Gujarat High Court
Vallabhbhai Kalyanji Prajapati vs State Of Gujarat on 25 November, 2019
Equivalent citations: AIRONLINE 2019 GUJ 507
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/19035/2019 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19035 of 2019
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VALLABHBHAI KALYANJI PRAJAPATI
Versus
STATE OF GUJARAT
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Appearance:
MR MEHUL S SHAH, Sr. Adv. with MS AARTI S TIWARI(10667) for
the Petitioner(s) No. 1,2
for the Respondent(s) No. 2,3,4,6,7
MR BHARAT VYAS AGP for the Respondent(s) No. 1
MR MEHULSHARAD SHAH(773) for the Respondent(s) No. 5
NAJMUDDIN R MEGHANI(7834) for the Respondent(s) No. 5
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 25/11/2019
ORAL ORDER
1. Heard learned Senior Counsel, Mr. Mehul S. Shah assisted by learned advocate, Ms. Aarti Tiwari appearing for the petitioners and learned advocate, Mr. Mehul Sharad Shah appearing for the respondent no.5 - Caveator.
2. The facts of the case giving rise to filing of the present petition are as under, 2.1 One Lallubhai Chamarbhai was the sole owner of the land bearing Survey No.1710 (Old Survey No.249/2/paiki 2) admeasuring 06879 Sq.Mtrs. situated at Village : Chhiri, Taluka : Vapi, District : Valsad. It is submitted that late Shri Kalyanjibhai Durlabhbhai was Page 1 of 10 Downloaded on : Mon Nov 25 22:27:52 IST 2019 C/SCA/19035/2019 ORDER the sole owner of the land bearing Survey No.45 admeasuring 4 Acre and 35 Guntha situated at Village : Rata, Taluka : Vapi, District : Valsad.
2.2 In the year 1972, the said Lallubhai Chamarbhai and late Shri Kalyanjibhai Durlabhbhai entered into an agreement for exchange of the aforesaid land and based on the said agreement, the possession was exchanged between them. Thus from the year 1972, late Shri Kalyanjibhai Durlabhbhai came in possession of the land bearing Survey No.1710 situated at Village : Chhiri and Lallubhai Chamarbhai came in possession of other parcels of land. Thereafter, the sale deed was entered into qua the land situated at Village : Rata, whereas sale deed qua land situated at Village : Chhiri was pending. The houses are built on the land situated at Village : Chhiri and the petitioners are residing at House No.197/1.
2.3 In the year 2004, the agreement to sale was executed between the petitioners and the respondent no.5 for the land situated at Page 2 of 10 Downloaded on : Mon Nov 25 22:27:52 IST 2019 C/SCA/19035/2019 ORDER Village : Chhiri. However, the property in question was restricted land falling under Section 73AA of the Gujarat Land Revenue Code (hereinafter referred to as "Revenue Code") and the requisite permission was required to obtain from the competent authority and, therefore, the power of attorney was given by the respondent no.5 and his family members in favour of the petitioners.
2.4 Thereafter, the petitioners applied for the grant of permission and the competent authority vide order dated 13.07.2015, granted permission to sale the land in question. However thereafter, the respondent no.5 preferred an application before the respondent no.1 - SSRD and the matter was remanded back to the District Development Officer, Valsad. Thereafter, the permission was cancelled by the concerned respondent authority, against which, the petitioners filed Revision Application before the respondent no.1 - SSRD. The said Revision Application was rejected and, therefore, the petitioners have filed Special Civil Page 3 of 10 Downloaded on : Mon Nov 25 22:27:52 IST 2019 C/SCA/19035/2019 ORDER Application No.11648/2017 before this Court and the said petition is still pending. 2.5 Despite pendency of the aforesaid petition before this Court, the respondent - Deputy Collector has passed an order dated 16.03.2019 while exercising powers under Section 79A of the Revenue Code, by which, the petitioners are directed to pay fine of Rs.68,92,083/ within a period of 7 days and further direction is also given to the Mamlatdar, Vapi that the petitioners be removed from the land in question and, thereafter, peaceful possession of the land in question be handed over to the present private respondents.
2.6 The aforesaid order passed by the respondent
- Deputy Collector was challenged before the respondent no.1 - SSRD, who by an order dated 19.08.2019, rejected the said Revision Application. Therefore, this petition is filed.
3. Learned Senior Counsel, Mr. Shah has referred to the provision contained in Section 73AA as well as Section 79A of the Revenue Code. It is submitted Page 4 of 10 Downloaded on : Mon Nov 25 22:27:52 IST 2019 C/SCA/19035/2019 ORDER that once the petition being Special Civil Application No.11648/2017 is pending before this Court challenging the order passed by the respondent - SSRD in Revision Application No.14/2016, it was not appropriate on the part of the respondent authority to initiate proceedings for the breach of Section 73AA of the Revenue Code. It is also submitted that once the view is taken by the respondent - SSRD that the petitioners are not in occupancy of the tribal land then, it was not appropriate on the part of the respondent authority to initiate proceedings for the breach of the provision contained in Section 73AA of the Revenue Code. It is also submitted that even assuming that the petitioners are in illegal occupancy of the land in question even then, the Deputy Collector is not empowered to direct the Mamlatdar for taking over the possession of the land in question and to handover the peaceful possession of the land in question to the private respondent herein.
