Gujarat High Court
State Of Gujarat Thro Ld.Principal ... vs Hasmukhbhai Chhaganbhai Patel on 21 September, 2021
Author: A.J.Desai
Bench: A.J.Desai, Nirzar S. Desai
C/CA/717/2021 ORDER DATED: 21/09/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 717 of 2021
In
F/LETTERS PATENT APPEAL NO. 6625 of 2021
With
F/LETTERS PATENT APPEAL NO. 6625 of 2021
In
SPECIAL CIVIL APPLICATION NO. 14484 of 2011
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
In
F/LETTERS PATENT APPEAL NO. 6625 of 2021
In
SPECIAL CIVIL APPLICATION NO. 14484 of 2011
==============================================================
STATE OF GUJARAT THRO LD.PRINCIPAL SECRETARY
Versus
HASMUKHBHAI CHHAGANBHAI PATEL
==============================================================
Appearance:
MR JK SHAH, AGP for the Applicant(s) No. 1,2
for the Respondent(s) No. 11,11.1,12,13,2,3
MR HRIDAY BUCH, ADVOCATE for DARSHAN M VARANDANI (7357) for the
Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No.
10,11.1.1,11.1.10,11.1.11,11.1.12,11.1.2,11.1.3,11.1.4,11.1.5,11.1.6,11.1.7,11.1.8,11.1.9,11.2,12.1
,12.2,12.3,12.4,13.1,13.2,13.3,14,15,2.1,2.2,2.3,2.4,3.1,3.2,4,5,6,7,8,9
UNSERVED EXPIRED (N)(9) for the Respondent(s) No. 3.3
==============================================================
CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 21/09/2021
ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.J.DESAI) Order in Letters Patent Appeal :
1. Caption Letters Patent Appeal arise from the oral judgement and order dated 01.05.2018 passed by learned Single Judge in Special Civil Application No. 14484 of Page 1 of 10 Downloaded on : Thu Sep 23 23:18:59 IST 2021 C/CA/717/2021 ORDER DATED: 21/09/2021 2011 whereas civil application has been filed under Section 5 of the Limitation Act to condone the delay of 738 days in preferring the Letters Patent Appeal and another civil application has been filed for staying the execution, implemention and operation of the order dated 01.05.2018 passed in Special Civil Application.
2. Instead of dealing with the civil application under Section 5 of the Limitation Act, with consent of the learned advocates appearing for the respective parties, Letters Patent Appeal is taken up for final hearing, which is listed along with the said application.
3. Mr. J.K.Shah, learned Assistant Government Pleader, states that the appellants do not want to bring any legal heirs of respondent Nos. 3.3 as his presence in not required particularly when the land in question has already been sold to contesting respondent No. 1 - original petitioner.
4. Rest of the respondents are served; however, except respondent No.1 - original petitioner, they have chosen not to appear in this Court. Respondent No.1 is represented by Mr. Hriday Buch, learned advocate assisted by Mr. Darshan Varandani, learned advocate.
5. Short facts arise from the record are as under:
5.1. That the land in question bearing Survey No.13/1 Page 2 of 10 Downloaded on : Thu Sep 23 23:18:59 IST 2021 C/CA/717/2021 ORDER DATED: 21/09/2021 admeasuring 708 sq.mtrs. and Survey No.13/2 admeasuring 708 sq.mtrs are situated at village Bharthana (Vesu), Taluka and District Surat. The original respondent Nos. 3 to 15 were the original owners of the land in question. Several sale deeds were executed qua both the land in question in favour of present respondent No.1 - original petitioner. When the land in question was purchased, no restrictions were recorded in the revenue recorded and ultimately, sale deed was registered on 30.12.2000.
5.2. Entry No. 832 regarding the restriction of Section 73(AA) of the Land Revenue Code (hereinafter referred to as 'the Code' for short) was mutated for the first time on 12.12.1991 that too subsequent to purchase of the land in question. Having come to know about mutation of such entry, respondent No.1 - original petitioner approached the Mamlatdar for deletion of Entry no. 832 in view of the fact that the land was already transferred. The original owners have supported the say of respondent No.1 before the Mamlatdar. Accordingly, on 22.12.2004, order was passed by the Mamlatdar deleting the Entry No.832. Accordingly, on 23.12.2004, Entry No. 1280 was mutated and was certified on 24.01.2005.
