Gujarat High Court
Heirs & Lrs. Of ... vs Chunilal Bijalbhai Vasava & on 5 May, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/24902/2007 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 24902 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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HEIRS & LRS. OF DECD.NAGJIBHAILALLUBHAI PATEL & 1....Petitioner(s)
Versus
CHUNILAL BIJALBHAI VASAVA & 1....Respondent(s)
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Appearance:
MR. VIMAL M. PATEL, ADVOCATE WITH MR DHAVAL SHAH, ADVOCATE
for the Petitioner(s) No. 1 - 1.3 , 2
MR. MANAN MEHTA, AGP for the Respondent(s) No. 2
MS TANUJA N KACHCHHI, ADVOCATE for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 05/05/2017
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ORAL JUDGMENT
1. Heard Mr. Vimal M. Patel, learned advocate with Mr. Dhaval Shah, learned advocate for petitioner and Mr. Manan Mehta, learned AGP.
2. In the present petition, the petitioner has prayed, inter alia, that:
"6(B) Issue a writ of mandamus and/ or certiorari, and/ or any other writ, direction or order quashing and setting aside the impugned order Annexure : A passed by respondent no.2, and thereby affirm orders Annexure: C and F certifying the revenue entry no.629 dated 28.3.1995 (Annexure:D); and (C) Stay the execution and operation of the impugned order Annexure A pending admission, hearing and disposal of the petition; and (D) Grant exparte adinterim relief in terms of prayer (C) above; and (D1) Initiate proceedings against the respondent no.1 under section 193 of the Indian Penal Code, 1860 for deposing something on oath before a Court of Law which he had knowledge of being not true and is likely to cause prejudice and loss in cash as well as kind to the petitioners; and (D2) Award costs as well as exemplary costs to the petitioner in the facts and circumstances of the case."
3. So far as factual background is concerned it has emerged that the Respondent No.1 sold the said land to the petitioners, by agreement to sell dated 11.5.1060, handed over the possession of the land in question to the petitioners on the Page 2 of 17 HC-NIC Page 2 of 17 Created On Wed Aug 16 22:03:48 IST 2017 C/SCA/24902/2007 JUDGMENT same day.
3.1 Subsequently, in November, 1993, Deputy Collector, Land Reform No.8 & Tribal Subplan, Rajpipla, initiated proceedings under Section 73A read with Section 73AA of the Act.
3.2 In the said proceedings, the Deputy Collector passed order dated 8.11.1993 holding inter alia that the transaction was entered into and executed before 4.4.1961 and the purchaser being resident within radius of 8 km, provisions under Section 73AA of the Land Revenue Code will not be attracted and would not be applicable. In view of the said order, the proceedings came to be closed and the notice was withdrawn.
3.3 Thereafter, the transaction was entered into the revenue record and entry no. 629 was mutated in name of petitioners on 25.1.1995 in village Form No.6.
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3.4 It appears that after the said order dated
8.11.1993 was passed,the respondent no.1, after some delay, initiated Appeal proceedings in June, 1997 against the said entry No. 629 dated 25.1.1995 and against the petitioners. The Appeal was registered as RTS Appeal No. 4/98/798. The Deputy Collector, heard the parties and allowed the appeal vide order dated 28.9.1998 and directed that entry no. 629 should be canceled.
3.5 Aggrieved by the said order, the petitioners filed Appeal before the Collector, which was registered as Appeal No.7/9899. The Collector heard the parties and vide his order dated 29.9.1998, allowed the appeal and set aside the order passed by the Deputy Collector.
3.6 It appears that while above mentioned proceedings progressed before Deputy Collector and Collector, the respondent no.1 appears to have instituted certain proceedings against the order dated 8.11.1993 passed by the Deputy Page 4 of 17 HC-NIC Page 4 of 17 Created On Wed Aug 16 22:03:48 IST 2017 C/SCA/24902/2007 JUDGMENT Collector.
3.7 The proceedings instituted by respondent no.1 against the order dated 8.11.1993 was registered as Appeal No. 37 of 1997 by Secretary(Appeals).
