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Gujarat High Court

Batukbhai Gopalbhai Patel vs Ravjibhai Bhangad Ukabhai Rathod on 7 May, 2021

Author: Bhargav D. Karia

Bench: Bhargav D. Karia

       C/SCA/17644/2017                                        CAV JUDGMENT



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 17644 of 2017

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE BHARGAV D. KARIA
================================================================

1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of the
      judgment ?

4     Whether this case involves a substantial question of law
      as to the interpretation of the Constitution of India or any
      order made thereunder ?

===============================================================
               BATUKBHAI GOPALBHAI PATEL & 3 other(s)
                              Versus
           RAVJIBHAI BHANGAD UKABHAI RATHOD & 11 other(s)
===============================================================
Appearance:
MR. MEHUL SHAH SR. ADVOCATE WITH MR MANAN A
SHAH(5412) for the Petitioner
Nos. 1, 2, 3, 4
MR. K.M. ANTANI, AGP (1) for the Respondent No.7
MR RM PARMAR(591) for the Respondent Nos.
1,2,3,4,5
MR. NISHIT P GANDHI(6946) for the Respondent Nos.
11,12
NOTICE SERVED BY DS(5) for the Respondent Nos.
10,6,8,9
================================================================
    CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                               Date : 07/05/2021

                                CAV JUDGMENT

Heard learned Senior Advocate Mr. Mehul Shah assisted by learned advocate Mr. Manan A. Shah Page 1 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT for the petitioners, learned advocate Mr. R.M. Parmar for the respondent nos.1 to 5, learned advocate Mr. Nishit P. Gandhi for the respondent nos.11 and 12 and learned AGP Mr. K.M. Antani for the respondent - State through video conference.

1. Rule, returnable forthwith. Learned advocates for the respective respondents waives service of notice of rule.

2. By this petition, under Articles 226 and 227 of the Constitution of India, the petitioners have challenged the order dated 31st July, 2017 passed by the Special Secretary Revenue Department (Appeals) (for short 'the SSRD') in Revision Application No.8 of 2016 whereby, the order dated 03.07.2016 passed by the Deputy Collector was set aside by which the application under Section 73AA of the Gujarat Land Revenue Code, 1879 (for short 'the Code, 1879') filed by the respondent Nos.1 to 5 was rejected. The SSRD also cancelled the NA permission order dated 27.08.2015 qua land bearing block nos.252, 253, 254, 255, 259, 260 which was consolidated in block no.252 situated at Village: Ishanpor, Taluka: Olpad, District: Surat.

3. The short facts of the case are that the petitioners had initially purchased the block Page 2 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT nos.252, 253, 254 255, 259, 260, 262, 263 and 264 by different sale deeds from different original owners and subsequently, the registered sale deeds were executed in favour of respondent Nos.11 and 12 and in turn the said land was transferred in name of the petitioner No.4 by registered sale deeds. An application was made for granting development permission by the petitioners and by separate order such permission was granted for separate block numbers in the year 2014 by the Town Planning Officer, Surat. In the development permission, it was specifically mentioned that road of 12 Mtrs is to be derived from northern side for ingress and egress and as per the actual location of the area, block no.237 falls under northern side of the non agricultural land of the petitioners ad­measuring 5883 Sq.Mtrs.

4. It appears that thereafter, an application was made for consolidation of all the blocks in block no.252 which was granted by order dated 2.7.2015 passed by the Mamlatdar, Olpad, District, Surat. Pursuant to the development permission, the NA permission was granted by order dated 27.08.2015. The petitioners thereafter carried out the development on the consolidated block no.252 by constructing 390 residential units in the name of "Royal Park" out Page 3 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT of which 234 units were sold to the third party purchasers and all the occupants are using the road passing through block no.237 since 20 to 25 years continuously.

5. It appears that the respondent Nos.1 to 5

were owners of the land of survey no.139/1, block no.237 situated at village: Ishanpor, Taluka:

Olpad, District: Surat which is restricted tenure land under Section 73AA of the Code, 1879. The respondent No.1 executed a notarized power of attorney on 07.12.2007 in favour of the respondent No.6. The land owners of block nos.68, 238, 236, 237 and 253 have executed inter­say agreement of easementary rights without any consideration for using the road from Olpad­Sayan main road passing through the said blocks which was being used as roads since before Section 73AA came into force in the year 1980.
6. The respondent Nos.1 to 5 thereafter filed proceedings under Section 73AA of the Code, 1879 in respect of the agreement of easement with the petitioners before the Deputy Collector, Surat.

