Gujarat High Court
Subhashbhai Babnabhai Vasava vs State Of Gujarat & on 8 June, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/7793/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7793 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
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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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SUBHASHBHAI BABNABHAI VASAVA....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR JOY MATHEW, ADVOCATE for the Petitioner(s) No. 1
GOVERNMENT PLEADER for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 1 , 2.1 - 2.4
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 08/06/2017
ORAL JUDGMENT
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1. Petitioner herein challenges the order dated 21.12.2004 passed in Revision Application No.6 of 2001 passed by the Revenue Secretary, whereby entry No.116 made in favour of the petitioner came to be set aside.
He also disposed of Revision Application No.1 of 1998.
The petitioner filed a separate petition challenging the order passed in Revision Application No.1 of 1998 being Special Civil Application No. 7793 of 2005. Vide order dated 6.3.2006, Rule came to be issued making it returnable on 22.3.2006, and in similarly situated matter being Special Civil Application No. 7792 of 2005 also rule was made returnable on the very day.
Interim relief was granted in Special Civil Application No.7792 of 2005, making it operative till final hearing of the petition. However, in the present case, no interim relief was granted initially and the Court, on 22.3.2006, had also protected the present petitioner by way of interim relief.
2. This Court notices that Coordinate Bench (Coram:
K.M.Thaker, J.), on 25.4.2017, in a similarly situated matter being Special Civil Application No. 7792 of 2005 has quashed and set aside the impugned order Page 2 of 7 HC-NIC Page 2 of 7 Created On Fri Aug 18 06:31:23 IST 2017 C/SCA/7793/2005 JUDGMENT holding and observing that what is prohibited by section 73AA of the Gujarat Land Revenue Code ("the Code" for short) is the transfer of occupancy belonging to the person of scheduled tribe to tribal or nontribal person. The Court held that on examination of the matter, it comes out that Secretary has not addressed the issue, which seems to have been raised by respondent No.2, that sale deed was not executed and the parties had executed only agreement to sell and sufficient stamp duty was not paid in respect of the disputed transaction, and therefore, the authority could not take cognizance of the document and/or transaction. However, the petitioner's contention had not been addressed and nor dealt with by the Revenue Secretary. It is the say of the petitioner that the said transaction is by tribal from nontribal and, therefore, the occupancy of land of person belonging to scheduled tribe, would not be affected. The petitioner is a person of scheduled tribe, who purchased the land in question from non tribal, and therefore, occupancy of land of person of scheduled tribe would not get affected in any manner.
3. On account of the disputed transaction, it is the Page 3 of 7 HC-NIC Page 3 of 7 Created On Fri Aug 18 06:31:23 IST 2017 C/SCA/7793/2005 JUDGMENT case of the petitioner that section 73AA of the Code was not at all attracted and applicable. It is also his case that this vital aspect has been not taken into consideration by the Revenue Secretary while passing the order impugned. The Court, therefore, passed the order wherefrom vital finding and observations are reproduced: "17.On plain reading of said provision it comes out that what is prohibited by Section 73AA is transfer of occupancy of land belonging to any person of schedule tribe to tribal or non tribal.
18.The petitioner would contend that the said provision does not take into account its fold the transaction whereby tribal purchases land from nontribal inasmuch as in such transaction occupancy of land of person belonging to schedule tribe is not affected. Learned advocate for the petitioner would submit that in present case the petitioner being person of schedule tribe purchased land in question from nontribal and that therefore occupancy of land of any person of schedule tribe was not affected in any manner on account of the disputed transaction and that therefore the said Section was not at all attracted and applicable. Learned advocate for the petitioner contended that the said important aspect involved in the matter is not considered by the Secretary while passing the impugned order.
19.On examination of the order it comes out that the Secretary has addressed the issue, which seems to have been raised by the respondent No. 2 viz. that any sale deed was not executed and the parties had executed only Agreement to Sell and sufficient stamp duty was not paid in Page 4 of 7 HC-NIC Page 4 of 7 Created On Fri Aug 18 06:31:23 IST 2017 C/SCA/7793/2005 JUDGMENT respect of the disputed transaction and that therefore authority could not have taken cognizance of the said document and/or transaction. The Secretary seems to have addressed the said contention raised by the respondent no.2 however above mentioned contention by the petitioner is not addressed and is not dealt with by the Secretary in the impugned order.
20.Without recording conclusion that Section 73AA was attracted (or not) the secretary could not have directed that the orders passed by the deputy collector and the collector confirming the transaction and entry be set aside.
21.From the foregoing discussion it becomes clear that the contention raised by the petitioner deserves to be examined by the Secretary and in view of the fact that the said vital aspect is not examined and is not dealt with and answered by the Secretary while passing impugned order, the said matter deserves reconsideration and for that purpose the impugned order deserves to be set aside.
22.Consequently following order is passed:
(a) The impugned order dated 21/12122004 passed by the Secretary (Appeal) in Revision Application No. 1/98 is set aside and the proceedings are remanded to the Secretary for rehearing and reconsideration and fresh decision.
(b) The Secretary shall grant opportunity of hearing to the parties and pass fresh order after dealing with the contention which may be raised by both sides, more particularly the contention / objection with reference to applicability of Section 73AA (in respect of the transaction in question whereby person of scheduled tribe purchased the land in question from nontribal and thereby the occupation by the person of schedule tribe is not affected). Page 5 of 7
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(c) The Secretary shall allow the petitioner and heirs of original respondent No.2 i.e. present respondent Nos.2.1 to 2.4 to raise all such contentions as may be available in law and the Secretary shall hear and decide the said Revision Application No.1/98 by passing fresh reasoned and speaking order dealing with all contentions which may be raised by both sides including the contention related to the applicability of Section 73AA of the Act in respect of the transaction in question.
With the aforesaid clarification the petition is partly allowed. Rule is made absolute to the aforesaid extent.
Orders accordingly."
4. As is apparent from the record, the order impugned was common in both the matters, being Special Civil Application No. 7792 of 2005 and in the present matter. Here also the petitioner has sought to quash the order dated 21.12.2004 passed in Revision Application No.6 of 2001 by Revenue Secretary, as violative of provisions of the Code and has further sought permanent injunction from interfering with the possession and occupation of the land in question admeasuring 3 acres and 3 gunthas situated at village:Dabka, Taluka: Sagbara, District: Narmada.
5. In wake of the order of the coordinate Bench quashing and setting aside the order in revision and Page 6 of 7 HC-NIC Page 6 of 7 Created On Fri Aug 18 06:31:23 IST 2017 C/SCA/7793/2005 JUDGMENT all the legal issues raised in respect of entry which has been mutated, this application also deserves to to follow suit.
6. Resultantly, the order passed in Revision Application No.6 of 2001 by the Revenue Secretary vide order dated 21.12.2004 is quashed and set aside remanding the proceedings to the very Authority, to be heard for reconsideration and fresh decision by the Revenue Secretary on availing the opportunities to the parties keeping in mind all contentions raised by the petitioner before concerned authority and also before this Court in the present petition, with a further direction to decide all questions, preferably within a period of four months from the date of receipt of the copy of this judgment. Petition stands disposed of accordingly. Rule is made absolute accordingly.
(MS SONIA GOKANI, J.) SUDHIR Page 7 of 7 HC-NIC Page 7 of 7 Created On Fri Aug 18 06:31:23 IST 2017