3.8 The petitioners herein were impleaded as party opponent in the said proceedings.
3.9 However, the petitioners would plead that any notice about the proceedings was not served to the petitioners.
3.10 It appears that respondent no.1 had filed Revision Application No.37/97 on or around 1.5.1997 against the order dated 8.11.1993.
3.11 Thus, the said proceedings were instituted after delay of almost 4 years.
3.12 The Secretary(Appeals) considered the said
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Appeal and passed order on 30.08.2003.
3.13 It is pertinent to note that in the meanwhile, the proceedings before the Collector were conducted and nobody brought it to the notice of the Secretary (Appeals) that the proceedings before Collector were conducted and order was passed by the Collector.
3.14 The Secretary (Appeals,) probably, remained oblivious of the said proceedings and without taking into account the details related to the proceedings before the Collector, passed the order dated 30.08.2003 and remanded the case to the Deputy Collector.
3.15 In the remand proceedings, the Deputy Collector held and declared that the sale transaction was executed in breach of Section 73AA.
3.16 The Deputy Collector, upon such
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conclusion, also set aside the agreement between the parties i.e. petitioners and the respondent no.1.
3.17 Feeling aggrieved by the said decision, the petitioners herein preferred revision application before the Collector. The Collector heard the parties and rejected the Appeal NO.3/200506 filed by present petitioners. The Collector confirmed the order dated 30.12.2005 passed by the Deputy Collector.
3.18 Feeling aggrieved by the said order of the Collector, the petitioners preferred revision application before the Secretary (Appeals).
3.19 The Secretary (Appeals) heard the parties and passed order dated 20.2.2007 whereby the Secretary (Appeals) rejected the present petitioners' revision application and confirmed the order passed by the Deputy Collector and the Collector.
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4. In this background, the petitioners have taken out present petition.
5. So as to assail impugned order, learned advocate for the petitioners reiterated the contention raised at Para. No. D,E,F, G, G1 TO G4, which read thus:
"(D). That the honest representation in the facts and circumstances of the petition could never have been weighed against the petitioners by the respondent authorities, and ought instead ought to have regularised the transaction effected long back in 1960 with respect to the impugned properties under Annexure:1.
(E). That the Lower Authorities ought to have appreciated that following the order Annexure C, the petitioners had submitted to the competent authority and remitted further stamp duty of Rs.110/ on 28.3.1995 as applicable in the facts and circumstances of the case as directed, and such instance can not be reversed subsequently in the questionable proceedings to the detriment of the petitioner/ purchasers.
(F). That the Lower Authorities ought to have appreciated that the Revenue Entry No.629 (Annexure:D) was certified by the Mamlatdar, Dediapada on 28.3.1995, aggrieved by which the respondent preferred Appeal before the Deputy Collector, Rajpipla, and was set aside on 28.9.1998 (Annexure:E). The said order was further carried to the District Collector in Appeal Case no.7/9899 by the petitioners and the appeal was allowed on 2.6.1999 vide order Annexure F. That no further remedy has been availed by the respondent no.1 and the proceedings terminated in the facts and circumstances of the petition. That imposing further unending proceedings are illegal, unjust, capricious and bad at law and the impugned order Annexure: A is required to quashed and set aside and reversed. Page 8 of 17
HC-NIC Page 8 of 17 Created On Wed Aug 16 22:03:48 IST 2017 C/SCA/24902/2007 JUDGMENT (G) The Lower Authorities ought to have appreciated that no procedure prescribed preferring revision against order annexure:C to the respondent no.2, when appeal against the said order at the instance of the respondent no.1 was pending before the Deputy Collector, Rajpipla, which was subsequently allowed by order Annexure E on 28.9.1998. The proceedings, therefore, under respondent no.2 order Annexure H remanding the proceedings in absence of the petitioners is illegal, unjust, capricious andbad at law. The subsequent proceedings has totally forgotten the principles that no deterrent restrictions under S.73AA of the Bombay Land Revenue Code are applicable to the princely state of Rajpipla on 11.5.1960 when the agreement to sale and handling over peaceful vacant possession was entered into between the parties. Merely retaining revenue receipts in ones name cannot be only instance of forgetting other principles of handling over peaceful vacant possession. The subsequent proceedings and orders Annexures 'I', 'J' and 'A' are illegal, unjust,capricious and bad at law and are required to be quashed and set aside and reversed in the facts and circumstances of the petition.