The Deputy Collector after holding inquiry passed an order dated 03.07.2016 holding that there is no breach of Section 73AA of the Code, 1879 as the NA permission was granted and while granting NA permission, condition was imposed to use the Page 4 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT 12 Mtrs road from the subject land on the basis of agreement for the easementary rights executed by the respondent no.1 through his power of attorney holder in favour of the petitioner Nos.1 to 6. The order passed by the Deputy Collector was amended on 20th July, 2016 to delete the name of one Ambubhai Ichchhubhai Patel as it was wrongly mentioned in the order dated 3rd July, 2016.

7. The respondent No.1 to 5 being aggrieved by the order dated 3rd July, 2016 preferred Special Civil Application No.18185 of 2016 before this Court which was disposed of vide order dated 21.10.2016 in view of the alternative remedy available by preferring the Revision Application before the District Collector. However, the respondent Nos.1 to 5 directly filed revision application No.8 of 2016 before the SSRD instead of availing alternative remedy before the District Collector.

8. It appears that the Taluka Development Officer also filed Revision Application No.3 of 2016 before the SSRD seeking cancellation of the NA permission. The SSRD by the impugned order dated 31.07.2017 allowed the Revision Application No.3 of 2016 filed by the Taluka Development Officer and cancelled the NA permission dated Page 5 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT 06.09.2014 granted in favour of the petitioner in respect of block no.253 and by separate order of the same date allowed the Revision Application No.8 of 2016 filed by the respondent No.1 and other co­owners of block no.237 and set aside the order dated 03.07.2016 passed by the Deputy Collector.

9. The learned senior advocate Mr. Mehul Shah assisted by learned advocate Mr. Manan Shah submitted that the SSRD has committed an error in allowing the revision application on wrong premise that there is a breach of Section 73AA of the Code, 1879 in view of the road passing through survey no.237 being used by the petitioners as no previous permission is taken by the petitioners for using such road. It was submitted that there is no transfer of occupancy rights as envisaged under Section 73AA of the Code, 1879 in favour of the petitioners. The learned senior advocate Mr.Shah submitted that there were agreements of easementary rights executed in favour of the petitioners by various land owners and as such, there is no transfer of occupancy rights as held by the SSRD. It was submitted that the Deputy Collector, Olpad has taken into consideration the easement agreements and the NA permission granted in favor of the petitioners to come to the conclusion that there Page 6 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT is no breach of provision of Section 73AA of the Code, 1879.

10. Learned senior advocate Mr.Shah in support of his submissions relied upon the following decisions to point out that the easementary right does not confer any title in favour of the petitioner so as to invoke the provision of Section 73AA of the Code, 1879. Reliance was placed on the following judgments :

1. Shyam Sunder Sharma And Another Versus Ganga Prasad And Others reported in 1948 SCC OnLine All 281.
2. C.Mohammed Versus Ananthachiari reported in 1987 SCC OnLine Ker 118.
3. Traders and Miners, Ltd. Versus Dhirendra Nath Banerjee reported in 1943 SCC OnLine Pat
149.
4. Mahadeo and Others Versus State of Bombay and Others reported in 1959 Supp (2) SCR 339.
5. Hamir Ram Versus Varisng Raimal reported in 1998 (2) GLR 1493.
6. Annapurnaben Mahendrakumar Gorthro Poa Yogeshkumar Versus Vishnubhai Shivlal Nagar & 7 Ors reported in 2014 2 GLR 1270.
7 State of Gujarat Versus Hiralal Motilal Luhar reported in 1980 (1) GLR 728.
8. State of Gujarat Versus Gangaben Polabhai Page 7 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT reported in 2007 (2) GLR 921.

11. Reliance was also placed on the nature and characteristics of the easements defined in the Halsbury.

12. On the other hand learned advocate Mr. Parmar for the respondent Nos.1 to 5 submitted that the land situated at block No.237 is a joint ownership land and no power of attorney is given to anyone by respondent Nos.1 to 5 but Mr. Vikram Punjabhai Bakhalkiya and Ramesh Ravjibhai Dobariya by undue advantage of respondent No.1 Ravjibhai Bhangad Ukabhai Rathod, got the power of attorney executed on 7.12.2007 and thereby, the land of the respondent Nos.1 to 5 who were poor persons have been used for road without there being any sanction of the Collector under Section 73AA of the Code, 1879.

