Gujarat High Court
Harshadbhai Mansukhbhai Patel & 5 vs Secretary Revenue ... on 27 June, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/8739/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8739 of 2017
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HARSHADBHAI MANSUKHBHAI PATEL & 5....Petitioner(s)
Versus
SECRETARY REVENUE DEPARTMENT(APPEALS) & 1....Respondent(s)
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Appearance:
MR TEJAS P SATTA, ADVOCATE for the Petitioner(s) No. 1 - 6
MS NISHA THAKORE, AGP for the Respondent No.1
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 27/06/2017
ORAL ORDER
1 By this application under Article 227 of the Constitution of India, the applicants call in question the legality and validity of the order dated 12th August 2016 passed by the Special Secretary of the Revenue Department (Appeals), by which, the S.S.R.D. rejected the revision application filed by the applicants, thereby affirming the order passed by the District Collector, Tapi, dated 16th June 2014.
2 The facts of this case may be summarised as under:
2.1 The dispute pertains to a parcel of land bearing block No.164 admeasuring approximately two hectors situated at Mouje: Chorvad, Taluka: Songadh, District: Tapi. The land is of a restricted tenure land.
The provisions of Section 73AA of the Gujarat Land Revenue Code are applicable to the land in question. The petitioners Nos.2 to 6 being the tribals and the land came to be alloted to them.
Page 1 of 15HC-NIC Page 1 of 15 Created On Sun Aug 20 06:11:11 IST 2017 C/SCA/8739/2017 ORDER 2.2 It appears from the materials on record that the tribals decided to part with 5325 sq. mtrs. of land from the total land in favour of the petitioner No.1, who is a nontribal. It is not in dispute that a rent agreement came to be executed between the parties duly signed. The petitioner No.1 starting utilising the land for commercial purpose i.e. for his business purpose. The lease agreement executed between the parties is for a period of ten years. The tribals are to draw a rent of Rs.25,000/ (Rupees Twenty Five Thousand only) per year.
2.3 The transaction between the petitioner No.1 and the tribals came to the notice of the Collector, Tapi. The Collector passed an order forfeiting the land to the State Government as the lease agreement between the parties was in breach of the provisions of Section 73AA of the Gujarat Land Revenue Code.
2.4 Being dissatisfied with the order passed by the Collector, Tapi, the petitioner went before the S.S.R.D. by filing a revision application. The S.S.R.D. rejected the revision application holding as under:
"Considering the provisions under Section 3(16), 3(15), 3(14) and 3(13) of the Land Revenue Code, the applicant No.1 is a tenant and the applicants Nos.2 and 8 are the land owners. Considering the overall, this type of tenant cannot be treated as a land holder. Hence, the applicant No.1 is not to be treated as holder. For this type of land, as a holder of the land, the original land owner i.e. the Adivasi is to be treated as a farmer. In this manner, considering the aforesaid definitions of the Land Revenue Code, it cannot be considered as transfer of title as regards the disputed land. Therefore, it cannot be considered that there is a breach of Section 73AA of the Land Revenue Page 2 of 15 HC-NIC Page 2 of 15 Created On Sun Aug 20 06:11:11 IST 2017 C/SCA/8739/2017 ORDER Code. The Collector has not fully complied with the provisions of Section 73AA. Since we did not execute the registered deed, it cannot be taken as an evidence. The rent agreement is not supposed to be taken as an evidence. As the order passed by the Collector is totally illegal, it is requested to reject the same.
Upon considering the written arguments, submissions of parties and perusal of available record and impugned order of Collector, disputed land is running in joint name of seven persons namely Ratanji Bholabhai, etc. That said land is of Section 73AA and restricted new tenure land. In this regard a rent agreement is executed for the asphalt plant on a stamp paper of Rs.50/ in the year 2007 for ten years. No permission for the land in question is obtained for the use of the nonagricultural and also no permission is obtained for transfer of this land. As per the findings of the Collector, the land owner is Adivasi. They have alloted the said land to the nonAdivasi on rent agreement and looking to the sport inspection, there is clear breach of Section 73AA. Thus, the proceedings by the Collector are proper. Moreover, in this regard, the observations and the principles enunciated by the Hon'ble High Court in its decision in the LPA No.1522 of 2010 and SCA No.11616 of 2009 are required to be considered for the land of Adivasi. Considering the overall facts, the order of the Collector is just, proper and legal, no interference is warranted. Therefore, the following order is passed:"
3 Being dissatisfied, the applicants are here with this petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.
4 The following facts are not in dispute:
(i) The land in question is of a restricted tenure.
