Gujarat High Court
Laxmiben Lallubhai Gamit & 7 vs State Of Gujarat & 2 on 7 October, 2015
Author: C.L.Soni
Bench: C.L. Soni
C/SCA/13023/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13023 of 2015
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LAXMIBEN LALLUBHAI GAMIT & 7....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
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Appearance:
MR RAJESH K SHAH, ADVOCATE for the Petitioner(s) No. 1 - 8
DS AFF.NOT FILED (N) for the Respondent(s) No. 1 - 2
GOVERNMENT PLEADER for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 3
MR. RONAK RAVAL, AGP for the Respondent(s) No. 1-2
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 07/10/2015
ORAL ORDER
1. The matter is taken up for final hearing and disposal. Hence, Rule. Learned AGP Mr. Ronak Raval waives service of rule for respondent Nos. 1 and 2. Learned advocate Mr. H.S. Munshaw waives service of rule for respondent No. 3.
2. By the present petition filed under Article 226 of the Constitution of India, the petitioners have challenged order dated 26.09.2013 at Annexure 'A' passed by the respondent No. 3 and the order dated 01.12.2014 passed by the Secretary, Revenue Department (Appeals).
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3. It appears that the petitioners who belong to Tribal Community applied to the respondent No. 3 to transfer the land under Section 73-AA of the Gujarat Land Revenue Code 1879 ("the Code"). Such application was rejected by the respondent No. 3 on two different counts one is that if the application was to be allowed, the petitioners will not be left with sufficient land to sustain themselves and that considering their income certificates, their income to maintain the families was not sufficient.
4. Such order has come to be confirmed by the Secretary, Revenue Department (Appeals) vide order dated 01.12.2014 in the revision application 01 of 2013 preferred by the petitioners.
5. Learned advocate Mr. Rajesh K Shah for the petitioners submitted that in fact, the lands for which the application was made by the petitioners under Section 73-AA was part of the private lands of the ancestors of the petitioners and it was not the land granted to the ancestors of the petitioners as tribal. Mr. Shah submitted that it was on account of the provisions of Section 73AA, prior permission is required when the tribal is desirous of transferring or alienating his land. Mr. Shah submitted that even after the proposed sale of the land, the petitioners would be left with sufficient to sustain themselves and Page 2 of 5 HC-NIC Page 2 of 5 Created On Fri Oct 09 01:43:29 IST 2015 C/SCA/13023/2015 ORDER even their income certificates clearly reveal that they have no financial constraints to maintain their families.
6. Learned AGP Mr. Ronak Raval submitted that alongwith the affidavit-in-reply, the circular of the Government dated 18.03.2006 is placed on record and in case when the application is made for transfer or alienation of the lands under Section 73AA of the Code in respect of the private lands of the tribal, such application is to be considered according to the guidelines provided in the said circular.
7. At this stage, learned advocate Mr. Shah submitted that the application of the petitioners was not considered in light of such guidelines, provided in the circular dated 18.03.2006 and without any good reasons, the application was rejected by the respondent No. 3.
8. Learned advocate Mr. H.S. Munshaw appearing for respondent No. 3 submitted that the application preferred by the petitioners was rejected after considering the extent of land to be left with the petitioners if permission to sell is granted and after considering the incomes stated in the certificate produced by them. Mr. Munshaw however, could not dispute that while deciding the application, the respondent No. 3 had not considered the resolution of the State Page 3 of 5 HC-NIC Page 3 of 5 Created On Fri Oct 09 01:43:29 IST 2015 C/SCA/13023/2015 ORDER Government dated 18.03.2006 issued to deal with the applications made under Section 73A and 73AA of the Code.
9. The Court, having heard learned advocates for the parties and having perused the resolution of the State Government dated 18.03.2006, finds that the respondent No. 3 decided the application of the petitioners without considering the said resolution. It is required to note that the lands for which the permission was sought under Section 73AA were private property of the ancestors of the petitioners and the petitioners have acquired interest therein by succession. The petitioners are tribal and therefore they are required to seek permission before transferring /alienating their lands. The application for transfer or alienation in respect of the private lands held by the petitioners was however required to be decided as per the resolution of the State Government dated 18.03.2006. That having not been done, the matter is required to be remitted to the respondent No. 3 for taking decision afresh on the application of the petitioners in consonance with above referred circular. The impugned orders are therefore required to be quashed and set aside.
10. For the reasons stated above, the petition is allowed in part. The impugned order dated 26.09.2013 at Annexure 'A' and order dated Page 4 of 5 HC-NIC Page 4 of 5 Created On Fri Oct 09 01:43:29 IST 2015 C/SCA/13023/2015 ORDER 01.12.2014 are quashed and set aside. The matter is remitted to the respondent No. 3 to decide the application of the petitioners afresh in accordance with law and as per the resolution dated 18.03.2006 of the State Government. The respondent No. 3 shall take decision afresh on the application of the petitioners within a period of six weeks from the date of receipt of this order. Rule made absolute to the aforesaid extent.
Direct service is permitted.
(C.L.SONI, J.) ajay gupta Page 5 of 5 HC-NIC Page 5 of 5 Created On Fri Oct 09 01:43:29 IST 2015