13. It was further submitted that the petitioners have duped the respondent Nos.1 to 5 by giving assurance of permitting to use the road constructed by them on their land and also assurance was given for house as well as money for regularization. It was submitted that the petitioners are using the land of block no.237 as a road without obtaining any kind of prior permission only on the pretext of easementary Page 8 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT rights. It was submitted that there is no question of any easementary rights and hence, the SSRD has rightly allowed the revision application of respondent Nos.1 to 5 in view of the breach of the provision of Section 73AA of the Code, 1879. It was submitted that the petitioners without any consideration have usurped the land of the respondent Nos.1 to 5 by constructing 60 feet wide road passing from block no.237. It was submitted that even wire fencing was made along the road, drainage line is laid down and thereby, the respondent Nos.1 to 5 are being harassed.

14. Having heard the learned advocates for the respective parties and having gone through the materials on record it is not in dispute that no occupancy rights are transferred in favour of the petitioners and as such, the provision of Section 73AA cannot be said to apply in the facts of the case. Section 73AA of the Code, 1879 reads as under :

"73AA. (1) Notwithstanding anything contained in section 73, an occupancy of a person belonging to any of the Schedule Tribes (hereafter in this section and in section 73AB referred to as "(the tribal)" shall not be transferred to any person without the previous sanction of the Collector.
(2) The previous sanction of the Collector under sub­section (1) may be given in such circumstances and subject to such conditions as may be prescribed.
(3) (a) Where tribal transfers the possession of his occupancy to another tribal in contravention of sub­section (1), the tribal transferor or his successor in interest may, within two Page 9 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT years of such transfer, apply to the collector that the possession of such occupancy may be restored to him and there upon the Collector shall, after issuing a notice to the transferee or his successor in interest, as the case may be, in the prescribed form to show cause why he should not be disentitled to retain possession of the occupancy and after holding such inquiry as he deems fit, declare that the transferee or his successor in interest shall not be entitled to retain possession of the occupancy and that the occupancy shall be restored to the tribal transferor or his successor in interest, as the case may be, on the same terms and conditions on which the transferor held it immediately before the transfer and subject to his acceptance of the liability for payment of arrears of land revenue in respect of such occupancy in accordance with the rules made by the State Government and that the transferee or his successor in interest as the case may be, shall be deemed to be unauthoriselly occupying the occupancy :
Provided that such declaration shall stand revoked if the tribal transferor, or, as the case may be, his successor in interest fails or refuses in writing to accept the restoration of the possession of such occupancy within the prescribed period.
(b) Where--
(i) a tribal in contravention of sub­section (1) of section 73A 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, and
(ii) the tribal transferee or his successor in interest has not been evicted from such occupancy under section 79A, the transfer of occupancy shall be valid, as if it were made with the previous sanction of the Collector under section 73A.
(4) Where a tribal--
(a) in contravention of sub­section (1) of this section, or of sub­section (1) of section 73A or of any other law for the time being in force, transfers his occupancy to any person other than a tribal (hereafter in this section and in section 73AB referred to as "the non­tribal") at any time on or after the date of commencement of the Bombay Land Revenue (Gujarat Second Amendment) Act, 1980 (hereinafter in this section referred to as "the said date"); or
(b) in contravention of sub­section (1) of section 73A or of any other law for the time being in force has transferred his Page 10 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT occupancy to a non­tribal at any time before the said date, the Collector shall, nothwithstanding anything contained in any law for the time being in force, either suo motu at any time, or on a application made by the tribal transferor or his successor in interest at any time within three years from the said date or the date of such transfer, whichever is later, after issuing a notice to the transferee or his successor in interest as the case may be, to show cause why the transfer should not be declared void and after making such inquiry as he thinks fit, declare the transfer of such occupancy to be void and thereupon the occupancy together with the standing crops thereon, if any, shall vest in the State Government free from all encumbrances.
(5) Where an occupancy if vested in the State Government under sub­section (4) and such occupancy was assessed or held for the purposes of agriculture immediately before its transfer by the tribal transferor, the Collector shall, after taking necessary action under sections 79A and 202, give notice to the tribal transferor or his successor in interest, as the case may be, requiring him to state in writing within ninety days from the date of receipt of such notice whether he is willing to purchase the occupancy and cultivate in personally, and if such tribal transferor or his successor in­interest agreees to purchase the occupancy and undertakes to cultivate it personally, it may be granted to him on payment of the prescribed occupancy price.
(6) If within the said period of ninety days the transferor or his successor in interest does not intimate his willingness to purchase the occupancy and to cultivate it personally, or fails to pay the occupancy price within such period as may be specified by the Collector, the occupancy shall be granted to any other tribal residing in the same village or in any other village situated within such distance from the village as may be prescribed, on the same conditions, including the payment of the occupancy price, as are specified in sub­section (5), and if he is not so willing, it shall be granted to other classes of persons in such order or priority at such occupancy price and subject to such conditions as may be prescribed.
(7) Where any occupancy is transferred to a non­tribal in contravention of sub­section (1) such non­tribal shall, without prejudice to any other liability to which he may be subject, be liable to pay to the State Government, a penalty not exceeding three times the value of the occupancy such penalty and value to be determined by the Collector, and such determination shall be, final:
Provided that before levying any such penalty, the non­ tribal shall be given a reasonable opportunity of being heard.
(8) The penalty payable under sub­section (7) shall, if it is Page 11 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT not paid within the time specified by the Collector, be recoverable as an arrear of land revenue."

