Gujarat High Court
Heirs Of Govindbhai Davjibhai Gamit vs State Of Gujarat & 4 on 17 January, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/12602/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12602 of 2016
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HEIRS OF 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 TIRTHRAJ PANDYA, ASSISTANT GOVERNMENT PLEADER for the
Respondent(s) No. 1 - 4
MS. KRUTI M SHAH, ADVOCATE for the Respondent(s) No. 5.1 - 5.2
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
Date : 17/01/2017
ORAL ORDER
1. Leave to amend the prayerclause so as to reflect the correct date of the impugned order is granted. The necessary amendment be carried out forthwith.
2. Heard Mr.Satyam Y. Chhaya, learned advocate for the petitioners.
3. It is submitted that the petitioners were granted a quarry lease in the year 2011. By the impugned order dated 22.06.2016, the Special Page 1 of 6 HC-NIC Page 1 of 6 Created On Sat Aug 12 12:16:25 IST 2017 C/SCA/12602/2016 ORDER Secretary (Appeals), Revenue Department ("SSRD"), has confirmed the order dated 29.04.2015 passed by the Collector, Surat, and directed that the land be returned to the State Government and if the petitioners are desirous of getting it back, they may make an application and it may be considered for the grant of the said land for agricultural purpose.
4. It is submitted that the petitioners are tribals and the partnership deed entered into by them in the year 2004 has never come into effect. In fact, the land has never changed possession and the occupancy and the possession of the petitioners has remained on the land throughout. The quarry lease has been granted to the petitioners after taking clearance from all concerned authorities, including the Deputy Collector.
5. That, the very fact that the petitioners have been granted the quarry lease for the land in question shows that the petitioners are in possession thereof. In view of the fact that the Page 2 of 6 HC-NIC Page 2 of 6 Created On Sat Aug 12 12:16:25 IST 2017 C/SCA/12602/2016 ORDER occupancy and possession of the petitioners over the land in question has not been transferred at any point of time, the provisions of Section 73AA of the Gujarat Land Revenue Code, 1879 ("the Code"), are not attracted at all.
6. That, suo motu proceedings have been initiated in the year 2011 on the basis of the entry of partnership in the year 2004, which is not permissible in view of the principles of law enunciated by several judgments of this Court and the Supreme Court, including The State of Gujarat v. Patel Raghav Natha And Others - 1969(2) SCC 187.
7. The petitioners are mining "Black Trap" stone on the land in question and have, till now, paid over more than Rs.1.5 crores to the State Government as royalty. The premise on which the land is sought to be taken away from the petitioners is not legally sustainable as there has been no breach of Section 73AA of the Code.
8. It is, therefore submitted that the petition be admitted and the petitioners be protected. Page 3 of 6 HC-NIC Page 3 of 6 Created On Sat Aug 12 12:16:25 IST 2017 C/SCA/12602/2016 ORDER
9. Opposing the petition, Mr.Tirthraj Pandya, learned Assistant Government Pleader, submits that the mining was not the original business of the petitioners, therefore, the petitioners executed a partnership deed. There has been a breach of the provisions of Section 73AA of the Code, therefore, the impugned orders have been rightly passed.
10. Ms.Kruti M.Shah, learned advocate for respondents Nos.5.1 and 5.2 has supported the submissions advanced by learned advocate for the petitioners.
11. Having heard learned counsel for the respective parties and upon perusal of the averments made in the pleadings of the parties as well as the impugned orders, it prima facie transpires that none of the authorities have examined the provisions of Section 73AA of the Code and ascertained, independently, whether the petitioners have committed a breach of the said provisions, necessitating the passing of the impugned orders, or not.
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12. The petitioners have been granted a quarry lease which subsists till date, for the land in question. It, therefore, prima facie points out to the occupancy and possession of the petitioners over the land in question.
13. The petitioners have submitted voluminous written submissions to the SSRD and cited as many as seventyeight judgments, none of which appear to have been dealt with in the impugned order.
14. Looking to the provisions of Section 73AA of the Code and the facts and circumstances of the case, this Court is of the view that the petitioners have succeeded in making out a case for the admission of the petition and grant of interim relief.
15. Hence, issue Rule, returnable on 20.06.2017.
16. Interim relief in terms of Paragraph9C is granted till the final decision of the petition.
17. Mr.Tirthraj Pandya, learned Assistant Government Pleader, waives service of notice of Rule for Page 5 of 6 HC-NIC Page 5 of 6 Created On Sat Aug 12 12:16:25 IST 2017 C/SCA/12602/2016 ORDER respondents Nos.1 to 4.
18. Ms.Kruti M.Shah, learned advocate, waives service of notice of Rule for respondents Nos.5.1 and 5.2.
19. The observations made in this order are tentative in nature and may not be construed as an expression of final opinion on any aspect.
(SMT. ABHILASHA KUMARI, J.) sunil Page 6 of 6 HC-NIC Page 6 of 6 Created On Sat Aug 12 12:16:25 IST 2017