Gujarat High Court
Sadabhai Hukambhai Bhil vs State Of Gujarat on 7 June, 2021
Author: Vaibhavi D. Nanavati
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/LPA/1269/2019 ORDER DATED: 07/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1269 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 87 of 2003
With
CIVIL APPLICATION (FOR BRINGING HEIRS) NO. 1 of 2021
In
R/LETTERS PATENT APPEAL NO. 1269 of 2019
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
In
R/LETTERS PATENT APPEAL NO. 1269 of 2019
=======================================================
SADABHAI HUKAMBHAI BHIL
Versus
STATE OF GUJARAT
=======================================================
Appearance:
MR VD PARGHI(568) for the Appellant(s) No. 1
MR CHINTAN DAVE, AGP for the Respondent(s) No. 1,2,3,4
MR NK MAJMUDAR(430) for the Respondent(s) No. 5
=======================================================
CORAM: HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 07/06/2021
ORAL ORDER
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. This appeal under Clause 15 of the Letters Patent is at the instance of the respondent No.5 of a writ application and is directed against the judgment and order passed by the learned Single Judge of this Court in the Special Civil Application No.87 of 2003 dated 4.9.2018, by which, the learned Single Judge allowed the writ application of the writ applicant and quashed and set aside the order Page 1 of 7 Downloaded on : Sat Jan 15 03:50:32 IST 2022 C/LPA/1269/2019 ORDER DATED: 07/06/2021 dated 3.4.2002 (5.6.2002) passed by the Collector and also the order dated 30.11.2002 passed by the Secretary (Appeals).
2. The appellant (original respondent No.5) mortgaged the land in question at village Juni Sarotari with the writ applicant - respondent No.5 herein on 11.07.1976 for Rs.25,000/-. Thereafter, the said land came to be purchased by the writ applicant - respondent No.5 herein by a registered sale deed in the year 1986. The Deputy Collector passed an order of granting permission for the said transaction. The present appellant preferred an application belatedly in the year 1999 on the basis of which the Collector issued notice to the writ applicant dated 16.08.1999 on the ground that the entry No.268 and 329 are required to be re-examined as the said entries were in breach of provisions of Section 73A and thereafter, Section 73AA of the Bombay Land Revenue Code.
3. Mr. V. D. Parghi, the learned counsel appearing for the appellant (original respondent No.5) and Mr. N. K. Majmudar, the learned counsel appearing for the respondent No.5 (original petitioner) have not been able to join the video conference, when the matter was called out and taken up for hearing. We waited quite for sometime for both the Page 2 of 7 Downloaded on : Sat Jan 15 03:50:32 IST 2022 C/LPA/1269/2019 ORDER DATED: 07/06/2021 learned counsel to join the video conference.
4. In the case on hand, the learned Single Judge, while allowing the writ application has in paragraphs 9 to 13 has observed as under :-
"9. In view of the rival submissions, it is required to be considered whether the present petition deserves consideration.
10. As could be seen from the background of the facts, it is not in dispute that the transaction of mortgage and thereafter sale had taken place with the knowledge and consent of the respondent No.5. The permission was also given by the Deputy Collector in 1981 i.e. before the Section 73AA was brought into force by way of amendment in the Code. However, the moot question is whether the transaction can be said to be in contravention of Section 73AA of the Code and whether it was justifying the exercise of suo-motu powers after such a long lapse of time. A close look at the record would suggest that respondent No.5 having mortgaged the property, and thereafter, entered into a transaction of sale after the permission from the Deputy Collector, has not raised any objection till the year 1999. It is only in the year 1999, he made an application on the basis of which the suo- motu powers are exercised for reconsideration of the entire transaction and the entry made on the basis of the transaction including the registered sale deed in favour of the petitioner. There is no dispute that the provisions of Section 73AA are brought with an object of protecting the interest of the Scheduled Tribe and such transactions are made subject to the prior approval. However, the conduct of respondent No.5 is also Page 3 of 7 Downloaded on : Sat Jan 15 03:50:32 IST 2022 C/LPA/1269/2019 ORDER DATED: 07/06/2021 required to be examined that after the transaction in 1981 or thereafter in 1986, for about 13 years he does not make any grievance to any forum or any place or authority. For the first time, in the year 1999, he makes an application on the basis of which the suo-motu powers are exercised and at the same time, the petitioner having altered his position and spent the amount for the development of the land, now cannot be questioned about his right on the ground of Section 73AA. Again, there is no justification or explanation as to why such time was allowed to pass till the application was made by respondent No.5. In the year 1999, when the transaction had already taken place, there is no justification. It is in this background, the Court has to look not only at the provisions of Section 73AA, but also has to consider the general principle of estoppel as well as the proprietary for exercise of such power beyond reasonable period.