5.3. The District Collector issued notice on 15.09.2009 i.e. after a period of almost five years from the deletion of Entry No. 832 mutated on 22.12.2004 on the ground of breach of Section 73(AA) of the Code since the land in Page 3 of 10 Downloaded on : Thu Sep 23 23:18:59 IST 2021 C/CA/717/2021 ORDER DATED: 21/09/2021 question was transferred to non-tribal. The District Collector, by order dated 26.08.2010, set aside the order dated 23.12.2004 passed by the Mamlatdar, by which, Entry No.832 was deleted and Entry No.1280 was mutated. The said decision was challenged before the Special Secretary, Revenue Department by filing revision application, which came to be dismissed. Respondent No. 1 - original petitioned approached this Court by filing Special Civil Application No. 14484 of 2011, which was allowed relying upon the provisions of law and decision rendered by the Division Bench of this Court.
5.4. Hence, this Letters Patent Appeal.
6. Mr.J.K.Shah, learned Assistant Government Pleader appearing for the appellants, would submit that original owners were tribal and there is bar of transferring the land to non-tribal and the transaction itself is barred by law and therefore, the District Collector has rightly quashed and set aside the order of Mamlatdar, by which, restrictions have been lifted. The said order passed by the District Collector came to be challenged before the Special Secretary, Revenue Department. The Special Secretary, Revenue Department confirmed the order passed by the District Collector. He would submit that when the transaction itself is void and ab-initio, learned Single Judge ought to have considered the said aspect and ought not to have allowed the petition. He, therefore, would submit that the appeal may be allowed.Page 4 of 10 Downloaded on : Thu Sep 23 23:18:59 IST 2021
C/CA/717/2021 ORDER DATED: 21/09/2021
7. On the other hand, Mr. Hriday Buch, learned advocate assisted by Mr. Darshan Varandani learned advocate appearing for respondent No. 1 - original petitioner, has vehemently opposed this appeal. He would submit that there is provision under Sub-Section 4(B) of Section 73(AA) of the Code which provides that either tribal or his successor-in-interest can initiate proceeding within a period of four years from the date of such transfer of the property. He would submit that the tribal has not challenged the said transfer; however, the District Collector has taken suo-motu action after a period of almost five years. He would submit that this aspect came to be considered by the Division Bench of this Court in the case of Somabhai Sharubhai Gamit V. State of Guajrat and Ors. reported in AIR 2018 Gujarat 5 and therefore, learned Single Judge has rightly allowed the petition and quashed and set aside the order passed by the authorities below. He, therefore, would submit that the appeal is meritless and may be dismissed.
8. We have heard learned advocates appearing for the respective parties. It is true that the land in question was sold to non-tribal; however, Entry No. 832 posted by the concerned authority, which was mutated after execution of sale deed, came to be cancelled by the Mamlatdar on 22.12.2004 and accordingly, Entry No. 1280 was mutated and the same was certified on 24.01.2005. The Page 5 of 10 Downloaded on : Thu Sep 23 23:18:59 IST 2021 C/CA/717/2021 ORDER DATED: 21/09/2021 District Collector has taken the suo-motu action by issuing notice on 15.09.2009 i.e. after a period of four years and ten months. So far as the limitation period is concerned, learned Single judge has dealt with the said aspect and has observed in Paragraph Nos. 4 and 5 of the judgement, which read as under:
"4. As against this, the learned Assistant Government Pleader as well as the learned advocate for the private respondents resisted the present petition, however, they have fairly conceded the aforesaid proposition of law.
5. Regard being had to the submissions advanced and in the facts and and circumstances of the case and in consideration of the aforesaid decision rendered by the Division Bench of this Court as well as the provision of law, more particularly, Sub-section (4) of Section 73AA of the Code, in the opinion of this Court, the aforesaid decision squarely applies to the case on hand and hence, relevant portion of the same is extracted hereunder:
"11. Having heard the learned advocates appearing for the parties and having gone through the materials produced on record as well as the provisions on which reliance is placed by the learned advocates appearing for the respective parties, it transpires that the respondent No.3 has constructed the house on the plot allotted to him by the Co-Operative Housing Society. Non-agricultural permission was granted by the competent authority to the society. After construction of the house, the respondent No.3 executed the sale deed on 8.11.2002 in favour of the petitioner No.2. After a period of more than two years and seven months i.e. on 24.6.2005, the respondent No.3 submitted an application before the Collector for grant of Page 6 of 10 Downloaded on : Thu Sep 23 23:18:59 IST 2021 C/CA/717/2021 ORDER DATED: 21/09/2021 permission under the provisions of section 73AA of the Code. The Collector considered the provisions of the Code and thereafter recorded statements of the respondent No.3 as well as the petitioner No.2 and was of the opinion that before executing the sale deed in favour the petitioner No.2, the respondent No.3 has not obtained prior permission of the Collector and, therefore, there is violation of the provisions contained in section 73AA of the Code. He, therefore, passed an order of forfeiture of the property in question. If the aforesaid order is carefully examined, it is revealed that the said order came to be passed by the Collector on the application dated 24.6.2005 submitted by the respondent No.3 by which, the respondent No.3 sought permission to sell the property in question. No application was submitted by the respondent No.3 under the provisions of section 73AA(4) of the Code. It is further revealed that the Collector has not followed the procedure contemplated under sub-section (4) of section 73AA of the Code. At this stage, we would like to refer to provisions contained in section 73AA(4) of the Code, which reads as under:
