Gujarat High Court
Laxmiben Becharbhai Vasava vs State Of Gujarat on 27 February, 2018
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/1950/2017 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1950 of 2017
In SPECIAL CIVIL APPLICATION NO. 7329 of 2017
With
CIVIL APPLICATION NO. 1 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be allowed to see Yes
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 as Yes
to the interpretation of the Constitution of India or any
order made thereunder ?
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LAXMIBEN BECHARBHAI VASAVA
Versus
STATE OF GUJARAT
=============================================
Appearance:
MS RV ACHARYA for the PETITIONER(s) No. 1,2
MR KM ANTANTI, AGP for the Respondents.
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 06/03/2018
ORAL JUDGMENT
Page 1 of 10
C/LPA/1950/2017 JUDGMENT (PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY) [1] We have heard learned Counsel for the appellant and learned Assistant Government Pleader for the respondents at length.
With their consent, the appeal is being disposed of at the stage of admission.
[2] The original petitioners in Special Civil Application No.7329 of 2017 have filed this Letters Patent Appeal under clause 15 of the Letters Patent aggrieved by the order dated 05.10.2017 passed by the learned Single Judge.
[3] By the aforesaid order, the learned Single Judge while declining to grant relief as prayed for, disposed of the petition with following directions : "6. It shall be open for the applicant No.1 herein, namely, Laxmiben Becharbhai Vasava to apply to the Collector that the possession of the plot may be restored to her. If any such application is filed by the applicant No.1 under clause (3)(a) of Section 73AA of the Land Revenue Code, then the Collector may look into the same in accordance with law and take an appropriate decision in that regard."
[4] In the aforesaid Special Civil Application, the appellants herein original petitioners have questioned legality and validity of the Page 2 of 10 C/LPA/1950/2017 JUDGMENT order dated 01.03.2017 passed by the Collector, Bharuch, by which the Collector declined to grant the permission in favour of the applicant No.1 to transfer the land bearing Survey No.47/48, plot No.B/24/C admeasuring 48.54 sq.mtrs. situated at Village - Maktampur, Taluka -
Bharuch under the provisions of Section 73AA of the Gujarat Land Revenue Code.
[5] Appellant No.1 is a tribal and the appellant No.2 is a non tribal. The plot in question is owned by a tribal and as per provisions under Section 73AA of the Land Revenue Code, such plot owned by the tribal, cannot be transferred without prior permission of authority concerned. It appears that 1st appellant entered into agreement to sell with 2nd appellant, who is non tribal, to transfer land in question.
Thereafter, he applied to the Collector for grant of permission, as contemplated under Section 73AA(1) of the Land Revenue Code. The Collector, in the order dated 01.03.2017, has observed as under : "In the present case, demand was rejected vide letter No. Bhumi/73AA/Vashi/3904 dated 03/06/2010 of this office and case papers were forwarded to Deputy Collector of Bharuch directing him to initiate procedure of breach of condition. Deputy Collector of Bharuch was informed to send details of the procedure done in the same and the case papers by the office vide letter no. Bhumi/Vashi/8955 dated 06/10/2016. In reference to the same, the Assistant Collector Page 3 of 10 C/LPA/1950/2017 JUDGMENT of Bharuch stated, vide letter No. Record/Vashi/05 dated 04/02/2017, that he was instructed to initiate the procedure of breach of condition but the aforesaid documents are not found on record on searching for the same. Its search is going on. It was stated that looking to the latest copy of No.7 at Edhara center, it appears that no procedure of breach of condition was initiated.
After verifying the aforesaid submission, the reply and evidence produced by the applicant pursuant to the remand case of Additional Secretary, Revenue Department (Dispute), Ahmedabad, it is found that the land in question is non agriculture, it is a plot. But both the agriculture and non agriculture land of tribal attract Section 73AA of Land Revenue Code. The applicant has executed earnest money deed of the land in question on 23/11/2009. Register sale deed has not been executed. It was declared in the earnest money deed that the possession of property was transferred to Ranjitbhai Kanjibhai Chavda, without executing sale deed, on the basis of the earnest money deed only. It has been submitted that as per the judgement of Hon'ble Supreme Court, an earnest money deed is not a sale deed. But there is only the detail of the earnest money deed. No evidence was produced corroborating the existence of provision that possession can be transferred on the basis of earnest money deed. The applicant Laxmiben Becharbhai Vasava executed the earnest money deed along with possession and transferred the possession of the property and made the mutation. As the land in question is subject to Section 73AA of Land Revenue Act, it cannot be transferred Page 4 of 10 C/LPA/1950/2017 JUDGMENT without obtaining permission of the competent authority. As the possession of the land was transferred without obtaining permission, provision given in sub section (1) of Section 73AA of Land Revenue Act is breached. Therefore, the procedure of breach of condition is to be initiated. As mentioned in the sub section (4) of Section 73AA of Land Revenue Act, the government has laid down legal procedure to acquire the land when a tribal person sells or transfers land to a non tribal person without obtaining permission. The submission of the applicant is not admissible as the earnest money deed was executed and the property was transferred without obtaining permission of the competent authority. The procedure of breach of condition is to be initiated. As there is earnest money deed - transfer of possession, the application of the applicant is liable to be filed due to the aforesaid reason and the following order is passed.
: Order :
The application of the applicant Laxmiben Becharbhai Vasava to obtain permission, under Section 73AA of Land Revenue Act, to sell the land located at Mouje - Maktampur, Taluka - Bharuch, bearing S.No. 47/48, plot No. B/24/C, admeasuring 48.54 sq. mt., is filed. It is hereby ordered to Assistant Collector of Bharuch to initiate procedure of breach of condition as per rules."