(ii) The provisions of Section 73AA of the Gujarat Land Revenue Page 3 of 15 HC-NIC Page 3 of 15 Created On Sun Aug 20 06:11:11 IST 2017 C/SCA/8739/2017 ORDER Code are applicable.
(iii) The petitioner No.1 is a nontribal, whereas the other petitioners are tribals.
(iv) A lease agreement dated 25th October 2007 came to be executed between the parties duly signed.
(v) The tribals parted with the possession of 5325 sq. mtrs. of land from the total two Hectors of land in favour of the petitioner No.1.
(vi) The petitioner No.1 started utilising the land for his business.
5 Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the authorities committed any error in passing the impugned orders.
6 Let me go back to the order of the Collector. The Collector, in his order, held as under:
"Upon considering the aforesaid facts, the case bearing registration No.JMN/73AA/Case Reg. No.08/14 notifying on Board on 16.04.2014, the parties are issued notice in prescribed formate of Annexure 1 to remain present for hearing on 13.05.2014 at 11:00 hours. On 13.05.2014, the learned advocate Shri Dharmeshbhai P. Patel appearing on behalf of the opponent has filed his Vakatnama. Thereafter, an next date of adjournment is given for remaining present on 10.06.2014. On 10.06.2016, the parties have submitted written arguments. The land owner and seller have given written submissions. As the parties do not want to proceed further, the matter is taken up for order. The parties have mainly made the following submissions:Page 4 of 15
HC-NIC Page 4 of 15 Created On Sun Aug 20 06:11:11 IST 2017 C/SCA/8739/2017 ORDER (1) The land owner Shri Pohlabhai Bholabhai Gamit and Ratanjibhai Bholabhai Gamit both residing at village: Chorvad, Taluka: Songadh, District: Tapi, in their written submissions, stated that the notice issued by Your Honour has been received. The land bearing Block No.164 admeasuring Hec. 28800 sq. mtrs. situated at Mouje: Chorvad, Taluka:
Songadh is of their joint ownership. They have been got heirship right over the said land and this land is of a restricted tenure under the provisions of of Section 73AA. From the said land, they have given the land admeasuring 5325 sq. mtrs. (paiki) to Shri Harshadbhai Manshukhbahi Patel residing at Surat on rent agreement for putting Ashalt plant for ten years, for which rent of Rs.25,000/ is fixed per year and the rent amount of two years has been paid to them. Due to lack of knowledge of laws, they have not obtained any permission for giving the land on rent.
(2) That the tenant of this land namely Harshadbhai Mansukhbhai Patel residing at 52, New Shaktivijay Society, Baroda Prestige, Varachha Road, Surat has filed a written reply on 13.05.2014, wherein he mainly stated that as regards the receiver of the Adivasi land on rent bearing Block No.164 paiki situated at Mouje. Chorvad, Taluka: Songadh and the beneficiary have been received notice under the Bombay Land Revenue Code, 1879. The parcel of land bearing Block No.164 admeasuring Hec. 2 8800 sq.mtrs. situated at Mouje: Chorvad, Taluka: Songadh is running in the joint names of total seven persons namely, Pohlabhai Bholabhai, Ratanjibhai Bholabhai, Kamiben Babubhai etc. This land is adjoining to Surat - Dhuliya Road. Ratanjibhai Bholabhai Gamit is managing this land as one of the land owners. The said land is of Advisi persons. This land is a new tenure under provisions of Section 73AA of the Land Revenue Code and Section 43 of the Tenancy Act. Ratanjibhai Bholabhai Gamit has alloted some parcel of land admeasuring 5325 sq. mtrs. paiki to me on rent of Rs.25000/ per year for ten years on rent agreement for Page 5 of 15 HC-NIC Page 5 of 15 Created On Sun Aug 20 06:11:11 IST 2017 C/SCA/8739/2017 ORDER the Ashphalt plant. That a rent agreement on a stamp paper of Rs.50/ has been executed on 25.10.2007. A copy of the rent agreement is given with the case papers which has been shown to me. There is a signature of myself and the land owner in the agreement. No prior permission is obtained from the competent authority before executing the rent agreement. At present the land is in my possession. The Ashphalt plant is there and at present the same is in close condition.