15. On a plain reading of Section 73AA of the Code, 1879 which is a complete Code by itself it is clear that member of a Schedule Tribe cannot transfer his occupancy to any person without previous sanction of the Collector as stipulated by Sub­section 1 of Section 73AA of the Code, 1879. In the facts of the case there is no transfer of any occupancy by the respondent Nos.1 to 5 in favour of the petitioners. The petitioners are having easementary right pursuant to the easement agreements executed in favour of the petitioners to use the land of block no.237 and other blocks of the land as a road to reach to the block no.252.

16. The nature and characteristics of easements as per the Halsbury is as under :

"1. Meaning of "easement". An easement is a right annexed to land to utilise other land of different ownership in a particular manner (not involving the taking of any part of the nature produce of that land or of any part of its soil) or to prevent the owner of the other land from utilising his land in a particular manner.
2. Meaning of "dominant tenement" and "servient tenement". The piece of land in respect of which an easement is enjoyed is called "the dominant tenement", and that over which the right is exercised is called "the servient tenement"; and expressions "dominant owner" and "servient owner" bear corresponding meanings.
3. Meaning of "servitude". An easement is a servitude, but "servitude" is a wider term and includes both easements and profits a prendre.
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4. Incorporeal rights. An easement, although for long ordinarily described as an incorporeal right, has been said not to be in strictness an incorporeal hereditamen as an easement does not descend apart from the ownership of the land constituting the dominant tenement to which it is annexed.
5. Meaning of "legal easement". Since 1926 the only easements capable of subsisting at law are easements for an interest equivalent to an estate in fee simple absolute in possession or a term of years absolute. A legal easement capable of subsisting at law which does not take effect as a legal easement takes effect as an equitable interest and is called an equitable easement.
6. Meaning of "equitable easement". In the strict statutory meaning of the term an equitable easement is a proprietary interest in land such as would before 1926 have been recognised as capable of being conveyed or created at law, but which since 1926 takes effect only as an equitable interest. The class of equitable easements certainly includes those easements which, if created in the same manner before 1926, would have taken effect as legal easement, but which by virtue of the Law of Property Act 1925 are no longer capable of subsisting at law and thus take effect as equitable interests. It is far from certain whether the class of equitable easements extends beyound this limited category. The term "equitable easement" is also loosely but incorrectly applied to various other equitable rights over land which are not easements within the strict statutory meaning of the term.
7. Essential characteristics of an easement. The essential characteristics of an easement are (1) there must be a dominant and a servient tenement; (2) the easement must accommodate the dominant tenenment; (3) the dominant and servient owners must be different persons; and (4) the easement must be capable of forming the subject matter of a grant.
8. Dominant and servient tenements. It is an essential characteristic of every easement that there is both a servient and a dominant tenement. The easement must be appurtenant to the dominant tenement."

17. In case of Shyam Sunder Sharma (Supra) it was held that the person who is in the enjoyment of an easement, but who has not acquired a title to it by prescription, can maintain an action to prevent its obstruction by any person other than the owner of the servient tenement provided such obstruction caused substantial inquiry to the Page 13 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT enjoyment of such easement. In the facts of the case the petitioners are in the enjoyment of the easement without any title and therefore, the respondents could not have taken any action to prevent the enjoyment of such easement.

