Gujarat High Court
State Of Gujarat & 3 vs Pratimaben Gopaldas Desai on 20 August, 2014
Author: Ks Jhaveri
Bench: Ks Jhaveri, A.G.Uraizee
C/LPA/596/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 596 of 2004
In SPECIAL CIVIL APPLICATION NO. 5801 of 1991
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE KS JHAVERI Sd/-
and
HONOURABLE MR.JUSTICE A.G.URAIZEE Sd/-
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1 Whether Reporters of Local Papers may be allowed to see the Yes
judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the judgment ? No
4 Whether this case involves a substantial question of law as to the No
interpretation of the Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil judge ? No
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STATE OF GUJARAT & 3....Appellant(s)
Versus
PRATIMABEN GOPALDAS DESAI....Respondent(s)
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Appearance:
MS.NISHA THAKORE, AGP for the Appellants No. 1 - 4
SERVED BY AFFIX.-(R) for the Respondent No. 1
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CORAM: HONOURABLE MR.JUSTICE KS JHAVERI
and
HONOURABLE MR.JUSTICE A.G.URAIZEE
Date : 20/08/2014
ORAL JUDGMENT
(PER : HONOURABLE MR.JUSTICE KS JHAVERI)
1. By way of this appeal, the appellants are challenging the order passed by the learned Single Judge dated 07.02.2003 in Special Civil Application No.5801 of 1991, whereby the learned Single Judge allowed the petition filed by the respondent original petitioner.
Page 1 of 6C/LPA/596/2004 JUDGMENT
2. Though served none appears for the respondent original petitioner.
3. The briefs facts of the case are that the Deputy Collector, original respondent No.4 granted permission on 29.09.1984 keeping in mind the instructions issued by the State Government vide circular dated 23.03.1982 for granting sanction under Section 73AA of the Code. The said order was set aside by the respondent No.2 by order dated 08.10.1990. Being aggrieved, the respondent-original petitioner preferred the Special Civil Application No.5801 of 1991 before this Court and the learned Single Judge, after hearing learned advocates for both the parties, allowed the petition by order dated 07.02.2003. Hence, the present appeal.
4. We have heard learned AGP Ms.Nisha Thakore for the appellants. It is contended by learned AGP Ms.Thakore that the power to grant permission under Section 73AA of the Code is vested only with the Collector and not with the Deputy Collector and hence, permission granted by the Deputy Collector, by order dated 29.09.1984, was illegal and without authority of law. She therefore, submitted that the order passed by the respondent-authority is just and proper and requested to allow this appeal by setting aside the impugned order passed by the learned Single Judge.
Page 2 of 6C/LPA/596/2004 JUDGMENT
5. The learned Single Judge, in paras 8 to 11 of the impugned judgment, has observed as under:
"8) Mr.Vyas has reiterated all these submissions which are made in the petition, as well as made before the respondent No.2 in response to the show cause notice and at the time of hearing of the matter. He has further stated that there is no infirmity in the order passed by the respondent No.4 while granting the permission under Section 73AA of the Code, as all the conditions laid down therein were satisfied. He has further submitted that the respondent No.4 was duly vested with the powers, on the basis of the notification issued by the State Government and there was no justification to disturb the said order on expiry of five years and he has relied on the decision of this Court reported in the case of Patel Maganbhai Kesurbhai Since Deceased through His Heirs v. Bhogilal Punjabhai Vasava & ors. XXXIX (2) GLR, page 961, wherein this Court has in detail discussed this issue and come to the conclusion that even in case when no permission was obtained by the original land owners for sell and transfer of the land, the same can be obtained subsequently and for that purpose, the matter was remanded to the authorities. The following observations made by this Court are relevant for the purpose of deciding the issue involved in the present matter."
""The petitioner has changed its position or to be more precisely, the respondent No.5 has permitted the petitioner to change its position after purchase of the land in dispute. The delay in such matters in initiation of the proceedings for declaration of the sale deed to be invalid under the provisions of Sec. 73AA of the Code is to be taken seriously and is fatal. The respondents by their inaction or omission may be deliberate or bona fide have permitted the petitioner to settle on the land and in fact he has settled on the land. Silence of the concerned authorities in such matters for three years is a serious matter in a case where the party, the transferee has changed its position. It is also not on the record of this Special Civil Application that the petitioner was not a bona fide purchaser. The doctrine of bona fide purchaser may not be strictly complied to the sale transactions of the nature as prohibited under Sec. 73AA of the Code but still while examining the question of delay in initiation of the proceedings for cancellation of the sale in the matter this fact may be a relevant fact. What Sec. 73AA of the Code says that the occupancy of a person belonging to any of the Scheduled Tribe shall not be transferred to any person without previous sanction of the Collector. So the transfer is not totally prohibited but it is permissible with the previous sanction of the Collector. That sanction has not been taken in the present case but in the facts of the present case and particularly the Page 3 of 6 C/LPA/596/2004 JUDGMENT fact that the petitioner has raised the construction on the land and the proceedings have been initiated after three years of the sale deed, the Court considers it to be appropriate to send the matter to the Collector to consider the question of grant of post-facto sanction to the sale transaction of the land. The respondent Nos. 1 to 4 to whom this land was belonging have not objected to the sale nor they have come up with a case that they have been exploited and that they now want the land for them. This course thee Court is adopting for the reason that the State Government, its officers and functionaries are in fact responsible for all these transactions as they have not any check or vigilance in these matters as well as for the reason that there is a delay of three years in initiation of the proceedings under Sec. 73AA of the Code. The respondent- State, its officers and functionaries have permitted the petitioner by necessary implication to raise the construction and now if at this stage he is ordered to be ousted from the land and the house standing thereon then it will not be reasonable. The sale transaction is of the year 1981 now we are in the year 1997. This Court has protected the petitioner by grant of interim relief also.""