Section 73AA. Restriction on transfer of occupancies of tribals to tribals or non-tribals.-
(1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) Where a tribal-
(a) in contravention of sub-section (1) of this section, or of subsection (1) of section 73A or of any other law for the time being in force, transfers his occupancy to any person other than a tribal (hereafter in this section and in section 73AB referred to as the non-tribal) at any time on Page 7 of 10 Downloaded on : Thu Sep 23 23:18:59 IST 2021 C/CA/717/2021 ORDER DATED: 21/09/2021 or after the date of commencement of the Bombay Land Revenue (Gujarat Second Amendment) Act, 1980 (Guj.37 of 1980). (hereinafter in this section referred to as the said date); or
(b) in contravention of sub-section (1) of section 73A or of any other law for the time being in force has transferred his occupancy to a non-tribal at any time before the said date, the Collector shall, notwithstanding anything contained in any law for the time being in force, either suo-motu at any time, or on a application made by the tribal transferor or his successor-in-interest at any time within three years from the said date or the date of such transfer, whichever is later, after issuing a notice to the transferee or his successor-in-interest as the case may be, to show cause why the transfer should not be declared void and after making such inquiry as he thinks fit, declare the transfer of such occupancy to be void and thereupon the occupancy together with the standing crops thereon, if any, shall vest in the State Government free from all encumbrances.
12. From the aforesaid provision, it is clear that if there is violation of sub-section (1) of section 73AA of the Code or any other law for the time being in force, at the time of transfer of the occupancy to the person other than a tribal, the Collector can suo motu initiate proceedings for forfeiture of the property or the Collector can take action on the basis of the application submitted by the tribal transferor within a period of three years from the date of transfer. It is further revealed that such action can be initiated after issuance of notice to the transferee or the successor in interest asking him to show cause why transfer should not be declared as void. However, from the facts discussed herein above, it is revealed that the Page 8 of 10 Downloaded on : Thu Sep 23 23:18:59 IST 2021 C/CA/717/2021 ORDER DATED: 21/09/2021 application was submitted by the respondent No.3 for grant of permission to transfer the property in question in favour of the petitioner No.2. However, no application was submitted by the respondent No.3 within the stipulated time limit for declaring the transaction as void nor the Collector has initiated suo-motu proceedings for declaring the transaction as void, as stated in subsection (4) of section 73AA of the Code. In that view of the matter, even if the contention of learned advocate, Mr. Qureshi appearing for the respondent No.3 that provision of section 73AA of the Code would be applicable to the constructed property is accepted, even then, the Collector has not followed the procedure prescribe under section 73AA(4) of the Code, thereby the Collector has committed an error while passing the impugned order dated 17.7.2008. The SSRD has also not considered the aforesaid important aspects of the matter and passed the impugned order dated 11.11.2016.
13. It is also required to be noted that in the meantime, the petitioner No.2 has also executed an Agreement to Sell in favour of the petitioner No.1 and the petitioner No.1 is in possession of the property in question since 2010 and the petitioner No.1 is a bona fide purchaser.
14. Thus, in the aforesaid facts and circumstances of the case, without going into further merits of the matter, we are inclined to entertain this petition. Accordingly, the impugned orders dated 17.7.2008 passed by the Collector and 11.11.2016 passed by the SSRD are hereby quashed and set aside. The petition is accordingly allowed. The respondent No.2-Collector is hereby directed to restore the possession of the property in question to the petitioner No.1 within a period of four weeks from today. Rule is made absolute."
Page 9 of 10 Downloaded on : Thu Sep 23 23:18:59 IST 2021C/CA/717/2021 ORDER DATED: 21/09/2021
9. Having heard learned advocates appearing for the respective parties and having considered the above- referred observations, we are in agreement with the aforesaid observations made by learned Single Judge while deciding the petition and provisions of law and therefore, we do not find merits in appeal. Hence, the appeal is dismissed as meritless.
Order in Civil applications :
In view of the order passed in Letters Patent Appeal, present civil applications do not survive. Accordingly, civil applications are disposed of.
(A.J.DESAI, J) (NIRZAR S. DESAI, J) F.S. KAZI.....Page 10 of 10 Downloaded on : Thu Sep 23 23:18:59 IST 2021