Gujarat High Court
Dhirendra Jivrajbhai Korat vs Deputy Collector on 29 June, 2018
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/16611/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 16611 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE J.B.PARDIWALA Sd/-
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1 Whether Reporters of Local Papers may be allowed to YES
see the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law NO
as to the interpretation of the Constitution of India or any
order made thereunder ?
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DHIRENDRA JIVRAJBHAI KORAT
Versus
DEPUTY COLLECTOR
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Appearance:
MR GM AMIN(124) for the PETITIONER(s) No. 1,2,3,4,5,6
DS AFF.NOT FILED (N)(11) for the RESPONDENT(s) No. 3
MR RAKESH PATEL, AGP (1) for the RESPONDENT(s) No. 1,6
NOTICE SERVED BY DS(5) for the RESPONDENT(s) No. 1,4,5,6
UNSERVED EXPIRED (N)(9) for the RESPONDENT(s) No. 2
UNSERVED REFUSED (N)(10) for the RESPONDENT(s) No. 3.1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 29/06/2018
ORAL JUDGMENT
By this application under Article 227 of the Constitution of India, the applicants call in question the legality and validity of the order dated 6th August 2013 passed by the Gujarat Revenue Page 1 of 17 C/SCA/16611/2013 JUDGMENT Tribunal in the Revision Application No.TEN/BR/2/13, by which the Revision Application filed by the applicants herein came to be rejected on the ground that the same was not maintainable before the Tribunal.
On 4th December 2013, while issuing notice, the following order was passed :
"Heard learned Counsel for the petitioners.
NOTICE returnable on 24th DECEMBER, 2013. Direct Service is permitted.
Status-quo qua the subject land be maintained by the concerned parties till final disposal of this petition, meaning thereby that there shall be no alienation of the subject land in any manner, without the permission of this Court."
The controversy giving rise to this application is in a very narrow compass. A parcel of land bearing Survey No.427 situated in the sim of village Bordi Samdiyada, Taluka Jetpur, District Rajkot, was originally owned by one Jaswantlal Chaprajwala. In the proceedings initiated under the Gujarat Agricultural Lands Ceiling Act, the land admeasuring 10-Acres out of Survey No.427 was declared to be in excess. It came to be forfeited in the State Government in accordance with the provisions of the Lands Ceiling Act. Out of 10-Acres of land declared to be excess, one Hirabhai Govindbhai Harijan claiming to be a landless labourer came to be allotted 3-Acres 10-Gunthas of land and one Babubhai Jivabhai Harijan was allotted 3-Acres 15-Gunthas of land by the order of the Deputy Page 2 of 17 C/SCA/16611/2013 JUDGMENT Collector, Gondal, passed under Section 29 of the Act. An entry No.1146 came to be mutated in the revenue records in this regard.
On 27th May 2002, Hirabhai Govindbhai Harijan preferred an application for converting the land from new tenure to old tenure. The land came to be converted to old tenure vide order passed by the Deputy Collector, Gondal, and an entry no.2570 came to be mutated in the revenue records.
It appears that Hirabhai Govindbhai Harijan transferred the land which was allotted to him under Section 29 of the Act in favour of one Priyavadan Jivrajbhai Korat for a total sale consideration of Rs.60,000=00 by way of a registered sale-deed. An entry bearing no.2610 came to be mutated in the record of rights in this regard. Later, the said land came to be transferred by Priyavadan Jivrajbhai Korat in favour of his wife Gitaben Priyavadan Korat. An entry bearing no.3160 came to be mutated in this regard in the record of rights on 22nd July 2008.
Babubhai Jivabhai Harijan who was allotted land under Section 29 of the Act passed away. In such circumstances, his legal heirs sought permission from the Collector for converting the land from new tenure to old tenure. It appears that on the land being converted to old tenure, the same was sold to Umeshbhai Jivrajbhai Korat by a registered sale-deed no.1379 dated 6th July 2002. An entry no.2611 came to be mutated in the record of rights in this regard. On 18th December 2008, the petitioner nos.1 and 2 herein purchased the land bearing Survey No.427/3/p by a registered sale-deed and an entry no.4497 came to be mutated in the revenue records. The Deputy Collector Page 3 of 17 C/SCA/16611/2013 JUDGMENT came to know about such transfer. By order dated 4th October 2011, the allotment which was originally granted in favour of Babubhai Jivabhai Harijan came to be cancelled under the provisions of Section 30 of the Act. The matter went before the Gujarat Revenue Tribunal. The Tribunal remanded the matter to the Deputy Collector for fresh hearing. The Deputy Collector, on remand, once again heard the respective parties and rejected the revision application vide order dated 22nd December 2012. The applicants herein once again preferred a revision application before the Gujarat Revenue Tribunal and the Tribunal took the view that the revision application is not maintainable and the remedy available with the applicants is to approach the Special Secretary, Revenue (Appeals).