18. In case of C. Mohammed (Supra) it was held by the Kerala High Court as under :

"2. The Courts below held that there cannot be any easement by prescription as the plaintiff admitted that the disputed property belongs to him. The only question to be considered is as to whether a plea of ownership and a plea of easement can be advanced alternatively in a suit. Ownership and easement right are inconsistent and cannot co­exist in the same person. Section 4 of the Easements Act defines 'Easement' as follows :
"An easement is a right which the owner or occupier of certain land possesses, as such, for the beneficial enjoyment of that land, to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, certain other land not his own."

An easement is a privilege, without profit, which the owner of one tenement has a right to enjoy in respect of that tenement in or over the tenement of another person, by reason whereof the latter is obliged to suffer or refrain from doing something on his own tenement for the advantage of the former. The following six characteristics are essential lo an easement : ­­ (1) There must be a dominant and servient tenement:

(2) An easement must accommodate the dominant tenement; (3) The right of easement must be possessed for the beneficial enjoyment of the dominant tenement;
(4) Dominant and servient owners must he different persons:
(5) The right should entitle the dominant owner to do and continue to do something, or to prevent and continue to prevent something being done, in or upon, or in respect of, the servient tenement; and (6) The something must be of a certain or well defined character and be capable of forming the subject matter of a grant.

As existence of both a dominant tenement and servient tenement is essential to the creation and existence of an easement it is difficult to conceive of a position where a person can claim easement by prescription when he owns both the Page 14 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT tenements. It may be permissible in the plaint to advance an inconsistent plea of ownership and easement alternatively, but it is necessary that the plaintiff should press one of them only either at the stage of evidence or a subsequent stage. When the dominant and servient tenement are in the ownership and possession of the same person acts done by him on the servient tenement are clearly referable to his possession of that tenement and hence there cannot be any easement by prescription."

19. In case of Mahadeo (Supra) the Apex Court with regard to the right of the appellant in respect of taking forest produce mainly Tendu leaves from the forest included in zamindari and malguzari villages of the grantors held as under:

"14. The question that arises is, what is the nature of this right ? In English law, distinction was made between easements and profit a prendre and a right to take the produce of the soil was regarded as a profit a prendre. While easements were not regarded as an interest in land, a right to take the produce of the soil or a portion of it was an interest in land : Fitzgerald v. Fairbanks ( 1897 (2) Ch 96 .). Profit­a­prendre can be the subject of a grant. Where they take the form of a grant, they are benefits arising from land. In all these cases, there is not a naked right to take the leaves of Tendu trees together with a right of ingress and of regress from the land; there are further benefits including the right to occupy the land, to erect buildings and to take other forest produce not necessarily standing timber, growing crop or grass. The right of ingress and of regress over land vesting in the State can only be exercised if the State as the owner of the land allows it, and even apart from the essential nature of the transaction, the State can prohibit it as the owner of the land.
15. Whether the right to the leaves can be regarded as a right to a growing crop has, however, to be examined with reference to all the terms of the documents and all the rights conveyed thereunder. If the right conveyed comprises more than the leaves of the trees, it may not be correct to refer to it as being in respect of 'growing crop' simpliciter.
16. We are not concerned with the subtle distinctions made in English law between emblements, fructus naturals and fructus industrial, but we have to consider whether the transaction concerns "goods" or "movable property" or "immovable property".

The law is made difficult by the definitions which exist in the General Clauses Act, the Sale of Goods Act, the Transfer of Property Act and the Registration Act. These definitions must be placed alongside one another to get their ambits.

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17. If the definitions are viewed together, it is plain that they do not tell us what "immovable property" is. They only tell us what is either included or not included therein. One thing is clear, however, that things rooted in the earth as in the case of trees and shrubs, are immovable property both within the General Clauses Act and the Transfer of Property Act, but in the latter, "standing timber", "growing crop" and "grass" though rooted in earth are not included. Of these, "growing crop" and "grass" form the subject­matter of the sale of goods, and "standing timber"

comes within the last part of the definition of 'goods' in the Indian Sale of Goods Act, to be subject thereto if the condition about severing mentioned in the definition of 'goods' exists.