(3) The Mamlatdar, vide communication No.JMN/Reg. No.1/13 dated 25.11.2013, has sent the record of breach of conditions through the Deputy Collector, Vyara. That on considering the available record, the co occupant of the land namely Ratanjibhia Bholabhai has informed personally to the TalaticumMantri of the village: Chorvad, Taluka:
Songadh on 29.11.2013 that their land bearing Block No.164 situated at Mouje: Chorvad, Taluka: Songadh is of a restricted tenure land under Section 73AA. This land is adjoining to the National Highway Road. That the said land was given to Shri Harshadbhai Mansukhbhai Patel residing at Surat on rent of Rs.25000/ per year on rent agreement from 25.10.2007 for Ashphat Plant and that I am aware that no permission is obtained for nonagricultural purpose. In this regard, it is informed that he is agreed to pay the penalty amount to be fixed by the State Government. That statement is also supported by the Panchas.
Considering the aforesaid facts and the materials available on record, the agricultural land bearing Block No.164 admeasuring Hec. 2 8800 sq.mtrs. situated at Mouje: Chorvad, Taluka: Songadh is running in the joint name of seven persons namely, Pohlabhai Bholabhai, Ratanjibhai Bholabhai, Kamiben Babubhai, etc. This land is of a restricted tenure land under Section 73AA of the Land Revenue Code. They have executed a rent agreement on 25.10.2007 on two stamp papers of Rs.50/for Ashphat Plant. Upon perusal of rent agreement, the land in question is given to Page 6 of 15 HC-NIC Page 6 of 15 Created On Sun Aug 20 06:11:11 IST 2017 C/SCA/8739/2017 ORDER Harshadbhai Mansukhbhai Patel residing at 52, New Shaktivijay Society, Baroda Prestige, Varachha Road, Surat on rent of Rs.25,000/ per year for ten years. The land in question is being used for Ashphat Plant. No prior permission of any competent authority is obtained for the use of non agricultural and before executing the rent agreement, no permission of any competent authority is obtained under the provisions of Section 73AA of the Land Revenue Code, 1879. Upon perusal of the statements of the land owner, tenant of the land on rent agreement, the reports of the Mamlatdar of Songadh and the Deputy Collector of Vyara, it is revealed that the provisions under Sections (1), (4) of the Land Revenue Code have been violated. There is a provision under subsection (1) of Section 73AA of the Land Revenue Code provided that the Adivasi land cannot be transferred to any other person before obtaining prior permission of the Collector. In the present case, the land owner is a Adivasi. They have given their land to nonAdivasi on rent agreement for Ashphalt Plant for the use of non agricultural. Thus, the proceedings are initiated under subsections (4), (7), (8) of Section 73AA of the Code.
In view of the above, the following order is passed.
ORDER:
Since the cooccupant namely Ratanjibhai Bholabhai Gamit has given the land admeasuring 5325 sq. mtrs. (paiki) in respect of the land bearing Block No.164 admeasuring Hec. 28800 sq. mtrs. situated at Mouje:
Chorvad, Taluka: Songadh to Shri Harshadbhai Bholabhai Gamit for Ashphalt Plant on rent agreement by violating the provisions under Section 73AA of the Land Revenue Code, the land bearing Block No.164 admeasuring 5325 (paiki) in respect of the land Hec. 28800 sq. mtrs.has been vested to the Government without encumbrance and as per circular No. ADJ/102003/2632/J dated 18.03.2006 of the Revenue Department of the State, there is provision under subsection (7) of Section 73AA to Page 7 of 15 HC-NIC Page 7 of 15 Created On Sun Aug 20 06:11:11 IST 2017 C/SCA/8739/2017 ORDER impose the penalty of three times of the land value. As per Jantri of Mouje: Chorvad, the revenue rate of gamtal village is fixed at Rs.303/. Accordingly, Shri Harshadbhai Mansukhbhai Patel, residing at 52, New Shakti Vijay Society, Baroda Prestige, Varachha road, Surat, who has received this land on rent agreement, is ordered to pay the penalty of Rs. 48,40,425/ (In words Rupees Forty Eight lakh forty thousand four hundred twenty five only) towards three times of the value of land admeasuring 5325 sq. mtrs. at the rate of Rs. 303/ to the Government for the breach of subsections (1) and (4) of Sections73AA of the Land Revenue Code as per the aforesaid provisions under subsection (7) of Section 73AA of the Code. Order passed today i.e. on 16 June, 2014 with seal and signature."