In such circumstances, the applicants are here before this Court by way of this application under Article 227 of the Constitution of India.
The impugned order is quite short and the same is extracted hereunder :
"The applicant has filed the present Revision Application challenging the judgment dated: 22/12/2012 passed against him by the Deputy Collector, Gondal, in the Remand Case No.17/11 for breach of condition. By this Judgment, the Deputy Collector has ordered the land in question to be vested in the Government as the provisions of Section 30 of the Land Ceiling Act have been contravened because the Respondent Nos.1 and 3, i.e. the beneficiary to whom the Government had alloted the excess land under this Act, have sold the said land to the other Respondents.Page 4 of 17
C/SCA/16611/2013 JUDGMENT After hearing the arguments of the learned advocate for the parties and the Special Government Pleader and after examining the impugned judgment, it appears that a preliminary issue has been raised on behalf of the State that, this Tribunal has no jurisdiction to decide the legality of the impugned judgment. Therefore, if the preamble and objectives of the Land Ceiling Act and the provisions of Section 29, more particularly, Sections 29(3), 29(B) and Section 30 under Chapter-V of this Act and the provisions of Chapter-VI alongwith the facts of the present case and its impugned judgment are taken into consideration as to whether this Tribunal has jurisdiction to decide the legality of the impugned judgment or not, it will appear that this Tribunal has no jurisdiction to decide the legality and validity of the impugned judgment. It is necessary to note here that, if the landholder has excess land more than what is prescribed by the said Act, the competent officer shall declare it as excess land according to the procedure prescribed by the law and shall vest the same in the Government. Thus, this Tribunal has jurisdiction to decide the legality of the orders passed by the competent officer declaring the said land of the original landholder as excess land. Moreover, it is necessary to note that, the land being excess land under this Act, having been vested in the Government, the said land shall be alloted to the needy people according to the relevant provisions under the Land Revenue Code. Accordingly, after acquiring the excess land from the original landholder by the Government under the relevant provisions of the Agriculture Lands Ceiling Act and allotting the said land to the needy people, the rights and Page 5 of 17 C/SCA/16611/2013 JUDGMENT duties of the beneficiaries are regulated as per the conditions of the allotment order and the relevant provisions of the Land Revenue Code. Moreover, according to Section 29(3) of the said Act, an order of allotment of land under sub-sections (1) and (2), if made by a Revenue Officer, shall be subject to an appeal or revision as provided in Chapter XIII of the Bombay Land Revenue Code, 1879, as in force in the area within the jurisdiction of such officer and nothing in Chapter-VI of this Act shall apply to such order. It is necessary to note here that, looking to Chapter-VI of the said Act, it appears that after allotting the land, being surplus under this Act, to the beneficiaries, this Tribunal has no revisional jurisdiction against the orders affecting the rights and duties of the beneficiaries. But, for that, Section 29(3) of Chapter-V of the said Act is applicable. Thus, this Tribunal has no jurisdiction in the present Revision Application to decide the legality and validity of the impugned order. Therefore, the present Revision Application is liable to be rejected on this short issue. In such circumstances, it is not found proper to decide it on merits in the interest of justice. Hence, the following order is passed.
ORDER The present Revision Application is rejected on the point of jurisdiction."
Mr.Amin, the learned counsel appearing for the applicants, vehemently submitted that the Tribunal committed a serious error in taking the view that it had no jurisdiction to entertain the revision application arising from an order passed under the Page 6 of 17 C/SCA/16611/2013 JUDGMENT provisions of the Gujarat Agricultural Lands Ceiling Act. Mr.Amin submitted that the Tribunal committed a serious error in misinterpreting Section 29(3) of the Act while taking the view that it had no jurisdiction to decide the matter. According to Mr.Amin, it is only the Gujarat Revenue Tribunal which has the jurisdiction to hear the revision application and not the Special Secretary, Revenue (Appeals).