9) Mr.Bukhari, learned AGP has supported the order passed by the respondent No.2 and submitted that he has rightly cancelled the permission granted by the respondent No.4 under Section 73AA of the Code. He has further submitted that the petition suffers from infirmity of misjoinder of parties, as the original land owners are not joined as parties in the proceedings. He has further submitted that since the Deputy collector, the respondent No.4 was not vested powers of granting permission under Section 73AA and yet the said permission was granted by him, the order passed by him is deserved to be quashed and set aside.
10) He has further submitted that by Notification dated 30 th October, 1984 limited powers were given to the respondent No.4 by the respondent No.3 and hence under the guise of the Notification the respondent No. 4 should not have granted the permission under Section 73AA of the Code. In any view of the matter, it is contended that the order passed by the respondent No.2 is just and proper and challenge to the said order made by the petitioner in present petition does not call for any interference by this Court.
11) After having heard the learned advocate Mr.Vyas appearing for the petitioner and Mr.Bukhari, learned AGP appearing for the respondent and after having gone through the papers and documents on record and also after having considered the decision cited by Mr.Vyas, I am of the view that the respondent No.2 is not justified in cancelling the order passed by respondent No.4. First of all the suo motu powers are exercised by the respondent No.2 after about the lapse of period of more than five years, which cannot be said to be reasonable, keeping in mind the settled legal position. Secondly, the respondent No.4 was vested with the powers of granting permission under Section 73AA of the Code and while exercise of that power, if the permission is granted, neither original land owner nor the Page 4 of 6 C/LPA/596/2004 JUDGMENT purchaser should be at fault and on that count such a permission cannot be withdrawn subsequently. Thirdly, the decision of this Court in the case of Maganbhai Kesurbhai (Supra) clinches the whole issue and even in the case where no permission is granted, the Court has thought it fit to give directions to the authorities to grant such permission and matter was remanded for the purpose. The petitioner has made out a case before the authorities and before this Court also that all the conditions, which are laid down are satisfied and there is no irregularity or illegality in granting permission. Simply because the original land owners are not joined as parties in the present proceedings, the petitioner cannot be denied the protection of his rights. Even otherwise no grievance was made since 1992 by the original land owners before any authority. Thus, taking overall view of the matter and after considering the entire records, I am of the view that order passed by the respondent No.4 is just and proper and there is no reason for the respondent No.2 to disturb the said order. This Court has, therefore, found sufficient substance in the petition and order passed by the respondent No.2 is hereby quashed and set aside and the order passed by the respondent No.4 is hereby restored.
The present petition is, therefore, allowed. Rule is made absolute with no order as to costs."
6. Having gone through the record of the case, it appears that the petitioner was granted permission under Section 73AA by respondent No.4 on 29.09.1984, which order was taken in suo motu revision vide notice dated 16.10.1989 i.e. after a period of more than five years. In our opinion, it was not open to respondent No.2 to exercise the powers of revision after a gross delay of more than five years. We are fortified in our view by the principle rendered by this Court in the case of Rajul Co-operative Housing Society Ltd. V. State of Gujarat reported in 1984 GLH 968. Further we also find that respondent No.4 herein is vested with the powers under Section 73AA of the Act.
Learned AGP was not in a position to point out that the powers exercised by respondent No.4 were in any manner, illegal or without any authority of law and therefore, the submission that the order of Page 5 of 6 C/LPA/596/2004 JUDGMENT September, 1989 is bad-in-law is devoid of any merits.
7. Considering the facts and circumstances of the case and the previous of the Act, we are of the view that the learned Single Judge has rightly set aside the notice issued by the appellant No.2 authority and restoring the order passed by appellant No.4. We are in complete agreement with the reasonings given by and the findings arrived at by the learned Single Judge and hence, find no reasons to entertain this appeal.
8. Under the circumstances this appeal fails and the same is hereby dismissed. No costs.
Sd/-
(K.S.JHAVERI, J.) Sd/-
(A.G.URAIZEE,J) dharmendra Page 6 of 6