Gujarat High Court
Vishrambhai Jaganbhai Patel Decd. ... vs Special Secretary , Revenue ... on 25 February, 2021
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/3529/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3529 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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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VISHRAMBHAI JAGANBHAI PATEL DECD. THRO' LEGAL HEIRS
Versus
SPECIAL SECRETARY , REVENUE DEPARTMENT(DISPUTE) & 5 other(s)
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Appearance:
MOHIT P PATHAK(7344) for the Petitioner(s) No. 1
MS TEJAL A VASHI(2704) for the Petitioner(s) No. 1.1
for the Respondent(s) No. 7
GOVERNMENT PLEADER(1) for the Respondent(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 2
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3,4,5,6
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 25/02/2021
ORAL JUDGMENT
1. Heard learned advocate Ms. Nirali Sharda for learned advocate Ms. Tejal Vashi for the petitioner and learned advocate Page 1 of 13 Downloaded on : Fri Sep 03 21:06:48 IST 2021 C/SCA/3529/2016 JUDGMENT Mr. H.S.Munshaw for respondent No.2 through video conference.
2. Rule returnable forthwith. Learned advocate Mr. H.S.Munshaw waives service of notice of rule on behalf of respondent no.2. Having regard to the controversy which is in narrow compass, with the consent of the learned advocates of the parties, the matter is taken up for hearing.
3. By this petition under Article 227 of the Constitution of India the petitioner has prayed for the following reliefs:
"(a) To issue any appropriate writ, order or direction, quashing and setting aside the impugned order dated 28.9.2015, passed by the SSRD, respondent no.1 in Appeal/Revision No.12/2013 and the order passed by the DDO, Valsad dated 4.12.2012 at Annexure-A & B respectively as being arbitrary, illegal, without application of mind and against the principles of interpretation of statutes and further be pleased to hold that the provisions of Rule-57L(4) could not have been applied retrospectively in the facts of the present case and the action of the respondent authorities in applying the provisions of Rule-
57L(4) retrospectively is bad and illegal and further be pleased to allow the application of the petitioner dated 22.2.2012 at Annexure-G to the present petition u/s.73AA of the Bombay Land Revenue Code;
(b) Pending hearing and petition, the Honourable Court may be pleased to stay the operation, implementation and execution of the impugned order dated 28.9.2015, passed by the SSRD, respondent no.1 in Appeal/Revision No.12/2013 and the order passed by the DDO, Valsad dated 4.12.2012 at Annexure-A & B respectively;
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(c) Grant such other and further relief/s as may be deemed fit and proper in the interest of justice."
4. Brief facts of the case are as under:
4.1 The late father of the petitioner who was a tribal, acquired/purchased the land bearing survey no.1088/5 admeasuring 1 Hec. 10 Are 28 Sq.Mtrs. situated at Pariya, Taluka: Pardi pursuant to the order passed by the Asst.
Collector in September, 1967. The petitioner had also made the necessary payment to the State Government as per the order passed by the Asst. Collector in September, 1967. Thereafter, pursuant to the order as at Annexure-C to this petition, an entry no.2648 came to be mutated in Village Form no.6.
4.2. The petitioner made an application to the appropriate authority for the conversion of the disputed land from new tenure to old tenure and accordingly, by an order dated 6.1.2005, the disputed land came to be converted from new to old tenure and the petitioner also paid the necessary premium and entry no.7208 came to be mutated in Village Form no.6 in favour of the petitioner. Since the land came to be converted from new tenure to old tenure for non-agricultural purposes, another entry came to be mutated being entry no.7317 in Village Form no.6.
4.3. The petitioner wanted to sell the land to the respondent no.6 herein and therefore, the petitioner entered into an Page 3 of 13 Downloaded on : Fri Sep 03 21:06:48 IST 2021 C/SCA/3529/2016 JUDGMENT agreement to sale on the 9.3.2012 which also came to be registered before the Sub-Registrar.
4.4. Since the purchaser of the disputed property was a non- tribal, the petitioner in due compliance with section-73AA of the Bombay Land Revenue code, 1879 [for short 'the code'] made an application to the District Development Officer, District Panchayat, Valsad on 22.2.2012 seeking permission to sell the property to respondent No.6 herein.
4.5. Pursuant to the application filed by the petitioner, District Development Officer sought necessary information by way of a report from the Mamlatdar, Pardi and the Taluka Development Officer [for short 'the TDO'] as well as the Circle Inspector and accordingly, all the three authorities gave their necessary reports in favour, recommending to grant permission to sale the land in favour of the petitioner.
