Gujarat High Court
Govindbhai Davjibhai Gamit vs State Of Gujarat & 4 on 14 September, 2015
Author: C.L. Soni
Bench: C.L. Soni
C/SCA/14469/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14469 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
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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 ?
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GOVINDBHAI DAVJIBHAI GAMIT....Petitioner(s)
Versus
STATE OF GUJARAT & 4....Respondent(s)
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Appearance:
MR SATYAM Y CHHAYA, ADVOCATE for the Petitioner(s) No. 1 1.6
MR RONAK RAVAL, AGP for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 14/09/2015
ORAL JUDGMENT
[1] Mr. Chhaya, learned advocate for the petitioners is permitted to delete respondent no.5 as presence of respondent no.5 is not required for deciding the issue involved in the matter.
[2] The petition is taken up for final hearing with consent of the learned advocates for the respective parties. Hence, Rule. Mr. Ronak Raval, learned AGP waives service of rule on behalf of the respondents.
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[3] The petitioner is aggrieved by the order dated 24.07.2015
passed by the Secretary, Revenue Department (Appeals) refusing to grant interim stay to the petitioner in Revision Application No.10 of 2015 preferred by the petitioner against the order dated 29.04.2015.
[4] The case of the petitioner is that the petitioner is tribal and owner of land bearing survey no.27/76, Block No.93 admeasuring 10027 sq.mtrs. situated in village Kanthvava. For such land, the father of the petitioner applied for N.A. permission for industrial use. Such permission was granted to the father of the petitioner by Taluka Panchayat in the year 2000 and entry to that effect was made on 20.02.2004 in record of rights. It appears that the petitioner with other three persons decided to enter into partnership for doing business in the name of Sharddha Stone Industry Ltd. and entry as regards partnership deed was made in the record of rights on 29.02.2004. However, such entry was thereafter canceled in exercise of revisional powers under Revenue Code. Further it is the case of the petitioner that after long period of 8 years, though the petitioner had not started with partnership with those 3 persons and voluntarily agreed to cancel the entry as regards partnership deed, Deputy Collector initiated proceedings for vesting land with the government by holding that there was breach of provisions of Section 73AA of the Gujarat Land Revenue Code (for short 'the Code'). However, the petitioner continued to be occupier of the land in question and applied for quarry lease to extract minerals from the land in question, which the Collector granted in the year 2003. In such facts situation, the case of the petitioner is that the Secretary ought to have granted interim stay against the order made by the Deputy Collector and confirmed by the Collector for breach of provisions of Section 73AA of the Code.
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[5] Mr. Chhaya, learned advocate for the petitioner submitted
that as stated in the petition after the lease was granted to the petitioner for his own land, the petitioner has invested huge amount of Rs.64 lacs and partnership deed was never acted upon. Mr. Chhaya submitted that after entry of partnership deed was canceled on volition of the petitioner, the petitioner continued to enjoy the land as N.A. Land, however, after long time, Deputy Collector initiated action for breach of provisions of Section 73AA of the Code. In such facts situation as submitted by Mr. Chhaya, the petitioner could make out strong case for grant of interim stay in favour of the petitioner.
[6] Mr. Ronak Raval, learned AGP on the other hand submitted that after the father of the petitioner got permission for non agricultural purpose, he entered into partnership deed with other 3 persons which was not permissible as the petitioner being tribal was prohibited from transferring the land or inducting any non tribal on the land on the basis of partnership deed. Mr. Raval submitted that the petitioner has not disputed that partnership deed was entered, which would show that such partnership deed was in breach of provisions of Section 73AA of the Code. Therefore, Deputy Collector and Collector could not be said to have committed any error in ordering to vest the land with the government for breach of provisions of Section 73AA of the Code. Mr. Raval therefore, submitted that the Secretary cannot be said to have committed any error in refusing to grant interim stay to the petitioner by recording that because of breach of provisions of Section 73AA of the Code, order impugned before him was made against the petitioner.
[7] Having heard learned advocates for the parties and having perused the orders passed by the authorities below, it appears that father of the petitioner being tribal was though entitle to ask for N.A. Page 3 of 5 HC-NIC Page 3 of 5 Created On Thu Sep 17 01:29:47 IST 2015 C/SCA/14469/2015 JUDGMENT permission for use of land for industrial purpose, however, entered into partnership deed with 3 other persons to do business in the name of Sharddha Stones Industry Ltd. The entry of such deed was made on 29.02.2004 in the record of rights. But then proceedings for cancellation of entry was initiated against the petitioner. In such proceedings, the petitioner took no objection against cancellation of entry. Ultimately by order dated 17.09.2004 entry was canceled by the Collector. However, it appears that Deputy Collector then initiated proceedings under Section 73AA of the Code on the ground that the petitioner by entering into partnership deed, committed breach of provisions of Section 73AA of the Code.
[8] It is not in dispute that after Deputy Collector passed order for vesting land with the government for breach of provisions of Section 73AA of the Code, the Collector in exercise of powers under the provisions of the Mines and Minerals Act and the Rules made thereunder granted mining lease permission vide order dated 31.03.2011 to extract minerals from the land in question on different conditions. It is the case of the petitioner that based on such order of Collector, the petitioner invested huge amount. In such facts situation and without entering into merits of the case, the Court finds that the Secretary ought to have granted stay against that part of the order whereby the land in question was ordered to be vested with the government. Non granting of stay in such facts situation may seriously prejudice the case of the petitioner and even may render proceedings of the revision application infructuous.
[9] For the reasons stated above, the petition is partly allowed. Order impugned before the Secretary in Revision Application preferred by the petitioner being Revision Application No.10 of 2015 shall remain stayed insofar as order of vesting of land of the petitioner with the government is concerned. It is clarified that order imposing penalty of Page 4 of 5 HC-NIC Page 4 of 5 Created On Thu Sep 17 01:29:47 IST 2015 C/SCA/14469/2015 JUDGMENT Rs.16,48,260/ in respect of which the petitioner has made no grievance is not stayed by the present order. However, at the instance of Mr. Chhaya it is clarified that this Court has not gone into merits of the case as entire matter is at large open before the Revisional authority. It is further clarified at the instance of Mr. Raval, learned AGP that revisional authority while deciding the revision application shall not be influenced by the grant of partial stay in favour of the petitioner in the present petition.
Rule is made absolute accordingly.
Direct service is permitted.
(C.L.SONI, J.) satish Page 5 of 5 HC-NIC Page 5 of 5 Created On Thu Sep 17 01:29:47 IST 2015