issue, this Court has held that when survey settlements had already been effected, it was too late for the Government to hold that those survey settlements have been made under the Land Revenue Code. He also urged that the petitioner since is identically situated, the ratio of this authority should be made applicable to the case of the present petitioner. He seeks to rely upon the decision of this Court in the case of Ranjitsingh P. Vasava and Anr. Vs. Secretary, Revenue Department and Anr. reported in 2001 (1) GLH 229. The Court (Coram: Ms. R.M. Doshit, J) held the transfer legal and valid when the original survey settlements under the Bombay Land Revenue Code had already been introduced. The Court further held that the provisions of Section 73-A would not be applicable to the transfer under question. The Court had set aside the order of the Chief Secretary (Appeals) in this regard.
4. In response to the notice issued by this Court, no reply has been filed. However, learned AGP Mr. Gandhi has agreed that the order of this Court rendered in the case of Dhanabhai Bhikhabhai Vs. Rabubhai Narensinghbhai Naik & Ors (supra) has not been challenged before the Supreme Court. He also does not dispute that the issue is covered by the said judgment of Dhanabhai Bhikhabhai Vs. Rabubhai Narensinghbhai Naik & Ors (supra).
5. Upon hearing both the sides and on perusal of the record, this petitions deserve to be allowed for the following reasons:-
a) At the outset, relevant observations made in the case of Dhanabhai Bhikhabhai Vs. Rabubhai Narensinghbhai Naik & Ors (supra) shall need to be reproduced as under:-
3. The merger of the Vansada State admittedly took place on 10-6-48 and the Land Revenue Code and other Acts of the Bombay State had come to be made applicable to this merged territories with effect from 28-7-48.
Soon thereafter, a question had arisen as to whether the survey settlement of the merged territories should not be deemed to be the survey and settlement effected under the Land Revenue Code and the then Govt. of Bombay in its Revenue Department had issued a Notification No. R. D.1611-B/49 dated 6-2-52, recognising very lastly inter alia as follows:-
......
The survey settlements would however, remain unaffected and they must be deemed to have been effected under the Bombay Land Revenue Code. Application of Sec.73-A would not therefore be feasible where survey settlements have already been introduced.
Therefore, in the year 1961, the State of Gujarat came to issue the notification under Section 73A making the ban of the said sub-section applicable to the area of the merged territory of the State of Vansada and at that time the State of Gujarat issued a resolution dated 5-4-61 by way of clarification and it is quoted in the Collector s order as follows:-
The ban on transfers of the occupancies imposed under Govt. notification No. LND.3961.41504-G dated 4-4-61 will apply to all scheduled areas in which survey settlement under Chapter 8-A (which has been replaced by Sec.103) of the Land Revenue Code has not been introduced. In some of the scheduled areas integrated from ex-princely states like Rajpipla and Banasada a survey settlement was introduced during the ex. State s regime under the ex-States orders but this survey settlement is not deemed to have been done under Chapter 8-A of the Land Revenue Code, 1879 and therefore, true scope of the Land Revenue Code is not yet exhausted so far as such areas of sec.73-A are concerned and the ban imposed under Govt. notification No. LND-3961/41504-G dated 4-4-61 will apply to such areas also.
Mr. Naik as well as Mr. Takwani strongly relied upon this subsequent Government notification which is nine years younger than the Bombay Government s notification referred to herein above. The question is and the only question of importance that arises in this petition is whether those settlements of the erstwhile princely states can or cannot be deemed to have been effected under the corresponding provisions of the Land Revenue Code. If we turn to the Bombay Government s resolution dated 6-5-52 and also to the proviso to clause 5 of the Indian States ( Application of Laws) order 1948, it appears clear that the repeal by this order of any enactment shall not affect the validity, liability etc. already acquired accrued or incurred, under State Laws. It is also further clear that by virtue of this proviso, the survey settlements already effected in the merged states under the corresponding laws will be saved. It is too late in the day now for the State of Gujarat to say in the year 1961 that those survey settlements cannot be deemed to have been made under the Land Revenue Code.
5. The second contention which was pressed very heavily into service by Mr. Naik was the statement made by the officer of the Land Record Department at the time of inquiry to the effect that the said survey settlement of the Vansada State was ad hoc. To me it does not appear clear whether this statement is made by this witness on the basis of some record or not. However, I am prepared to go with Mr. Naik in holding that such a statement might have been there even in the record. To me it appears that this situation does not in any way improve the case of the respondents. As noted by me above, the survey seems to have been made in the Vansada State and settlement effected as back as in the year 1923 at any rate and the rates that are in vogue right from 1923 till this day cannot be said by any stretch of imagination ad hoc or temporary or by way of stopgap arrangement. If the record of the State bear such a word ad hoc it must have been employed there in the sense that it was not final and that it was liable to revision. It cannot be put that it was liable to revision. It cannot be put in contrast with the words original survey settlement . This is all that would be conceivably attributed to that solitary statement made by the officer of Land Revenue Department not on the basis of his personal information, but on what he might have derived from the record assumedly.
b) In the instant case, the question that needs to be answered is as to whether the notification issued by the Government under Section-73A of the Bombay Land Revenue Code would get attracted or not. From the details, as can be culled out from the petitions that the violation of the provisions of Section-73-A of the Bombay Land Revenue Code when was noticed by the Deputy Mamlatdar, on his report made to the Deputy Collector, an action under the Bombay Land Revenue Code had been taken for discontinuation of the possession along with a direction of handing over the possession to the original owner.
As held in the decision of Dhanabhai Bhikhabhai vs. Rabubhai Narensinghbhai Naik & Ors. (supra) by this Court, it is undisputed fact that survey settlement was effected in the year 1923 and, therefore, such survey settlement would hold field beyond the period of 1961. Applying the ratio laid down in the instant case where the facts are identical, orders dated 8.2.1978, 12.12.1980, 18.10.1999 and 16.12.1999 are hereby quashed and set aside. Petitions stand allowed, accordingly, with no order as to costs.
(MS SONIA GOKANI, J.) Chandrashekhar/Sudhir* Page 7 of 7