4.6. However, the Managing Committee of the District Panchayat, Valsad passed an unanimous resolution dated 29.10.2012 recommending not to grant the permission in favour of the petitioner which was recorded in its minutes.
4.7. It is the case of the petitioner that thereafter, by the impugned order dated 4.12.2012, relying only upon the resolution no.123 passed by the Managing Committee of the District Panchayat, Valsad and without considering the reports of the Circle Inspector, TDO and Mamlatdar and also without Page 4 of 13 Downloaded on : Fri Sep 03 21:06:48 IST 2021 C/SCA/3529/2016 JUDGMENT appreciating the fact that the provision of Rule-57L(4) of the Gujarat Land Revenue Rules, 1972 [for short 'the Rules, 1972] would not be applicable in the case of the petitioner, the District Development Officer [for short 'the DDO'], Valsad rejected the application of the petitioner dated 22.2.2012 .
4.8. Being aggrieved by and dissatisfied with the impugned order passed by the DDO, Valsad, the petitioner preferred Revision No./12/2013 on 26.9.2013 before Special Secretary, Revenue Department (Appeals) [for short 'SSRD']. The respondent no.6 appeared before the SSRD and filed her reply to the revision application preferred by the petitioner supporting the claim of the petitioner.
4.9 In the interregnum period, the respondent no.6 filed a Special Civil Suit No.104 of 2013 for specific performance of agreement to sale and in the said suit, the petitioner and the respondent no.6 arrived at a settlement which was placed on record. Thereafter, a consent decree was passed in terms of the settlement deed on the very same day i.e. on 2.10.2013.
4.10 The SSRD rejected the Revision no.12 of 2013 by order dated 28.9.2015 confirming the order dated 04.12.2012 passed by the DDO.
5. Learned advocate Ms. Nirali Sharda submitted that the respondent authorities have erroneously applied Rule 57L(4) of the Rules, 1972 as the land in question was never purchased Page 5 of 13 Downloaded on : Fri Sep 03 21:06:48 IST 2021 C/SCA/3529/2016 JUDGMENT by the petitioner who is a tribal from a non-tribal through his own means nor the land was granted to the petitioner under any Act or Rule.
6. The learned advocate Ms. Sharda invited attention of the Court to the order of allotment of the year 1967 which provides that the land in question was allotted to the late father of the petitioner in the year 1967 for agricultural purpose on the basis of new tenure land with various conditions and one of the condition was that whatever the price of the land to be decided by the Government, the same would be payable by the allottee. It was further submitted that vide Entry No. 2648 dated 22.02.1968, the land was mutated in the name of the late father of the petitioner Vishrambhai Patel as per order dated 02.10.1967 passed by the Collector.
7. Learned advocate Ms. Sharda submitted that the land in question was converted into old tenure land by order dated 06.01.2005 passed by the Mamlatdar and entry to that effect was mutated in the Revenue records vide Entry No. 7208 which was certified by the competent authority on 21.02.2006.
8. It was submitted that the late father of the petitioner was of old age and was in need of money and hence, application was made in the year 2012 before the Mamlatdar to grant permission to sale the land and accordingly, application was forwarded by the Mamlatdar to the TDO who by order dated 17.04.2012, granted permission to sale the land in question.
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9. However, the Executive Committee of the District Panchayat however, by resolution dated 29.06.2012 in the meeting held on 29.09.2012, rejected the request of the petitioner to sale the land to a non-tribal under section 73AA of the Code with rule 57L(4) of the Rules, 1972.
10. In view of the decision taken by the Executive Committee of the District Panchayat, the District Development Officer also rejected the application of the petitioner. It was therefore submitted that in view of the above undisputed facts, the provisions of Rule 57L(4) of the Rules, 1972 is not violated as the said rule is not applicable in the facts of the case as the land was neither acquired by the petitioner from a non-tribal nor the land is granted to the petitioner as a tribal under any Act or Rules.
11. On the other hand, learned advocate Mr. H.S.Munshaw appearing for respondent No.2-DDO submitted that the land was granted to the late father of the petitioner by the Collector vide order dated 02.10.1967 as per G.R. dated 25.08.1967 and one of the vital condition was to use the land for the agricultural purpose only. It was therefore, submitted by the learned advocate Mr. Munshaw that there is clear violation of sub-clause(ii) of sub-rule (4) of Rule 57-L of the Rules, 1972, hence, the permission sought by the father of the petitioner is rightly rejected by the Executive Committee of respondent No.2 District Panchayat.
