Gujarat High Court
Parakramsinh Narendrasinh Solanki & vs State Of Gujarat & 3 on 3 August, 2016
Author: Bela M. Trivedi
Bench: Bela M. Trivedi
C/SCA/5608/2000 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 5608 of 2000
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS.JUSTICE BELA M. TRIVEDI
==========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
PARAKRAMSINH NARENDRASINH SOLANKI & 1....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
==========================================================
Appearance:
MR H M JADEJA, ADVOCATE for the Petitioner(s) No. 1 - 2
MS JYOTI BHATT, AGP for the Respondent(s) No. 1 - 2
RULE SERVED for the Respondent(s) No. 3 - 4.2
==========================================================
CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI
Date : 03/08/2016
ORAL JUDGMENT
Page 1 of 9
HC-NIC Page 1 of 9 Created On Wed Aug 10 00:26:03 IST 2016 C/SCA/5608/2000 JUDGMENT
1. By way of present petition, the petitioners have challenged the order dated 06.01.2000 passed by the Deputy Secretary (Appeals) Revenue Department, in Revision Application No. SRD/LND/B/397/83, confirming the order dated 26.09.1983 passed by the Collector, Valsad, and the order dated 02.11.1982 passed by the Deputy Collector, Navsari.
2. In the instant case, the dispute relates to the land bearing Survey No. 41/1 admeasuring 18 gunthas, and survey No. 791 admeasuring 1 acre 23 gunthas at village Upsal, Taluka Vansda, District Navsari. One Chhima Kaliya who was the occupant of the said lands, had transferred the said lands to one Purohit Chhotabhai Mahchharam by a writing dated 25.06.1942, and the said Chhotabhai, in turn, had transferred the said lands to Narendrasinh Pravinsinh, i.e. father of the present petitioners as per the endorsement made below the Satakhat on 02.06.1943, and handed over the possession thereof to Narendrasinh. It is case of the petitioners that the name of Chhimabhai continued in the in the village Form No. 7/12. Thereafter, the father of the petitioners made an application to the Mamlatdar on 30.01.1970 for mutating his name alleging that he was in possession of the land in question since last 20 years. The Mamlatdar mutated his name in the record of right vide Entry No. 306 on 01.02.1970 (Annexure 'B'). According to the petitioners, thereafter, the name of their father continued in the revenue record, and he had also obtained a loan from bank creating charge over the said lands, in respect Page 2 of 9 HC-NIC Page 2 of 9 Created On Wed Aug 10 00:26:03 IST 2016 C/SCA/5608/2000 JUDGMENT of which the entry No. 331 was also made on 23.07.1971. Thereafter, Narendrasinh having expired, the names of petitioners were mutated by succession as per the entry No. 505 on 12.08.1880 (Annexure 'C').
3. It is further case of the petitioners that the Deputy Collector, Valsad suo moto initiated proceedings under Section 73-A of the Bombay Land Revenue Code (hereinafter referred to as 'the Code'), and his vide order dated 21.02.1978 held that the original owner Chhimabhai being Tribal, could not have transferred the land, and therefore the said transfer being invalid, the occupant Narendrasinh was liable to be evicted. Being aggrieved by the said order, the petitioners had preferred an appeal being Appeal No. CH/LND /Appeal/24/80 before the Collector, Valsad, who vide the order dated 26.06.1981 set aside the order dated 21.02.1978 passed by the Deputy Collector, and remanded the matter to the Deputy Collector for deciding it afresh. After the remand, the Deputy Collector vide the order dated 02.11.1982 (Annexure 'D') held that there was violation of provisions contained in Section 73-A of the said Code while making entry No. 306 on 01.02.1970, and therefore such transfer was declared as cancelled. It was further directed that the petitioners shall be evicted, and the lands in question would vest in the State Government. Being aggrieved by the said order, the petitioners had preferred an appeal being No. JMS/73AA/Appeal/1/83 before the Collector, who vide the order dated 26.09.1983 dismissed the said appeal, Page 3 of 9 HC-NIC Page 3 of 9 Created On Wed Aug 10 00:26:03 IST 2016 C/SCA/5608/2000 JUDGMENT and confirmed the order dated 02.11.1982 passed by the Deputy Collector (Annexure 'E'). The aggrieved petitioners, preferred a Revision Application being Revision Application No. SRD/LDN/B/397/83 before the S.S.R.D., who vide the order dated 06.01.2000 (Annexure 'F') dismissed the same, and hence, the present petition.