In such circumstances referred to above, Mr.Amin prays that the impugned order be quashed and the matter be remitted to the Tribunal for hearing of the revision application on merits.
On the other hand, this application has been vehemently opposed by Mr.Rakesh Patel, the learned AGP appearing for the State. According to Mr.Patel, the Tribunal committed no error in taking the view that it had no jurisdiction to entertain the revision application arising from an order passed under the provisions of the Lands Ceiling Act, 1960. Mr.Patel, the learned AGP, would submit, by placing reliance on the provisions of Section 29(3), that an order of allotment of land under sub- section (1) or (2), if made by a revenue officer, is subject to an appeal or revision as provided in Chapter XIII of the Bombay Land Revenue Code. According to the learned AGP, once the provisions of the Bombay Land Revenue Code are made applicable, then it is the SSRD which has the jurisdiction to look into the matter and not the Tribunal. In such circumstances referred to above, Mr.Patel prays that there being no merit in this application, the same may be rejected.
Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question Page 7 of 17 C/SCA/16611/2013 JUDGMENT that falls for my consideration is, whether the Tribunal committed any error in passing the impugned order.
Section 29 of the Lands Ceiling Act, 1960, is with regard to allotment of land vesting in Government. By virtue of the provisions of Section 29 of the Act, any land which has been declared excess in the proceedings under the Ceiling Act, 1960, can be allotted in accordance with Section 29 in favour of a cooperative farming society, agricultural labourers and landless persons or small holders, subject to terms and conditions. Once any such allotment is made in favour of any person under Section 29 of the Act, 1960, he cannot transfer such land in favour of any other person without the prior permission of the authority concerned.
Section 30 of the Act provides for the restriction on transfer or sub-division of land allotted under Section 29. Section 30 is reproduced herein below :
"30. Restriction on transfer or sub-division of land allotted under Section 29. - (1) Save as otherwise provided in sub- section (2) no land allotted under section 29 shall be--
(a) transferred whether by way of sale (including sale in execution of a decree of a civil suit or of an award or order of any other competent authority) or by way of gift, mortgage, exchange, lease or otherwise, or
(b) sub-divided (including sub-division by a decree or order of a Civil Court or any other competent authority) whether by Page 8 of 17 C/SCA/16611/2013 JUDGMENT partition or otherwise, without the previous sanction of the Collector. Such sanction shall not be given [except in such circumstances and on such conditions as hereinafter mentioned, namely :--
(i) In the case of land allotted to a co-operative society, the membership of which is held wholly or partly by persons belonging to a Scheduled Tribes or Scheduled Caste or of land allotted to a person belonging to a Scheduled Tribe or Scheduled Caste, if the transfer or sub-division thereof is in favour of a co-operative society of the same class or of a person belonging to a Scheduled Tribe or Scheduled Caste or of a person not belonging to a Scheduled Tribe or Scheduled Caste for want of a person belonging to a Scheduled Tribe or Scheduled Caste.
(ii) In the case of land allotted to any co-operative society or person other than a co-operative society or person referred to in clause (i),--
(a) the transfer or sub-division is in favour of an agriculturist who holds land less in area than the ceiling area, an agricultural labourer or a landless person,
(b) the transfer or sub-division is in favour of a person not being a person referred to in clause
(i), who bona fide requires the land for a non agricultural purpose, Page 9 of 17 C/SCA/16611/2013 JUDGMENT
(c) the land is required for benefit of an industrial or commercial undertaking of an educational or charitable institution,
(d) the land is required by a Co-operative farming society,
(e) the land is being sold in execution of a decree of a Civil Court or for the recovery of arrears of land revenue or of any sums recoverable as arrears of land revenue, or
(f) the land is being given in gift whether by way of trust or otherwise and such gift is made bona fide by the holder in favour of a member of his family.
(iii) The person who obtains land by transfer or sub-
division in accordance with the provisions of this sub- section shall commence the use of the land for the purpose for which he obtained land, within a period of one year from the date on which he takes possession of the land or within such further period not exceeding five years in the aggregate as the Collector for reasons to be recorded in writing may from time to time fix.