Page 7 of 13 Downloaded on : Fri Sep 03 21:06:48 IST 2021C/SCA/3529/2016 JUDGMENT 12. Learned advocate Mr. Munshaw relied upon the
following averments made in the affidavit-in-reply of the respondent No.2 in support of his submissions:
"2. The Respondent No.2 most respectfully submits that the petitioner was granted the said land by Asst. Collector, Valsad on several terms and conditions and a copy of the order is annexed As Annexure-A. It is pertinent to note that the land in question was granted to the petitioner on the basis of a G.R.dated 25.8.67 issued by the Govt. of Gujarat through its Revenue Detp. And one of the vital conditions was to use the same for agricultural purpose only and a copy thereof is annexed herewith and marked as Annexure-B. The Respondent no.2 submits that necessary entries were passed in revenue record in that regard. It is further stated that th petitioner is a tribal and, therefore, the land allotted to him was not to be used for any purpose and allowed to be sold. The Respondent No.2 most respectfully craves leave to produce a copy of village Form No. 7/12 dated 24.12.10 with regard to land in question bearing Survey No. 1088/5 of village Pariya, Taluka Pardi, Dist. Valsad as Annexure-C From a kind perusal thereof it would be clear that the provisions of section 73AA of the land revenue Act are applicable. It is stated that the land in question is a new tenure land. The respondent no.2 craves leave to annex herewith a copy of village from No.6 i.e. record of rights indicating mutation entry No. 7208 dated 12.4.05 with regard to land in question as Annexure-D. It is stated that even from a kind perusal thereof it would be clear that the petitioner herein is required to follow number of conditions for conversion of the land in to old tenure land and liable to pay premium for non- agricultural usage of the land.
The Respondent No.2 submits that the petitioner herein applied for a permission to sale the land in question on 22.2.12 and a copy of the application is annexed as Annexure-Page 8 of 13 Downloaded on : Fri Sep 03 21:06:48 IST 2021
C/SCA/3529/2016 JUDGMENT E. I tis pertinent to note that he wanted to sale the land to non tribal and therefore necessary permissions were required as per the order of 1968 passed by the Asstt. Collector Valsad. The respondent no.2 submits that, therefore, his application was processed in accordance with the provisions of the Act and G.R. And was placed before the Executive Committee of Valsad District Panchayat having competence to take appropriate decision. It is humbly stated that the Executive Committee of Valsad District Panchayat in its meeting dtd 29.9.12 resolved to refused such permission and a copy of the resolution in annexed as Annexure-F. It is stated that in view of this the respnt. No.2 as District Development Officer, passed the impugned order dated 4.12.12 rejecting the said application of present petitioner and a copy of the order is annexed as Annexure G. It is submitted that the said order was challenged by the petitioner by way of filing revision application before the respondent No.1 but after thorough examination of the facts and material on record as well as the provisions of the Act, the same rejected through a reasoned order dated 28.9.15. It is submitted that considering the facts and the provisions of the law it is crystal clear that the order challenge are just and reasonable.
4. The respondent no.2 submits that as per the record of Valsad District Panchayat land in question has never converted to non-agricultural land. It is further stated that the petitioner has tried to rely upon the reports of the Circle Inspector, Pardi Taluka Panchayat, Dist. Valsad submitted to Taluka Development Officer on 2.4.12 It is humbly stated that such report as well as letters from Mamlatdar or Taluka Development Officer are not binding to the competent authority which is required to take decision on the basis of the facts and material of record as well as the provisions of the applicable Act and time to time Govt. Policy. It is therefore submitted that such reports are wrongfully relied upon by the petitioner to support his prayer."
13. It was therefore, submitted by learned advocate Mr. Munshaw that in view of the violation of the clause (ii) of Page 9 of 13 Downloaded on : Fri Sep 03 21:06:48 IST 2021 C/SCA/3529/2016 JUDGMENT sub-rule (4) of Rule 57-L of Rules, 1972 read with section 73AA of the Code, the petition deserves to be dismissed.