18. It has already been pointed out that the agreements conveyed more than the tendu leaves to the petitioners. They conveyed other forest produce like timber, bamboos, etc., the soil for making bricks, the right to prune, coppice and burn tendu trees and the right to build on and occupy land for the purpose of their business. These rights were spread over many years, and were not so simple as buying leaves, so to speak, in a shop. The expression "growing crop" might appropriately comprehend tendu leaves, but would not include, 'Adjat timber', bamboos, nor even tendu plants. The petitioners were not to get leaves from the extant trees but also such trees as might grow in the future. They could even burn the old trees, presumably, so that others might grow in their place. In these circumstances, the agreements cannot be said to be contracts of sale of 'goods' simpliciter.

19. It remains now to consider whether the rights enjoyed by the petitioners can be said to fall within s. 3(1) of the Act. That section divests the proprietors of their proprietary rights, as also any other person having an interest in the proprietary right through the proprietor and vests those rights in the State. That section has to be read with the section which follows, and which sets out the consequences of vesting of such rights in the State. The rights which vest can be stated briefly to be (a) all proprietary rights in the proprietor, and (b) all proprietary rights in any person having interest in such proprietary rights through the proprietor. These rights vest in the State free of all encumbrances.

20. Section 4 of the Act provides inter alia that after the notification has been issued, then, 'notwithstanding anything contained in any contract, grant or document or in any other law for the time being in force and save as otherwise provided in this Act' ­ the following consequences (among others) shall ensue :

"(a) all rights, title and interest vesting in the proprietor or any person having interest in such proprietary right through the proprietor in such area including Land (cultivable or barren), grassland, scrubjungle, forest, trees, fisheries, wells, tanks, ponds, water­channels, ferries, pathways, village sites, hats, Page 16 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT bazars and melas; and in all subsoil, including rights, if any, in mines and minerals, whether being worked or not, shall cease and be vested in the State for purposes of the State free of all encumbrances; and the mortgage debt or charge on any proprietary right shall be a charge on the amount of compensation payable for such proprietary right to the proprietor under the provisions of this Act;
(b) all grants and confirmation of title of or to land in the property so vesting or of or to any right or privilege in respect of such property or land revenue in respect thereof shall, whether liable to resumption or not, determine :".

21. If these petitioners can be said to be possessing "an interest in the proprietary right", then their rights, title and interest in the land determine under the Act, and vest in the State. The petitioners, therefore, contend that their rights under the agreements cannot be described as 'proprietary right' or even a share of it. They rely on the definition of 'proprietor' in the Act, and refer under the authority of s. 2(b) of the Act to the Central Provinces Land Revenue Act, 1917.

22. The definition in the Act is not exhaustive. It only tells us who, besides the proprietor, is included in the term 'proprietor'. Further, the definitions in the Act are subordinate to the requirements of the context and the subject­matter of any particular enactment. From the Act, we know that the proprietor's interest in forest, trees, shrub, grass and the like passes to the State. The question thus resolves into two short ones ­ did the former proprietors own proprietary interest in these trees, and did they part with that proprietary interest and convey it to the petitioners ?

23. There is but little doubt that in so far as the Act is concerned, it does contemplate cesser of all proprietary rights in land, grass land, scrub jungle, forest and trees, whether owned by the proprietor or through him by some other person. The contention of the petitioners is that by the term "proprietor" is meant what that term conveys in the Central Provinces Land Revenue Act, and reference is made for this purpose to various sections therein. The term "proprietor" is defined in the Central Provinces Land Revenue Act thus :

"Proprietor" except in sections 68, 93 and 94, includes a gaontia of a Government village in Sambalpur Territory."

This definition does not advance the matter any further. In several sections, special explanations are added to define "proprietors". In all those explanations, the term is not defined, but is said to include 'thekedars or headmen with protected status', 'mortgagee with possession', 'lessees holding under leases from year to year' and the like. In addition, there is invariably the inclusion of 'a transferee of proprietary rights in possession', which again leaves the matter at large. See ss. 2(5), 2(21), 53 and 68."