[6] Learned Single Judge by recording the finding that order passed by the Collector is discretionary order, as such rejected the petition. However, the learned Single Judge permitted the applicant no.1 Page 5 of 10 C/LPA/1950/2017 JUDGMENT to apply to the Collector for restoration of possession, in view of provisions under clause 3(a) and (b) of Section 73(AA) of the Land Revenue Code. Further, it is observed by learned Single Judge that if such application is filed by applicant No.1 under clause 3(a) of Section 73(AA) of the Land Revenue Code, the Collector may look into the same in accordance with law and take an appropriate decision in that regard. [7] In this appeal, it is contended by learned Counsel for the appellants that the Collector has misconstrued the provisions of the Land Revenue Code and rejected the application without assigning valid reasons. It is submitted that in the agreement itself, there is recital that transfer would be effected only after obtaining permission from the Collector. Further, it is submitted that order passed by the Collector is also in contravention with Subrule(4) of Rule 57L of the Gujarat Land Revenue Rules, 1972. It is contended that the 1st appellant - tribal has acquired property from nontribal through her own means, further as she was in dire need of money to meet with the expenditure of marriage of her niece Rameshwari and further she has suffered paralytic stroke and not keeping good health, has applied for transfer of land in favour of 2nd appellant. It is submitted that instead of considering the application on the grounds stated above, the Collector, by raising technical ground, declined to grant permission to sale the property. It is contended that when there is recital in the agreement itself that plot would be Page 6 of 10 C/LPA/1950/2017 JUDGMENT transferred only after obtaining necessary permission is granted by the competent authority, the Collector should not have rejected the application on the ground that earnest money deed is executed by 1 st appellant.
[8] Learned Assistant Government Pleader Mr. Antani appearing for the respondents submitted that what is contemplated under Section 73(AA)(1) of the Land Revenue Code is prior permission of the competent authority to transfer land / plot held by tribal to non tribal, but in the instance case, 1st appellant has parted with possession in favour of 2nd appellant and thereafter, applied for grant of permission from the Collector. It is submitted that having regard to reasons recorded by the Collector and learned Single Judge, there are no grounds to interfere with the same. It is submitted that Rule 57L of the Gujarat Land Revenue Rules, 1972 deals with conditions for transfer of land under Section 73AA(1), as such, said Rule would not render any assistance in support of the case of the appellants. [9] At the first instance, it is to be noticed that permission is required to transfer plot owned by tribal to a nontribal as contemplated under Section 73AA(1) of the Gujarat Land Revenue Code, 1879. In this case, 1st appellant - tribal applied to Collector to transfer the land bearing Survey No.47/48, plot No.B/24/C admeasuring 48.54 sq.mtrs. Page 7 of 10
C/LPA/1950/2017 JUDGMENT situated at Village - Maktampur, Taluka - Bharuch stating that she was in dire need of money to meet with the expenditure towards marriage of her niece and also on the ground that she has suffered paralytic stroke. It is also the case of the appellant that she has acquired property from non tribal, as such, in view of Rule 57L of the Gujarat Land Revenue Rules, 1972, she is entitled to transfer the land.
[10] First appellant has fairly approached the competent authority by disclosing document which is described in the order passed by the Collector as earnest money deed. There is no such document with title earnest money deed, normal parlance, such document are normally titled as Agreement to sell. Agreement to sell is nothing but a contract to sale the property. It is also to be noticed that by virtue of State Amendment of Gujarat to the Registration Act, 1908, document of agreement to sell coupled with possession, is compulsorily registerable document. If the document is not registered, such document cannot be looked into.
[11] From the perusal of Subrule(4) of Rule 57L of Gujarat Land Revenue Rules, 1972 and having regard to claim of the appellants herein, we are of the view that the matter requires reconsideration by the competent authority in view of reasons stated in the application, whether to grant permission or not, as it is the case of 1 st appellant that Page 8 of 10 C/LPA/1950/2017 JUDGMENT she was in dire need of money to meet the expenditure of marriage of her niece and also on the ground that she has suffered paralytic stroke. In view of the reasons stated in the application, we are of the view that competent authority should have considered the application on merits, however, on perusal of the order passed by the Collector, it is clear that the Collector has rejected the application only on the ground that occupancy of the land is transferred to nontribal even before permission is granted and as such, the 1st appellant has committed breach of condition. In a transaction relating to immovable property, if possession is to be transferred so as to construe that the 1st appellant has transferred occupancy in favour of 2nd appellant, it can be only by way of valid document recognized under law. Further as learned Single Judge has not considered such aspects while disposing the petition filed by the appellants, we are of the view that it is a fit case to order to reconsider the mater by the Collector by setting aside the impugned order dated 01.03.2017 passed by the Collector and the order dated 05.10.2017 passed by the learned Single Judge.
[12] For the aforesaid reasons, the order dated 05.10.2017 passed by the learned Single Judge is set aside. Consequently, the order dated 01.03.2017 passed by the Collector, Bharuch stands quashed with a direction to the Collector, Bharuch to consider the application of the Page 9 of 10 C/LPA/1950/2017 JUDGMENT appellants afresh in accordance with law, more particularly, in view of provision under Subrule(4) of Rule 57L of the Gujarat Land Revenue Rules, 1972. Such application shall be decided within a period of six weeks from today. It is made clear that before disposal of the application, the Collector shall give opportunity of hearing to the appellants, by issuing advance notice.
[13] The Letters Patent Appeal is allowed as indicated above.
Consequently, Civil Application stands disposed of. No order as to costs.
Direct service is permitted.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) satish Page 10 of 10