14. Having heard learned advocates for the respective parties and having gone through the materials on record, it emerges from the record that the land in question was allotted to late Vishrambhai Patel who is a tribal residing at Survey No. 1088/05 Tal. Pardi Dist. Valsad. The said land was allotted on various conditions mentioned in the order dated 02.10.1967. It is also not in dispute that the land was converted into old tenure land in the year 2005. Subsequently, when the permission was sought by late Vishrambhai Patel to sale the land under section 73AA of the Code, the Mamlatdar as well as Taluka Development Officer has recommended to grant the permission to the District Panchayat. However, the Executive Committee of the District Panchayat applying Rule 57L(4) of the Rules, 1972 denied such permission. It would therefore be germane to refer to Rule 57(L) which reads as under:
"57-L Conditions and circumstances for transfer of land under section 73-AA(1) by the Collector- [The District Panchayat] may sanction transfer of occupancy of tribal to any other tribal if the sale is at the market value and any of the following conditions are satisfied.
(i) The transferor is leaving the village permanently for settlement elsewhere for better means of livelihood; or
(ii) The transferor is not rendered landless or without means of livelihood;Page 10 of 13 Downloaded on : Fri Sep 03 21:06:48 IST 2021
C/SCA/3529/2016 JUDGMENT
(iii) The transferor is unable to cultivate the land personally due to old age or physical or mental disability and there is no person in his family to undertake the cultivation of the land; or
(iv) the land is being sold for recovery of dues specified in section 73-AB or other dues recoverable as arrears of land revenue; or
(v) such land is being given in gift whether by way of trust, or otherwise, and such gift is made bonafide by the owner in favour of a member of his family or in accordance with the customs of the tribal people;
[(vi) the land is being sold for construction of a house of agricultural labourers and Small and Marginal farmers] (2) where the permission is granted under any of the conditions specified in clause (i) to (v) of sub-rule (1) of this rule or rule 3, such permission shall be subject to further condition that the person in whose favour the transfer of the land is made, shall cultivate the land personally. If the purchaser fails to cultivate the land personally within one year from the date on which he took possession or ceases, without Collector's permission to cultivate the land personally within five years from the date on which he took possession, the permission given shall be deemed to have been cancelled and the transfer shall be deemed to have been made without the previsous sanction of [the District Panchayat] such permission shall be granted only if the tribal purchaser is holding landless than an economic holding and only upto such are as would not make him holding more than an economic holding.
(3) [The District Panchayat] may sanction transfer of occupancy of trial person to any non-tribal person if any of the following conditions are satisfied and only after obtaining except for land required for industrial undertaking [and except in case of clauses (iii) and (iv) below] the previous approval of the State Government.
Page 11 of 13 Downloaded on : Fri Sep 03 21:06:48 IST 2021C/SCA/3529/2016 JUDGMENT (i) The land has non-agricultural potentiality and is required
for Commercial undertaking, Educational or charitable institution, a cooperative housing society or for such public purpose for bonafide use; or
(ii) The transfer is in favour of a person who has been or is likely to be rendered landless on account of compulsory acquisition of his land for any public purpose; or
(iii) The land being sold for recovery of dues specified in section 73-AB, or other dues recoverable as arrears of land revenue.
(iv) the land is being sold for construction of a house of agricultural labourers and Small and Marginal farmers] [(4) [The District Panchayat] or as the case may be [the District Panchayat] as far as scheduled Areas are concerned, may sanction transfer of occupancy of any land of a tribal to any- tribal or non-tribal, if the following conditions are satisfied:-
(i) The land is acquired by a Tribal from non-tribal through his own means,
(ii) The land is not granted to the tribal under any act or rules.]"
15. On perusal of the aforesaid Rule 57L of the Rules, 1972, it is apparent that sub-rule (4) of Rule 57L would be applicable only on two conditions. The District Panchayat may grant permission for sale of land to any tribal or a non-tribal only on two conditions. Firstly, the land is acquired by a tribal from a non-tribal through his own means and secondly, the land is not granted to the tribal under any Act or Rules. In the facts of the case, it is not in dispute that the land in question Page 12 of 13 Downloaded on : Fri Sep 03 21:06:48 IST 2021 C/SCA/3529/2016 JUDGMENT was not acquired by the late father of the petitioner from non- tribal through his own means and secondly, the land is not granted to the father of the petitioner under any Act or Rules but the same was allotted in the year 1967 on various terms and conditions for agricultural purpose which was later on converted into old tenure land by the Mamlatdar in the year 2005.
16. In view of the foregoing reasons, the petition is allowed.
Impugned order dated 28.09.2015 passed by the SSRD in Appeal/Revision No. 12/2013 and order dated 04.12.2012 passed by the DDO, Valsad are hereby quashed and set aside. Rule is made absolute to the aforesaid extent.
(BHARGAV D. KARIA, J) JYOTI V. JANI Page 13 of 13 Downloaded on : Fri Sep 03 21:06:48 IST 2021