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20. In case of Patel Punjabhai Jethabhai Versus State of Gujarat reported in 2006(1) GLR 199 with regard to the provisions of Section 73A and 73AA of the Code this Court has held as under:

"15. Upon a plain reading of the provisions of Section 73A of the Code, it is apparent that the same are applicable to occupancies in any tract or village in respect of which the Government has before the introduction of an original survey settlement by a notification declared the provisions of the said section to be applicable. In other words for the provisions of the said section to be applicable to occupancies in a tract or village, the notification under Section 73A should precede the original survey settlement. In the facts of the present case it is an admitted position that a survey settlement had been made by the erstwhile State of Idar in the year 1936 which covered Bhiloda Taluka, including village Bundheli wherein the subject lands are situated. The question as to whether the settlement of survey for land revenue made by the erstwhile State of Idar, prior to the introduction of the Bombay Land Revenue Code could be said to be a survey settlement under the Code came up for consideration before this Court in the case of Devshankar Ambalal Jani v. State of Gujarat (supra) and it was held that the survey settlement 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 becomes a survey settlement under the Bombay Land Revenue Code. It was further held that the survey settlement of land carried out by the authority of the erstwhile State of Idar and accepted by the State of Gujarat had become a survey settlement under the Bombay Land Revenue Code. Thus on facts it cannot be disputed that the survey settlement was made in respect of Bhiloda Taluka including village Bundheli in the year 1936, whereas the provisions of Section 73A of the Code had been made applicable to the same by a notification dated 4th April 1961. The basic requirement for applicability of the provisions of Section 73A of the Code is that the notification under Section 73A should precede the original survey settlement, which is not fulfilled in the present case inasmuch as the original survey settlement was introduced much before the notification under Section 73A of the Code. Hence, the learned Advocate for the petitioner is right in contending that the provisions of Section 73A of the Code are not applicable to the subject lands, and therefore, prior sanction of the Collector was not required for transferring the same. This view is fortified by the aforesaid decision of this Court wherein this Court had noted the fact that the notification under Section 73A of the Code issued by the respondent No. 1 State of Gujarat dated Page 18 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT 4.4.1961 clearly ipso facto says that it shall apply to all those villages 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 the provisions of Section 73A have not been made applicable before issue of notification. It was held that since survey settlement in respect of the disputed land situated in Bhiloda in Sabarkantha district had been made in, as early as 1934, the said notification will not apply to the disputed land.
16. Insofar as the applicability of the provisions of Section 73AA of the Code is concerned, sub­section (1) of section 73AA places a restriction on transfers of occupancies from tribals to tribals and non­tribals without the previous permission of the Collector. Section 73AA was enacted by the Gujarat Act 37 of 1980. Under the provision of clause (a) of sub­section (4) of section 73AA, the Collector can suo motu, at any time, on an application made by the tribal transferor or his successor at any time within three years from the said date or the date of such transfer, whichever is later, initiate proceedings in contravention of sub­section (1) of Section 73AA in case where a tribal transfers his occupancy to any person other than a tribal at any time after the date of commencement of the Bombay Land Revenue Code (Gujarat Second Amendment) Act, 1980 (Gujarat 37 of 1980). Thus it is clear that the said provision applies to contravention of sub­section (1) of 73AA any time on or after the date of commencement of the Bombay Land Revenue (Gujarat Second Amendment), Act, 1980. Hence, transfer of occupancy by a tribal to a non­tribal prior to the coming into force of the Amendment Act of 1980 cannot be said to be a contravention falling within the ambit of sub­section (1) of Section 73AA. In the facts of the present case the transfer of occupancy by way of exchange has been effected in 1976, that is much before the coming into force of the Amendment Act of 1980, hence, the same cannot in any manner said to be in contravention of sub­section (1) of Section 73AA of the Code.
17. Under the provisions of sub­clause (b) of sub­section (4) of Section 73AA of the Code, the Collector is empowered to exercise similar powers in case of contravention of sub­ section (1) of Section 73A or any other law for the time being in force in case where a tribal has transferred his occupancy to a non­tribal at any time before the commencement of the Bombay Land Revenue Code (Gujarat Second Amendment) Act, 1980. Hence, in case of breach of the provisions of Section 73A of the Code, the Collector has the power to initiate proceedings for contravention of the provisions of the said sub­section at any time within three years from the date of transfer or the date of commencement of the Amendment Act. However, as observed above, the provisions of Section 73A are not applicable to the subject lands in view of the fact that the original survey settlement in respect of the said village had Page 19 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT preceded the notification under Section 73A of the Code. The Deputy Secretary, (Appeals), while holding that there being a transfer from a tribal to a non­tribal, there is a breach of Section 73AA of the Code, and that as the provisions of Section 73AA are applicable to the whole of the State of Gujarat it is irrelevant as to whether the survey settlement has been carried out or not, has lost sight of the provision of clause (a) of sub­section (4) of Section 73AA, which makes contravention of sub­section (1) of Section 73AA applicable to transfers effected by a tribal to a non­tribal, on or after the date of commencement of the Amendment Act. Whereas in the present case it is an admitted position that the transfer in question has been effected much prior to the date of commencement of the Amendment Act.
18. In view of what is held hereinabove, as the petition is required to be allowed on the basic ground that the provisions in respect of which contravention is alleged and consequent action has been taken are not applicable to the transaction in question, it is not necessary to deal with the contention as regards limitation as well as on the merits of the transaction.
19. For the reasons stated hereinabove, it is held that neither the provisions of Section 73A of the Code, nor the provisions of Section 73AA of the Code are applicable to the transfer in question. Accordingly, the impugned orders dated 30th June 1995 passed by the State Government (Annexure SF), the order dated June 1993 passed by the Collector, Sabarkantha (Annexure SE), the order dated 29th May 1989 passed by the Deputy Collector, LAND­8 Scheme, Sabarkantha, Himmatnagar (Annexure SD) as well as the order dated 13th January 1989 passed by the Collector, Sabarkantha (Annexure SC), are quashed and set aside."