7 The principal argument of Mr. Satta, the learned counsel appearing for the petitioners is that Section 73AA of the Gujarat Land Revenue Code talks about transfer of land from a tribal to nontribal. In the present case, according to him, there is no transfer of land because the tribals have only parted with the possession of the land on the strength of the lease agreement. The argument is that if the land would have been sold by a registered sale deed, then it could be said that the land has been transferred. Mr. Satta further submitted that the total area of land is about two Hectors, whereas the tribals have parted with only about 5325 sq. mtrs. of land and if that be so, then the entire land cannot be forfeited.
8 In such circumstances, Mr. Satta, the learned counsel appearing for the petitioners prays that there being merit in this application, the same be admitted.
Page 8 of 15HC-NIC Page 8 of 15 Created On Sun Aug 20 06:11:11 IST 2017 C/SCA/8739/2017 ORDER 9 On the other hand, this application has been vehemently opposed by Ms. Thakore, the learned Assistant Government Pleader appearing for the State. Ms. Thakore submits that no case is made out for issue of any rule in the matter. This petition deserves to be rejected summarily. Ms. Thakore submits that the word "transfer" in Section 73AA of the Code should not be given a strict interpretation, because if the argument canvassed by the learned counsel appearing for the petitioners is accepted, then the same will frustrate the very object of Section 73AA of the Code. Ms. Thakore submits that Section 73AA of the Code came to be enacted to protect the interest of the poor tribals.
10 According to Ms. Thakore, the word "transfer" should be understood in a wide sense so as to include both "transfer of title" as well as "transfer of possession".
11 Ms. Thakore seeks to rely upon few following decisions in support her submissions:
(i) Lajjashankar Keshavji Joshi vs. State of Gujarat [1985 (2) GLR 658]
(ii) Vasanjibhai Gokalbhai Patel vs. Deputy Collector, Songadh [1998(3) GLR 2139]
(iii) Dharamdas Thawerdas vs. Sorabji and others [AIR 1930 Sind 75]
12 In Lajjashankar (supra), a learned Single Judge of this Court, while considering a matter under the Gujarat Agricultural Lands Ceiling Act, 1960, observed as under:
Page 9 of 15HC-NIC Page 9 of 15 Created On Sun Aug 20 06:11:11 IST 2017 C/SCA/8739/2017 ORDER "(4) Where the application is rejected, the transfer or, as the case may. be, the partition shall be ignored in computing under this Act the area of surplus land, if any, held by such person.
Undersection8theimportantrelevantwordswhicharerequiredtobeconsidered are"any person has transferred whether by sale, gift, mortgage with possession, exchange, lease, surrender or otherwise or partition and land held by him". The different mode of transfer of immovable property under the Transfer of Property Act would be by way of sale, gift, mortgage, exchange lease, partition. Now, the Legislature by using the aforesaid phrase in Section 8 wanted to include all sorts of transfer seven by mentioning that transfer would include even "surrender or otherwise". This definitely indicates that the Legislature wanted to give the extended meaning so as to include transfer' by every means by which the possession of the property may be passed from one person to another. Under the Transfer of Property Act immovable property can be transferred by a sale, mortgage, lease, exchange or by way of gift. There is no other mode of transfer of immovable property prescribed under the Transfer of Property Act, yet under Section 8 of the Gujarat Agricultural Lands Ceiling Act the Legislature mentioned it that apart from sale, gift, mortgage, lease, exchange or partition if the property is transferred by surrender or otherwise it would be a transfer. This clearly indicates that the Legislature wanted to give wide meaning to the word 'transfer' and not the meaning which is given to it under the Transfer of Property Act.