(iv) If the person fails to comply with the condition specified in clause (iii), the sanction given under this Page 10 of 17 C/SCA/16611/2013 JUDGMENT sub-section shall stand cancelled and the transfer or as the case may be, the sub-Division of the land in favour of the person shall for the purposes of sub- section (4) be deemed to be in contravention of this sub-section].
(2) Notwithstanding anything contained in sub-section (1), it shall be lawful for a person to mortgage or create a charge on his interest in the land allotted to him under section 29 in favour of the State Government in consideration of a loan advanced to him by the State Government under the Land Improvement Loans Act, 1883, the Agriculturists' Loans Act, 1884 or the Bombay Non-Agriculturists' Loans Act, 1928, or in favour of a co-operative society [or in favour of a land development bank or the State Bank of India constituted under the State Bank of India Act, 1955 or a subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959, or a bank specified in column 2 of the First Schedule to the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970] in consideration of a loan advanced to him by such co-operative society [or by any such bank], and without prejudice to any other remedy open to the [State Government, the co-operative society, or as the case may be, the bank], in the event of his making default in payment of such loan in accordance with the terms on which such loan was granted, it shall be lawful for the [State Government, the co-operative society, or as the case may be, the bank], to cause his interest in the land to be attached and sold and the proceeds to be applied in payment of such loan.
Page 11 of 17 C/SCA/16611/2013 JUDGMENT
(3) Any subsequent transfer or sub-division of land
transferred or sub-divided in accordance with sub-section (1), shall also be subject to the provisions of sub-section (1).
(4) Any transfer or sub-division of land in contravention of sub-section (1) or (3) and the acquisition of such land under such transfer or sub-division shall be invalid and the land shall stand forfeited to the State Government."
Section 30(4) referred to above makes it very clear that any transfer or sub-division of land in contravention of sub-section (1) or (3) and the acquisition of such land under such transfer or sub-division shall be invalid and the land would stand forfeited to the State Government.
Let me now look into Section 38 of the Act, 1960. Section 38 is with regard to the revisional jurisdiction of the Gujarat Revenue Tribunal. Section 38 is reproduced hereinbelow :
"38. Revisional jurisdiction of Gujarat Revenue Tribunal. - Notwithstanding anything contained in the Bombay Revenue Tribunal Act, 1957, an application for revision may be made to the Gujarat Revenue Tribunal constituted under the said Act against any order of the Collector on the following grounds only--:
(a) that the order of the Collector was contrary to law ;
(b) that the Collector failed to determine some material issue of law; or Page 12 of 17 C/SCA/16611/2013 JUDGMENT
(c) that there was a substantial defect in following the procedure provided by this Act, which has resulted in the miscarriage of justice.
(2) In deciding applications under this section the Gujarat Revenue Tribunal shall follow the procedure which has been prescribed by rules and regulations made under the Bombay Revenue Tribunal Act, 1957."
Thus, it is clear that Section 38 starts with a non-obstante clause, i.e. notwithstanding anything contained in the Bombay Revenue Tribunal Act, 1957. In my view, once an order is passed by the Deputy Collector under Section 30 of the Act, 1960, any person aggrieved by such order can prefer a revision application before the Gujarat Revenue Tribunal under Section 38 of the Act, 1960 At this stage, let me look into Section 9 of the Bombay Revenue Tribunal Act. Section 9 reads as under :
"9. Jurisdiction of Tribunal. - (1) Subject to the provisions of this section, the Tribunal shall have jurisdiction to entertain and decide appeals from and revise decisions and orders of officers, not below the rank of a Collector or Deputy Commissioner, in respect of cases arising under the provisions of the enactments specified in the First Schedule.
(2) Save as expressly provided in any enactment for the time being in force, the State Government may, by notification in Page 13 of 17 C/SCA/16611/2013 JUDGMENT the Official Gazette, direct that the Tribunal shall also have jurisdiction to entertain and decide appeals from, and receive decisions and orders of, such persons, officers and authorities in such other cases as the State Government may determine; and for that purpose the State Government may, by notification in the Official Gazette, add to, amend or omit, any of the entries in the First Schedule, and thereupon the Tribunal shall have jurisdiction in such matter and the jurisdiction of any other persons, officer or authority therein shall cease.