21. In case of State of Gujarat Versus Hiralal Motilal Luhar reported in 1980 (1) GLR 728 while considering the provisions of Sections 4 and 13 of the Easement Act it is held as under:

"6. Turning to Section 13, the relevant provisions so far as they are material to, the question under consideration, may be noted.
13. Where one person transfers or bequeaths immovable property to another Page 20 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT
(a) if an easement in other immovable property of the transferor or testator is necessary for enjoying the subject of the transfer or bequest, the transferee or legatee shall be entitled to such easement; or
(b) xxxxxxxxx
(c) if an easement in the subject of the transfer or bequest is necessary for enjoying other immovable property of the transferor or testator, the transferor or the legal representative of the testator shall be entitled to such easement; or
(d) xxxxxxxx
(e) Where a partition is made of the joint property of several persons­
(e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement, or The easements mentioned in this section, clauses (a) (c) and (e), are called easements of necessity".

It would be thus seen that easements of necessity are covered by cls. (a) (c) and (e). We have only to consider whether the instant case falls within clause (a) or (c) because clause (e) is out of question. The learned Judge has held that it falls within clause (a). Here also, the very first condition which is required to be fulfilled is that the immoveable property as such has to be transferred or bequeathed and creation of sub­ lease in my opinion, would not amount to such transfer as is contemplated in Section 13.

7. What is contemplated in Section 13 is the transfer or bequest by the owner of an immoveable property. May be the transfer is in the form of only an interest in the property and may, therefore, include letting out of the property. But it must be by the owner of the property because it has to be connected with another property belonging to the transferor and unless the transferor is the owner of that other property, the question of creating an easement of necessity cannot arise in respect of such property. In the instant case, Hasanbhai was not the owner of the land of S. No. 690/l/B out of which he sub­let a part to the Plaintiff. He was also not the owner of the other land viz. S. No. 690/l/A and, therefore, the question of creation an easement of necessity would not arise. Illustration (n) strengthens the view that I am taking, It is in respect of a house and grounds belonging to A who lets out the same to B for a particular business. B has no access to them other than by crossing A's land. B is entitled to a right of way over that land suitable to the business to be carried on by B in the house and grounds let out to him. In this view of the matter, the learned Judge, in my opinion, was patently in error in holding that the plaintiff was entitled to a right of way as an easement of necessity and in decreeing the Page 21 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022 C/SCA/17644/2017 CAV JUDGMENT plaintiff's suit which deserves to be dismissed. The appeal, therefore, succeeds."

22. In view of the above settled legal position of the law and as the petitioners are having easementary right there is no breach of provision of Section 73AA of the Code, 1879 and as such the impugned order passed by the SSRD is accordingly, required to be quashed and set aside. Moreover, the SSRD could not have cancelled the NA permission without there being any prayer for the same by the respondent Nos.1 to 5 in the Revision Application No.8 of 2016. Accordingly, the impugned order passed by the SSRD is hereby quashed and set aside. The petition is allowed. Rule is made absolute. No orders as to cost.

(BHARGAV D. KARIA, J) PALAK Page 22 of 22 Downloaded on : Sat Jan 15 00:51:50 IST 2022