4. Further, even if we refer to the proviso to Section 8(1), it amply bears that the Legislature wanted to include within the meaning word 'transfer' agreement to sell of land with possession. The said proviso states that where any transfer or partition of land is effected by a document required by law to be registered which however is not registered during the period specified therein, then unless the Court is satisfied on merits of the case that the document is bona fide document executed in fact before 24th January 1971 and that it is not ante dated as a result of collusion between the parties otherwise, in order to defeat the object of the amending Act of 1972, the Court shall not pass a decree in the suit filed for the grant of specific relief on the basis of any such document. This proviso, in my opinion, without any doubt includes that if there is any contract for sale, then also the Legislature considered it to be a transfer even though the said document was required to be registered. The Legislature was knowing it very well that there cannot be transfer of any immovable property without there being registered document, yet they have used the word 'transfer' or 'partition' of the land effected by a document required by law to be registered which is however not registered. This means that the Legislature thought that even if any person agrees to transfer the land by an unregistered document, even that type of transfer would be also included within the meaning of word 'transfer'. It is a well settled principle of interpretation of Statutes that the Court must deduce the intention of the Page 10 of 15 HC-NIC Page 10 of 15 Created On Sun Aug 20 06:11:11 IST 2017 C/SCA/8739/2017 ORDER Legislature from the words used in the Act. The word 'transfer' is not defined in the Agricultural Lands Ceiling Act. Normally as the word 'transfer' is a term of wellknown legal significance, under the Transfer of Property Act no other meaning could be given to the said word but at the same time when the Legislature has used it in a broader sense or wider sense, the word 'transfer' would include even agreement to sell wherein the possession of the land is parted in favour of purchaser.
5. Even under Section 7 of the Agricultural Lands Ceiling Act the Legislature has used the word 'transfer' in a broader sense. Section 7 provided that notwithstanding anything contained in any law for the time being in force, no land shall, after the appointed day, be transferred whether by way of sale (including sale in execution of a decree of a Civil Court or of an award or order of any other competent authority) or by way of gift. exchange, lease or otherwise, or subdivided whether by partition, family arrangement or otherwise except with the permission in writing of the Collector. This also indicates that the Legislature has used the phrases "lease or otherwise" and "partition or otherwise" even after mentioning all modes of transfer contemplated under the Transfer of Property Act and, therefore, this indicates that the Legislature wanted to cover all sorts of transfer of the land by which the possession of the land is transferred in favour of other persons. Even Section 9 of the Act indicates the same thing whereby it is provided that where after the appointed day, on account of gift, purchase, assignment, lease, surrender or any other kind of transfer inter vivos or by succession or partition, any land comes into the possession of any person, or any land held by any person ceases to be exempted land and in consequence thereof the total land held by such person exceeds the area which he is entitled to hold under Section 6, then
(i) if the acquisition of such excess land was otherwise than by succession or partition it shall be invalid and the excess land shall be forfeited to the State Government, and (ii) if the acquisition was by succession or partition or the excess was due to the land ceasing to be exempted land the excess land shall be deemed to be surplus land held by such person. This section also clearly shows that what is important is the acquisition of such land by either gift, purchase, assignment, lease, surrender or any other kind of transfer inter vivos and thereby if land comes into possession of any person, then the excess land shall be forfeited to the State Government. So the Legislature all throughout provides that if the possession of the land is transferred, then it would be a transfer.