(G1) That the lower Authorities ought to have appreciated that a person cannot be allowed to convert himself from his own deposition made on earlier occasion on oath committing perjury before a statutory authority. The copies of the deposition in remand case no. 73AA Remand01/04 is presented herewith at Annexure: L collectively including a copy of the Written Statement of the petitioners dtd. 4.10.2004 and a copy of the Panchnama drawn on site, in the facts and circumstances of this petition under Article 226 of the Constitution to quash and set aside the impugned proceedings prejudicing the right, title and interest of the petitioner. It also transpires on record that sometime on 21.3.1997 the respondent no.1 gave some reply (illegible) before the Circle Officer, Kakarpada and Talati & Secretary, Kundiamba, that he was paid some less amounts, and if such amounts are paid to him he does not desire to do anything. A person of such integrity who happened to be a member of the Legislative Assembly now aged more than 75 years threatens to dispossess the petitioners in near future therefore, interim relief pending admission, hearing and disposal of the petition is required to be granted, in the facts and circumstances of the petition.
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(G2) The Lower Authorities ought to have appreciated that the respondent no.1 is a seasoned politician and do not feel a pinch of shamefulness for telling lies after lies on record in judicial inquiry and proceedings on oath under the provisions of the section 73AA of the Bombay Land Revenue Code, 1887 and, therefore, notice of prosecution under section 193 of the Indian Penal Code, 1860 for perjury should be issued, in the facts and circumstances of the petition, for making a public person more responsible to his status, while quashing and setting aside the impugned order Annexure A with costs and exemplary costs also.
(G3) That even if the respondent no.1 were aggrieved by the agreement to sale Annexure:B, the only remedy available to him would be to approach a competent Civil Court and not the Revenue Authorities. As the possession was handed over in terms of the said agreement of Sale, the possession of the petitioners cannot be taken away, as the doctrine of ' part performance' applies and the possession of the petitioners cannot be taken away except by of a Decree of a Civil Court. The maxim possession handed over as part performance can be used as shield and not as a sword squarely applied to the present lies.
(G4) That the respondent no.1 had admitted during a statement on 28.9.1993 before the Deputy Collector, Land Project No.8, Rajpipla, that he had sold the land in 1960, subsequently also he had made similar admission. The moot question would be as to whether Respondent no.1 can make a volte face and now resile from his admissions made as above. In fact, it would further the ends of justice to prosecute him for the same for departure from a statement made on oath. It is crystal clear that the entire exercise is suffering from the vice of mala fides as the authorities have been over eager to oblige the respondent no.1.
(G5) The petitioners respectfully state that they have improved the land in question by spending heavily since 1960 and such belatedly and beyond reasonable time action and that too in fragrant violation of the land in malafide manner deserves to be struck down. "
6. Ms. Kachchhi, learned advocate for respondent no.1 opposed the contention by the petitioners Page 10 of 17 HC-NIC Page 10 of 17 Created On Wed Aug 16 22:03:48 IST 2017 C/SCA/24902/2007 JUDGMENT and supported the order passed by the Secretary (Appeals). She submitted that the transaction was executed in breach of Section 73AA as permission from competent authorities was not obtained before the sale of land.
7. I have considered rival submissions by learned advocates for petitioners and respondent no.1 and I have also considered material available on record, including above mentioned orders.
8. It is not in dispute that the petitioners is not a tribal.
8.1 At the same time, it is also not in dispute that the petitioner, at the relevant time, was agriculturist within radius of 8 km and it is also not in dispute that the transaction between the petitioners and the respondent no.1 was entered into and executed in May, 1960.
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8.2 Therefore, the petitioners would contend
that the transaction, in any case, does not fall within the purview of Section 73AA because for invoking the provision of Section 73AA the relevant date would be April, 1961 whereas the transaction was executed in May, 1960.