11. Therefore, without entering into further details, the respondent No.5 himself entered into transaction and did not raise any objection till the year 1999, which would reflect about his own conduct. Therefore, even accepting that Section 73AA, which has been brought into force with such an object of protecting the interest of Scheduled Tribe, it has to be considered with the background of the facts and also whether such suo-motu power could be exercised at any time or within a reasonable period. The much emphasis given on Section 73AA(4) that it provides for exercise of such power "at any time" has to be read in the context of the Hon'ble Division Bench of this Court as well as other pronouncements have made it clear that such power has to be exercised within a reasonable period.
12. What could be said to be reasonable period would depend upon the facts of the Page 4 of 7 Downloaded on : Sat Jan 15 03:50:32 IST 2022 C/LPA/1269/2019 ORDER DATED: 07/06/2021 case and it has to be considered in light of the observations made by Hon'ble Division Bench in a judgment in case of Chandulal Gordhandas Ranodriya & Ors. V/s. State of Gujarat & Ors., reported in 2013 (2) GLR 1788.
13. Therefore, in light of the aforesaid observations and position of law, the impugned order passed by the Secretary (Appeals) confirming the order passed by the Collector dated 03.04.2002 (05.06.2002) cannot be sustained."
5. We have noticed that the present appellant having mortgaged the property and thereafter having entered into a transaction of sale after due permission granted by the Dy. Collector and having not raised any objection till the year 1999, which reflects conduct of the appellant and the Dy. Collector exercised suo-motu power for reconsideration of the entire transaction and entry made on the basis of transaction including the registered sale deed in favour of the original petitioner. Undisputedly Section 73AA is brought with an object of protecting interest of Scheduled Tribe and such transactions are made after seeking prior approval. The appellant-original respondent No.5 admittedly filed an application for the first time in the year 1999 objecting to the transaction, which was undertaken in the year 1981, in Page 5 of 7 Downloaded on : Sat Jan 15 03:50:32 IST 2022 C/LPA/1269/2019 ORDER DATED: 07/06/2021 which the appellant himself was a party. Having altered the position and having spent the amount for development on plan, the same cannot be questioned on the ground of Section 73AA of the Act.
6. In the decision dated 7.5.2021 of this Court rendered in the Letters Patent Appeal No.703 of 2020 in Special Civil Application No.7527 of 2020, wherein in para-51 has observed as under :-
"51 While dealing with the present appeal, one has to bear in mind that a intra Court appeal is really not a statutory appeal preferred against the judgment and order of an inferior to the superior Court. The appeal inter se in a High Court from one Court to another is really an appeal from one coordinate Bench to another Coordinate Bench and it is for this reason that a writ cannot be issued by one Bench of the High Court to another Bench of the High Court nor can even the Supreme Court issue writ to a High Court. Thus, unlike an appeal, in general, an intra Court appeal is an appeal on principle and that is why, unlike an appeal, in an ordinary sense, such as a criminal appeal, where the whole evidence on record is examined afresh by the appellate Court, what is really examined, in an intra Court appeal, is the legality and validity of the Judgment and/or Order of the Single Judge and it can be set aside or should be set aside only when there is a patent error on the face of the record or the judgment is against the established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing such a view may be to the Division Page 6 of 7 Downloaded on : Sat Jan 15 03:50:32 IST 2022 C/LPA/1269/2019 ORDER DATED: 07/06/2021 Bench, it is the view adopted by the Single Judge, which should, normally, be allowed to prevail. Hence, the impugned judgment of the learned Single Judge should not be completely ignored and this Court has to consider the judgment and order in its proper perspective and if this Bench, sitting as an appellate Bench, is of the view that the decision has been arrived at by the learned Single Judge without any material error of fact or law, then, the judgment, in question, should be allowed to prevail."
7. We have gone through the material on record and the impugned judgment dated 4.9.2018 and in view of the ratio laid down in the above decision, the order passed by the learned Single Judge does not call for any interference. It is settled principle of law that in the Letters Patent Appeal interference is called for only if there is a patent error apparent on the face of the record or the judgment is against the established or settled principle of law. Therefore, we are in complete agreement with the decision of the learned Single Judge. The present Letters Patent Appeal fails and the same is dismissed. Consequently the civil applications stand disposed of.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 7 of 7 Downloaded on : Sat Jan 15 03:50:32 IST 2022