4. The bone of contention raised by the learned counsel for the petitioners is that the provision contained in the Section 73-A of the Code was not applicable to the land in question, which was situated at village Vansda, inasmuch as, as per the Land Revenue Department Record, the survey settlement of Vansda State had already taken place in the year 1942, which held the field even after 04.04.1961 when the Government issued the notification under Section 73-A of the Code. He has relied upon the decision of this Court in the case of Dhanabhai Bhikhabhai versus Rabubhai Narensinghbhai Naik & Ors. in Special Civil Application No. 1191 of 1974 which was followed in the case of Gomtiben widow of Bhakttibhai Khusalbhai Bhakt versus Deputy Secretary and Others in the Special Civil Applications No.8272 of 2000 with 8268 of 2000 decided on 01.02.2013. He also submitted that entry made in the year 1970 was sought to be revised by the Deputy Collector after an unreasonable period of 12 years, and therefore, also the entire proceedings initiated under Section 73-A of the Code were liable to be set aside. However, the learned AGP relying upon the order passed by the Collector Page 4 of 9 HC-NIC Page 4 of 9 Created On Wed Aug 10 00:26:03 IST 2016 C/SCA/5608/2000 JUDGMENT submitted that the order passed in the Special Civil Application No. 1191 of 1974 i.e. in the case of Dhanabhai Bhikhabhai (supra) was challenged in the Letters Patent Appeal, and that the provisions of Section 73-A were applicable to the lands in question.
5. In the instant case, it appears that the proceedings against the petitioners in respect of entry No. 306 made on 01.02.1970 mutating the name of Narendrasinh, father of the petitioners, were initiated by the Deputy Collector by registering the case in 1978 i.e. after 8 years of the said entry. Apart from the fact that there is nothing on record to suggest that the original occupant Chhimabhai Kaliya, in whose name the lands were shown in the revenue record was an Aadiwasi, it appears that the provisions under Section 73-A of the Code were initiated by the Deputy Collector after a period of 8 years, which cannot be said to be a reasonable period. The learned counsel for the petitioners has also relied upon the observations made in the case of Dhanabhai Bhikhabhai (supra) to submit that the survey settlements had already been taken place in Vansda State prior to its merger, and therefore, the provisions contained in Section 73-A of the Code would not be attracted. The relevant observations made in the said judgment, which has been followed in the case of Gomtiben widow of Bhakttibhai (supra), may be reproduced as under : -
"3. The merger of the Vansada State admittedly took place on 10-6-48 and the Land Revenue Code and other Acts of the Page 5 of 9 HC-NIC Page 5 of 9 Created On Wed Aug 10 00:26:03 IST 2016 C/SCA/5608/2000 JUDGMENT Bombay State had come to be made applicable to this merged territories with effect from 28-7-48. Soon thereafter, a question had arisen as to whether the survey settlement of the merged territories should not be deemed to be the survey and settlement effected under the Land Revenue Code and the then Govt. of Bombay in its Revenue Department had issued a Notification No. R. D.1611-B/49 dated 6-2-52, recognising very lastly inter alia as follows:-
"...... The survey settlements would however, remain unaffected and they must be deemed to have been effected under the Bombay Land Revenue Code.
Application of Sec.73-A would not therefore be feasible where survey settlements have already been introduced."