9. Besides this, it is also pertinent to note that, according to petitioner the transaction was executed by virtue of agreement to sell. 9.1 Final saledeed/ conveyance deed is undisputedly not executed between the parties. 9.2 It also appears that on examination of the document, authorities found that the Stamp duty was inadequate.
9.3 It is claimed that the land was sold for about Rs.990/.
9.4 Thus, the value of transaction of
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immovable property was more than Rs.100 and that therefore, provisions under Section 17 of the Registration Act would also come in picture. The petitioner would contend that in view of the fact the transaction was executed in 1960 the registration was optional.
9.5 The respondent no.1 would also contend that in any case, agreement to sell would not confer any right or title or interest in favour of the petitioner.
9.6 Whereas, the petitioner would contend that agreement to sell was with possession and that, therefore, possessionary rights were accrued to the petitioner.
9.7 Besides this, the petitioner would also contend that the dispute was raised after 14 years and that, therefore, plea of adverse possession was also available to the petitioner.
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10. Above mentioned contentions and aspects are mentioned only with a view to demonstrate the fact that the dispute on hand involves and raises various issues related to civil law which ought to have been and could have been decided by learned Civil Court and not the revenue authorities. Even the legality of the agreement could not have been decided by the Revenue authorities.
11. At the same time, the observation by the authorities in the impugned order reveal that the authorities have addressed and decided the issues related to civil law which can be decided only by learned Trial Court. The authorities have gone to the extent of canceling the agreement to sell which cannot be decided by Revenue authorities. The authorities acting under RTS proceedings or even under Land Revenue Code, could not have examined and decided the legality of agreement to sell, and could not have reached to the conclusion that the agreement to sell was illegal Page 14 of 17 HC-NIC Page 14 of 17 Created On Wed Aug 16 22:03:48 IST 2017 C/SCA/24902/2007 JUDGMENT and could not have canceled/ set aside the agreement to sell.
12. The petitioner would further contend that even if all issues were decided against the petitioner, in any case, the direction to hand over the possession to the respondent no.1 could not have been passed by the authority since such power is not conferred to the Deputy Collector or Collector acting under Section 73AA and order under Section 73AA of the Act or under Rule 108(6) of the Land Revenue Code.
13. From the order impugned in the present petition, it comes out that the above mentioned aspects and the issues arise therefrom have not been considered by the authorities while passing impugned orders.
14. Besides this, with regard to the limitation and delay are also not considered by the authorities. Moreover, foregoing discussion have Page 15 of 17 HC-NIC Page 15 of 17 Created On Wed Aug 16 22:03:48 IST 2017 C/SCA/24902/2007 JUDGMENT also brought out when the Secretary (Appeals) passed order dated 30.08.2003, he did not take into account the proceedings which were conducted by and concluded before the Collector by virtue of order dated 28.9.1998.
15. Above mentioned defects in the proceedings and the orders, rend the orders vitiated and justifies the request by petitioners that the proceedings deserves to be remanded.
16. In this view of the matter, following order is passed:
a. The impugned order dated 20.02.2007 passed by the Secretary (Appeals) is set aside. b. Consequently orders passed by the Deputy Collector and Collector also stand set aside. c. The proceedings are remanded to the Deputy Collector who shall pass fresh reasoned and Page 16 of 17 HC-NIC Page 16 of 17 Created On Wed Aug 16 22:03:48 IST 2017 C/SCA/24902/2007 JUDGMENT speaking order after granting opportunity of hearing to the petitioners and the respondent no.1.
d. The Deputy Collector will consider the facts involved in the case and the contentions by both the sides including the petitioners' contention that the provision under Section 73A and/ or 73AA is not attracted in present case and is not applicable, therefore, proceedings cannot be disturbed on the basis of the said provisions.
17. With the aforesaid clarification and direction, the petition is partly allowed. Rule is made absolute to the aforesaid extent.
(K.M.THAKER, J.) saj Page 17 of 17 HC-NIC Page 17 of 17 Created On Wed Aug 16 22:03:48 IST 2017