6. This aspect is also further borne out from the object of incorporating amending Section 8 which is to prevent the land holders from making fictitious transfers either before or after the specified date so as to evade the provisions of the Act and frustrate the very object and purpose for which the Act had been passed. The wider meaning which I am giving to the word 'transfer' used in Section 8 is further borne out from the definition provided under Section 2(15) which defines the words "to hold land" as under:
Page 11 of 15HC-NIC Page 11 of 15 Created On Sun Aug 20 06:11:11 IST 2017 C/SCA/8739/2017 ORDER 2(15) "to hold land" with its grammatical variations and cognate expression means to be lawfully in actual possession of land as owner or tenant, as the case may be:
Provided that in the case of land mortgaged with possession:(a) it. it is not in the actual possession of the tenant, the mortgager shall be deemed to hold it as owner, and
(b) if it is in the actual possession of a person as a tenant thereof, such person shall be deemed to hold it as a tenant;
The whole emphasis in this section is "a person must be in lawful actual possession of the land either as an owner or a tenant". Now, if by an agreement to sell possession is parted in favour of the purchaser, owner would say that I am not in actual possession of the land even though legal ownership vests in him. Section 6 of the Agricultural Lands Ceiling Act provides that with effect from the appointed day no person shall be entitled to hold whether as owner or tenant or partly as owner and partly as tenant land in excess of the ceiling area subject to other subsections. As stated above, "to hold land" is defined to mean that a person must be in actual possession of the land as an owner or as a tenant. Therefore, the whole purpose and object would be defeated if it is held that 'transfer' contemplated under Section 8 of the Act would not include transfer of possession of land under an agreement of sale. Now, it is well settled that by an agreement to sell even if the possession of the land is handed over to the vendee, no interest in the property is created but at the same time under Section 40 of the Transfer of Property Act such contract creates an obligation annexed to the ownership of immovable property not amounting to an interest in the property but which obligation may be enforced against a transferee with notice of contract or a gratuitous transfer of the property. This aspect is considered by the Supreme Court in the case of Bai Dosabai v. Mathurdad AIR 1980 Supreme Court 1334. In paragraph 6 of the said judgment it has been held as under:
We do not wish to go in any detail into the question whether the English Equitable doctrine of conversion of reality into personality, is applicable in India. However, we do wish to say that the English doctrine of conversion or reality into personality cannot be bodily lifted from its native English soil and transplanted in statute bound Indian law. But, we have to notice that many of the principles of English Equity have taken, statutory form in India and have been incorporated in occasional provisions of various Indian statutes such as the Indian Trusts Act, the Specific Relief Act, Transfer of Property Act etc. and where a question of interpretation of such Equity based statutory provisions arises we will be well justified in seeking aid from the Equity source. The concept and creation of duality of ownership, legal and equitable, on the execution of an agreement to convey immovable property, as understood in English is alien to Indian Law which recognises one owner i.e. the legal owner: vide Rambaran Prasad v. Ram Mohit Hazra (1967) 1 Page 12 of 15 HC-NIC Page 12 of 15 Created On Sun Aug 20 06:11:11 IST 2017 C/SCA/8739/2017 ORDER SCR 293 : (AIR 1967 SC 744) and Narandas Karsondas v. S.A. Kamtam (1977) 2 SCR 341 : (AIR 1977 SC 774). The ultimate paragraph of Section 54 of the Transfer of Property Act, expressly enunciates that a contract for the sale of immovable property does not, of itself, create any interest in or charge on such property. But the ultimate and penultimate paragraphs of Section 40 of the Transfer of Property Act make it clear that such a contract creates an obligation annexed to the ownership of immovable property, not amounting to an interest in the property, but which obligation may be enforced against a transferee with notice of the contract or a gratuitous transferee of the property. Thus, the Equitable ownership in property recognised by Equity in England is translated into Indian law as an obligation annexed to the ownership of property, not amounting to an interest in the property, but an obligation which may be enforced against a transferee with notice or a gratuitous transferee.
Under Section 53 the transferee is also in a position to protect his possession of the land. Hence the interpretation given by the Gujarat Revenue Tribunal to the word 'transfer' used under Section 8 of the Act is, in my opinion, in no way warranted by the language of Section 8.
