Indian Kanoon - Search engine for Indian Law

1. The present petition is filed by the purchaser of land in question praying for quashing and setting aside the order dated 8-10-1990/9-10-1990 passed by the Additional Chief Secretary, Revenue Department (Appeal), Government of Gujarat, cancelling the order passed by the Deputy Collector L.N.D. 11-Songadh on 29-9-1984 granting permission under Section 73AA of the Bombay Land Revenue Code (for short "the Code").

2. It is the case of the petitioner that the petitioner was running a stone cutting industry known as Bhawani Stone Quory and the petitioner wanted to purchase the lands belonging to Jivanbhai Ukadbhai Gami and others and for that purpose the original owners of the land have applied for sanction to Collector for transfer of the said land to the petitioner. It is further the case of the petitioner that the respondent No. 4 was empowered to grant the permission under Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','33911','1');">73AA of the Code, as per the notification issued by the Collector, Surat on 30th April, 1984. Even while passing the order dated 29-9-1984, respondent No. 4 had also kept in mind the instructions issued by the State Government vide circular dated 23-3-1982 for granting sanction under Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','33911','1');">73AA of the Code. The petitioner has further submitted that after the purchase of the land, the petitioner has complied with all the conditions imposed by respondent No. 4 and the said transaction was entered into by entry No. 874/91 dated 3-10-1984 and entry No. 875 dated 11-10-1984, following the execution and registration of sale deed with the Sub-Registrar, Vyara on 10-10-1984.

4. The petitioner has raised almost all the contentions which were raised before the respondent No. 2 in response to the show cause notice issued as well as at the time of hearing of before him. In addition to this, the petitioner further submitted that the respondent No. 2 was not right in holding that the respondent No. 4 has no power and authority to pass the order dated 29-9-1984. As a matter of fact, the respondent No. 2 had delegated his powers under Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','33911','1');">73AA of the Code by notification dated 30th April, 1984 to the respondent No. 4 and the respondent No. 2 has passed the order dated 29-9-1984 only in exercise of such powers which is legal and valid. It was further submitted that even on merits the permission under Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','33911','1');">73AA could not be denied to the land owners of the land in question and the prime condition required to be satisfied for sanction are that they should get reasonable price and that transfer of occupancy should be for the purpose of industrial undertaking. It was submitted that the reasonable price allowed by the respondent No. 4 was Rs. 3,304/- per acre as against which the petitioner had paid the price at the rate of Rs. 6,001/- per acre and the petitioner has purchased the land for the purpose of industrial undertaking namely M/s. Bhawani Stone Quory, which was registered as a small scale undertaking with the District Industrial Center, Surat.

"The petitioner has changed its position or to be more precisely, the respondent No. 5 has permitted the petitioner to change its position after purchase of the land in dispute. The delay in such matters in initiation of the proceedings for declaration of the sale deed to be invalid under the provisions of Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','33911','1');">73AA of the Code is to be taken seriously and is fatal. The respondents by their inaction or omission may be deliberate or bona fide have permitted the petitioner to settle on the land and in fact he has settled on the land. Silence of the concerned authorities in such matters for three years is a serious matter in a case where the party, the transferee has changed its position. It is also not on the record of this Special Civil Application that the petitioner was not a bona fide purchaser. The doctrine of bona fide purchaser may not be strictly complied to the sale transactions of the nature as prohibited under Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','33911','1');">73AA of the Code but still while examining the question of dealy of initiation of the proceedings for cancellation of the sale in the matter this fact may be a relevant fact. What Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','33911','1');">73AA of the Code says that the occupancy of a person belonging to any of the Secheule Tribe shall not be transferred to any person without previous sanction of the Collector. So the transfer is not totally prohibited but it is permissible with the previous sanction of the Collector. That sanction has not been taken in the present case but in the facts of the present case and particularly the fact the petitioner has raised the construction on the land and the proceedings have been initiated after three years of the sale deed, the Court considers it to be appropriate to send the matter to the Collector to consider the question of grant of post-facto sanction to the sale transaction of the land. The respondent Nos. 1 to 4 to whom this land was belonging have not objected to the sale nor they have come up with a case that they have been exploited and that they now want the land for them. This course the Court is adopting for the reason that the State Government, its officers and functionaries are in fact responsible for all these transactions as they have not any check or vigilance in these matters as well as for the reason that there is a delay of three years in initiation of the proceedings under Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','33911','1');">73AA of the Code. The respondent-State, its officers and functionaries have permitted the petitioner by necessary implication to raise the construction and now if at this stage he is ordered to be ousted from the land and the house standing thereon then it will not be reasonable. The sale transaction is of the year 1981 now we are in the year 1997. This Court has protected the petitioner by grant of interim relief also."

9. Mr. Bukhari, learned AGP has supported the order passed by the respondent No. 2 and submitted that he has rightly cancelled the permission granted by the respondent No. 4 under Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','33911','1');">73AA of the Code. He has further submitted that the petition suffers from infirmity of misjoinder of parties, as the original land owners are not joined as parties in the proceedings. He has further submitted that since the Deputy Collector, the respondent No. 4 was not vested powers of granting permission under Section A href="javascript:fnOpenGlobalPopUp('/ba/disp.asp','33911','1');">73AA and yet the said permission was granted by him, the order passed by him is deserved to be quashed and set aside.