4. At this stage, learned Senior Counsel appearing for the petitioners submits under the instruction that the Mamlatdar has already informed the Page 5 of 10 Downloaded on : Mon Nov 25 22:27:52 IST 2019 C/SCA/19035/2019 ORDER petitioners to vacate the premises and hand over the peaceful possession of the land in question on or before 26.11.2019. It is, therefore, urged that appropriate orders may be passed.
5. On the other hand, learned advocate, Mr. Mehul Sharad Shah appearing for the respondent no.5 - Caveator submits that the petitioners are the private individuals and though the Revision Application was filed by the proposed Society along with the present petitioners, this petition is filed only by the petitioners and not by the proposed Cooperative Society. It is further submitted that the petitioners have not disclosed the fact of filing of Special Civil Suit No.519/2015, in which, they had prayed for specific performance of an agreement to sale. It is contended that the said civil suit has been dismissed by the concerned civil court in the year 2017, against which, the petitioners filed First Appeal No.2566/2017 before this Court and the Division Bench of this Court has also dismissed the said Appeal. It is further submitted that the petitioners were not in possession of the land in question till 2014 and, therefore, they preferred Page 6 of 10 Downloaded on : Mon Nov 25 22:27:52 IST 2019 C/SCA/19035/2019 ORDER the aforesaid civil suit, however thereafter, the petitioners have forcefully entered into the land in question and, therefore, when the respondent no.5 submitted an application before the Deputy Collector, he had rightly exercised the power under Section 79A of the Revenue Code and directed the petitioners to pay fine and to vacate the premises in question with further direction to handover the peaceful possession of the said land to the respondent no.5 and thereby no error is committed by the respondent - Deputy Collector. Learned counsel has placed reliance upon the provision contained in subsections (3) and (7) of Sections 73AA as well as Section 79A of the Revenue Code. It is also contended that the petitioners have not produced the agreement, which was alleged to have been executed in the year 1972. Learned counsel has also urged that this Court may not entertain the writ jurisdiction in favour of the petitioners, who are encroachers.
6. Having heard learned advocates appearing for the petitioners as well as the respondent no.5, prima facie it appears that it is the case of the petitioners that when the permission was granted Page 7 of 10 Downloaded on : Mon Nov 25 22:27:52 IST 2019 C/SCA/19035/2019 ORDER by the competent authority for the transfer of the land in question in favour of the petitioners, the said order was challenged by the respondent no.5 and, thereafter in a remand, the concerned authority has not considered the request for the transfer of the land. Against the order passed in Revision Application No.14/2016, the petitioners have filed Special Civil Application No.11648/2017, which is still pending. In the meantime, on the basis of the application given by the respondent no.5 before the Deputy Collector for taking action for the alleged violation of Section 73AA of the Revenue Code, the respondent - Deputy Collector passed impugned order on 16.03.2019. If the said order is carefully examined, it is revealed that the powers are exercised under Section 79A of the Revenue Code. It is the specific case of the petitioners that the respondent - Deputy Collector is not empowered to give direction to the Mamlatdar that the peaceful possession of the land in question is to be handed over to the present respondent no.5. It is the specific case of the petitioners that even assuming that the petitioners are in unauthorized Page 8 of 10 Downloaded on : Mon Nov 25 22:27:52 IST 2019 C/SCA/19035/2019 ORDER occupation of the land in question, they can be evicted, however, no direction can be issued to handover the possession of the land in question in favour of the respondent no.5.
7. As contended by learned Senior Counsel appearing for the petitioners that during the pendency of this petition, now the Mamlatdar has asked the petitioners to handover the peaceful possession of the land in question on or before 26.11.2019 and, therefore, if the impugned order passed by the respondent authorities are not stayed then, this petition would become infructutuious. Thus, the issue as to whether the Deputy Collector is empowered to give such direction for handing over possession to the petitioner while exercising power under Section 79A of the Revenue Code requires to be examined in this petition.
8. Therefore looking to the issue involved in the present case, the matter requires consideration.
9. Hence, following order, Notice returnable on 19th December, 2019. Learned advocate, Mr. Mehul Sharad Shah appearing for the respondent no.5 - Caveator waives service of notice.
Page 9 of 10 Downloaded on : Mon Nov 25 22:27:52 IST 2019 C/SCA/19035/2019 ORDER Adinterim relief in terms of Para No.8(C) is granted till next date of hearing and no coercive steps shall be taken against the petitioners pursuant to the impugned orders till next date of hearing.
Direct service for rest is permitted today.
Sd/ (VIPUL M. PANCHOLI, J.) Gautam Page 10 of 10 Downloaded on : Mon Nov 25 22:27:52 IST 2019