7. While considering the phrase "transfer the property" used in Order 21rule 102 of the Civil Procedure Code which provided that nothing in rules 98 and 100 shall apply to resistance or obstruction in execution of a decree for the possession of immovable property by a person to whom the judgment debtor has transferred the property after the institution of the suit in which the decree was passed or to the dispossession of any such person, the Madras High Court in the case of Kangasabhai v. Poornathammal A.I.R. 1947 Madras 458, had held that the 'words "transferred the property" should be understood in a wide sense so as to include both 'transfer of title' as well as 'transfer of possession'. The relevant discussion is in paragraph 6 which is as under:
(6) The only question, therefore, which remains is whether Rule 102 applies to the facts of this case. Has the judgment debtor "transferred" the property to the petitioner after the institution of the respondent's suit? He has certainly not executed any conveyance to the petitioner. Nor has he purported to transfer or assign any title to the property to the petitioner.
The only act which he has done is to quit and deliver possession of the property to the petitioner, after receipt of a notice from him to quit. In my opinion, having regard to the scope of the groups of sections beginning with Order 21, Rule 95, Civil P.C., the words "transferred the property" in Rule 102 should be understood in a wide sense as to include both 'transfer of title' as well as "transfer of possession". I would even go further and say that primarily it refers to transfer of possession whether accompanied by a purported transfer of title or not. In this view I do not agree with the lower Court in thinking that it cannot be said that the judgmentdebtor has transferred the property within the meaning of Rule 102. The judgment Page 13 of 15 HC-NIC Page 13 of 15 Created On Sun Aug 20 06:11:11 IST 2017 C/SCA/8739/2017 ORDER debtor, in surrendering possession to the petitioner, must be deemed to have "transferred" the property to him within the meaning of this rule. The petitioner would therefore, be not entitled to any relief under Rule 101.
8. Similar is the view taken by the Division Bench of the Madhya Pradesh High Court in the case of Dhansingh v. Sushilabai AIR 1968 Madhya Pradesh 229, while interpreting the expression "property cannot be transferred or otherwise dealt with by any party" used in Section 52 of the Transfer of Property Act. The Court held that delivery of possession of land would be otherwise dealing with the property which is prohibited under Section 52 of the Transfer of Property Act.
In the case of Kubra Bibi v. Khudaija Bibi A.I.R. 1917 Oudh 193. the Court has also considered Section 52 of the Transfer of Property Act and held that even agreement to sell would be also hit by the doctrine of lis pendens by holding that the creation of a contract, capable of specific performance, though not an alienation by itself, is a mode of dealing with the property pregnant with the very mischief which Section 52 of the Transfer of Property Act seeks to obviate. There the agreement was unregistered and ineffectual as a conveyance.
9. In view of the aforesaid discussion, in my view the narrow meaning given to the word "transfer" by the Gujarat Revenue Tribunal meaning transfer of land contemplated only under the Transfer of Property Act is not legal and proper".
13 Lajjashankar (supra) came to be considered in the case of Vasanjibhai (supra).
14 In Dharamdas Thawerdas (supra), a learned Single Judge of the Sind High Court observed as under:
"I agree with the plaintiff's contention that the prohibition contained in S.73A, Land Revenue Code is not confined to an absolute and out and out transfer of an occupancy but that it includes the transfer of an interest in the occupancy without the sanction of the Collector. In the circumstances the mortgage in favour of Chotirmal of a 4 annas share on 25th January 1918 appears to me to have been void and to have conveyed no right to the mortgagee."
15 Thus, in view of the case law discussed above, I have no hesitation in rejecting the contention of the learned counsel appearing for the Page 14 of 15 HC-NIC Page 14 of 15 Created On Sun Aug 20 06:11:11 IST 2017 C/SCA/8739/2017 ORDER petitioner that as there is no transfer of title, no breach under Section 73AA of the Code can be complained. The word "transfer" in Section 73AA of the Code should be understood in a wide sense so as to include both "transfer of title" as well as "transfer of possession". This interpretation will subserve the object with which Section 73AA of the Code came to be enacted. No error, not to speak of any error of law could be said to have been committed by the two authorities in passing the impugned orders. No interference is warranted in exercise of my supervisory jurisdiction under Article 227 of the Constitution of India.
16 In the result, this petition fails and is hereby rejected.
(J.B.PARDIWALA, J.) chandresh Page 15 of 15 HC-NIC Page 15 of 15 Created On Sun Aug 20 06:11:11 IST 2017