4. Therefore, in the year 1961, the State of Gujarat came to issue the notification under Section 73A making the ban of the said sub-section applicable to the area of the merged territory of the State of Vansada and at that time the State of Gujarat issued a resolution dated 5-4-61 by way of clarification and it is quoted in the Collectors order as follows:-
The ban on transfers of the occupancies imposed under Govt. notification No. LND.3961.41504-G dated 4-4-61 will apply to all scheduled areas in which survey settlement under Chapter 8-A (which has been replaced by Sec.103) of the Land Revenue Code has not been introduced. In some of the scheduled areas integrated from ex-princely states like Rajpipla and Banasada a survey settlement was introduced during the ex. States regime under the ex- States orders but this survey settlement is not deemed to have been done under Chapter 8-A of the Land Revenue Code, 1879 and Page 6 of 9 HC-NIC Page 6 of 9 Created On Wed Aug 10 00:26:03 IST 2016 C/SCA/5608/2000 JUDGMENT therefore, true scope of the Land Revenue Code is not yet exhausted so far as such areas of sec.73-A are concerned and the ban imposed under Govt. notification No. LND- 3961/41504-G dated 4-4-61 will apply to such areas also.
Mr. Naik as well as Mr. Takwani strongly relied upon this subsequent Government notification which is nine years younger than the Bombay Governments notification referred to herein above. The question is and the only question of importance that arises in this petition is whether those settlements of the erstwhile princely states can or cannot be deemed to have been effected under the corresponding provisions of the Land Revenue Code. If we turn to the Bombay Governments resolution dated 6-5-52 and also to the proviso to clause 5 of the Indian States (Application of Laws) order 1948, it appears clear that the repeal by this order of any enactment shall not affect the validity, liability etc. already acquired accrued or incurred, under State Laws. It is also further clear that by virtue of this proviso, the survey settlements already effected in the merged states under the corresponding laws will be saved. It is too late in the day now for the State of Gujarat to say in the year 1961 that those survey settlements cannot be deemed to have been made under the Land Revenue Code.
5. The second contention which was pressed very heavily into service by Mr. Naik was the statement made by the officer of the Land Record Department at the time of inquiry to the effect that the said survey settlement of the Vansada State was ad hoc. To me it does not appear clear whether this statement is made by this witness on the basis of some record or not. However, I am prepared to go with Mr. Naik in holding that such a statement might have Page 7 of 9 HC-NIC Page 7 of 9 Created On Wed Aug 10 00:26:03 IST 2016 C/SCA/5608/2000 JUDGMENT been there even in the record. To me it appears that this situation does not in any way improve the case of the respondents. As noted by me above, the survey seems to have been made in the Vansada State and settlement effected as back as in the year 1923 at any rate and the rates that are in vogue right from 1923 till this day cannot be said by any stretch of imagination ad hoc or temporary or by way of stopgap arrangement. If the record of the State bear such a word ad hoc it must have been employed there in the sense that it was not final and that it was liable to revision. It cannot be put that it was liable to revision. It cannot be put in contrast with the words original survey settlement. This is all that would be conceivably attributed to that solitary statement made by the officer of Land Revenue Department not on the basis of his personal information, but on what he might have derived from the record assumedly."
6. While following the afore stated decision, this Court in the case of Gomtiben widow of Bhakttibhai (supra) has observed that the survey settlements having been effected in the year 1923, such survey settlement would hold field beyond the period of 1961, and therefore, the Government notification dated 04.04.1961 issued under Section 73-A of the Code restricting the transfer of land would not be applicable to the said area. The learned AGP has failed to point out any contrary judgment in this regard, much less, that the said orders of Single Bench were set aside or reversed by the Division Bench.
7. Under the circumstances, without going into the Page 8 of 9 HC-NIC Page 8 of 9 Created On Wed Aug 10 00:26:03 IST 2016 C/SCA/5608/2000 JUDGMENT issue whether the petitioners hold any valid title in respect of the lands in question or not, the impugned orders deserve to be set aside only on the ground that the proceedings under Section 73-A of the Code have been initiated after an unreasonable period, and even otherwise, Section 73-A of the Code being not applicable to the lands in question, the violation thereof would not arise.
8. In that view of the matter, the impugned orders passed by the Deputy Collector, the Collector and the S.S.R.D. are hereby set aside. The petition stands allowed to the aforesaid extent. Rule is made absolute accordingly.
(BELA M. TRIVEDI, J.) Amar Page 9 of 9 HC-NIC Page 9 of 9 Created On Wed Aug 10 00:26:03 IST 2016