(3) The State Government may, at any time, in like manner, cancel such notification or omit any entry from the First Schedule and resume to itself such jurisdiction: Provided that nothing herein shall prevent the State Government after such resumption of jurisdiction from conferring any such jurisdiction on any other person, officer or authority.
(4) Notwithstanding anything contained in any other law for the time being in force, when the Tribunal has jurisdiction to entertain and decide appeals from and revise decisions and orders of any person, officer or authority in any matter aforesaid, no other person, officer or authority shall have jurisdiction to entertain and decide appeals from and revise decisions or orders of such person, officer or authority in that matter.
The First Schedule to Section 9 of the Act, 1957, reads as under:
Page 14 of 17 C/SCA/16611/2013 JUDGMENT
FIRST SCHEDULE
(See Section 9)
Name of enactment Appellate or revisional
jurisdiction against orders
or decisions in cases
arising under the following
provisions
1 2
1 The Bombay Land Section 37 sub-section (2).
Revenue Code, 1879 Section 39A.
(Bombay V of 1879). Section 43.
Section 46.
Section 47.
Section 51.
Section 61.
Section 79A, except clause
(b) thereof.
2 The Bombay Land Section 37, sub-section (2)
Revenue Code, 1879 Section 39A.
(Bombay V of 1879), as Section 43.
extended to the Kutch Section 46.
area of the State of Section 47.
Bombay. Section 51.
Section 61.
Section 79A, except clause
(b) thereof.
3 The Bombay Land Section 37, Sub-section (2),
Revenue Code, 1879 Section 39A.
(Bombay V of 1879), as Section 43.
adapted and applied to Section 46.
the Saurastra area of the Section 47.
State of Bombay. Section 51.
Section 61.
Section 79A, except clause
(b) thereof.
Page 15 of 17
C/SCA/16611/2013 JUDGMENT
9 The Indian Forest Act, Section 11.
1927 Section 12.
Section 15.
(XVI of 1927) Section 16.
10 The Indian Forest Act, Section 11.
1927 Section 12.
Section 15.
(XVI of 1927), as Section 16.
adapted and applied to
the Saurashtra area or
the State of Bombay.
Although there is no reference of Act, 1960, in the column of name of enactment, yet I am of the view that having regard to the non-obstante clause in Section 38, the Tribunal has the jurisdiction to entertain the revision application filed against an order passed by the Deputy Collector under Section 30 of the Act, 1960.
Section 29(3) of the Act, 1960, which is relied upon by the learned AGP is reproduced herein below :
"An order of allotment of land under sub-section (1) or (2) if made by a Revenue Officer shall be subject to an appeal or revision as provided in Chapter XIII of the Bombay Land Revenue Code, 1879 (Bom.V of 1879) as in force in the area within the jurisdiction of such officer and nothing in Chapter VI of this Act shall apply to such order."
In my view, the correct interpretation of Section 29(3) of the Act, 1960, would be that once the allotment of land is made under sub-section (1) or (2) of Section 29 of the Act, 1960, Page 16 of 17 C/SCA/16611/2013 JUDGMENT thereafter, for the purposes of payment of revenue etc., the provisions of the Bombay Land Revenue Code, 1879 would apply. This provision should not be interpreted to mean that as the provisions of the Bombay Land Revenue Code are made applicable upon allotment of land, thereafter, if any proceedings are initiated and any order is passed under the Act, 1960, then it is only the SSRD who has the jurisdiction. The provisions of the Bombay Land Revenue Code are made applicable only after the allotment of land for the purposes of payment of revenue etc. I am of the view that if an order is passed under the provisions of the Act, 1960 itself, and when the Act provides for a revision before the Gujarat Revenue Tribunal, then the Tribunal is vested with the jurisdiction to decide such a revision application.
In view of the above, the impugned order passed by the Gujarat Revenue Tribunal is hereby quashed and set-aside and the matter is remitted to the Gujarat Revenue Tribunal.
The Gujarat Revenue Tribunal shall hear the revision application No. T.E.N./B.R./2/13 and decide the same on its own merits in accordance with law.
With the above, this application is disposed of. The order of status quo with respect to the subject land passed by this Court dated 4th December 2013 and which has continued till this date shall continue till the final disposal of the revision application before the Tribunal.
(J.B.PARDIWALA, J.) /MOINUDDIN Page 17 of 17