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2013 DIGILAW 508 (GUJ)

Kanji Odhavji Patel v. State of Gujarat

2013-08-19

JAYANT PATEL

body2013
ORDER The short facts of the case are that the land bearing Old Survey No.141 2 Acre and 9 Guntha situated at Village : Ghagratiya, Taluka : Limdi, Dist. Surendra-nagar, was owned by Trivadi Harishanker Zinabhai. Thereafter Trivadi Harishanker Zinabhai expired and after his death interest in the property was transferred to his daughter Oja Taraben Ranchhodabhai and she executed Registered Mortgage Deed on 21.4.2051 (sic) and as per the Mortgage Deed the possession of the land was also given to Odhavjibhai Patel, father of the petitioner. It is the case of the petitioner that based on the Mortgage Deed the revenue entry was also mutated on 13.10.1983 and the petitioner remained in possession since the period of his father Odhavjibhai Patel. 2. On 23.3.1998 the application was made to the revenue authority informing that Trivadi Harishanker Zinabhai had expired intestate without any legal heirs. The Mamlatdar thereafter informed to the District Collector and suggested the forfeiture of ownership right. On 11.10.1999 the District Collector passed an order under Section 72 of the Bombay Land Revenue Code (hereinafter referred to as the Code) whereby the occupancy rights were forfeited. Thereafter the order was passed for auctioning the land. The public notice was also issued. The petitioners had filed the objections. However, on 11.1.2001 the respondent No.2 passed an order for auctioning of the property. The petitioners carried the matter before the State Government in revisional jurisdiction and vide order dated 20.5.2011 the said revision came to be dismissed. Under the circumstances the present petition before this Court. 3. I have heard Mr. Nanavati, learned counsel appearing for the petitioners and Mr. Jayswal, learned A.G.P. appearing for the State authority. 4. As such the issue centers around the interpretation of Section 72 of the Code. Section 72 reads as under : “72. Intestate occupancy or holding to be sold. Under the circumstances the present petition before this Court. 3. I have heard Mr. Nanavati, learned counsel appearing for the petitioners and Mr. Jayswal, learned A.G.P. appearing for the State authority. 4. As such the issue centers around the interpretation of Section 72 of the Code. Section 72 reads as under : “72. Intestate occupancy or holding to be sold. If an occupant who is either a Hindu, a Mahomedan, or a Buddhist dies intestate and without known heirs, the Collector shall dispose of his occupancy by sale, subject to the provisions of this Act, or of any other law at the time in force for the sale of forfeited occupancies in realization of the land revenue, and the law at the time in force concerning property left by Hindus, Mahomedans or Buddhists, dying intestate and without known heirs shall not be deemed to apply to the said occupancy but only to the proceeds of such sale after deducting all arrears of land revenue due by the deceased to the [Government] and all expenses of the said sale. 5. The aforesaid shows that if any occupant either Hindu or Mahomedan or Budhhist died intestate without any legal heirs, the Collector may dispose of the occupancy by sale under this Act or of any other law at the time in force for realization of the revenue. It has been further provided that the law at the time in force concerned to the property left by Hindu, Mahomedan or Budhhist shall not deem to apply to the said occupancy but only to the proceeds of such sale after deducting all arrears of land revenue due by the deceased to the Government and the expenses of the said sale. 6. Such would mean that, if any, person has died intestate and the Collector concerned will have power to dispose of the occupancy by sale for realization of the revenue and the expenses of the sale then the State through the Collector will have prior rights but the original rights or title or interest of the deceased occupant and the subordinate rights that too shall remain unaffected by such sale. To say in other words the Collector will have right under this section to sale the occupancy right of the deceased person having no legal heirs for realization of the land revenue and the expenses of sale of the land revenue can be recovered therefrom. The balance would be governed by the law other than the land revenue. 7. If the facts of the present case are further examined it appears that the rights of the petitioners are stated to be as that of the mortgage in possession of the land. Neither any forfeiture of the mortgage has taken place nor any of the redemption of the mortgage, therefore the mortgage subsist. It is true that the father of the petitioners has been put into possession under the deed of mortgage by the occupant. However, such would not result into conversion of the capacity of the petitioners or the father of the petitioners as occupant. The word occupant has been defined as per Section 3(16) of the Code reads as under : 3(16) Occupant : occupant means a holder in actual possession of unalienated land, other than a tenant : provided that where the holder in actual possession is tenant, the landlord or superior landlord, as the case may be, shall be deemded to be the occupant. The petitioners are not holding any capacity as defined by the aforesaid definition of the word occupant. It may be that the possession of the petitioners in capacity as the mortgagee can be considered as legal but such would not allow them to step into the shoes of the occupant. 8. If the occupant has expired and there are no legal heirs known, Section 72 of the Act of Code would apply. However, such powers are available to the Collector only if there is arrears of land revenue to be recovered that too after forfeiture of the occupancy right. No material has come on record to show that the exercise of power under Section 72 of the Code was on account of arrears of any land revenue. As per the petitioners they have been paying land revenue and no land revenue was outstanding at the relevant point of time. 9. As such in absence of any arrears of land revenue, the power could not have been exercised. As per the petitioners they have been paying land revenue and no land revenue was outstanding at the relevant point of time. 9. As such in absence of any arrears of land revenue, the power could not have been exercised. Even if it is considered that the forfeiture could be made on account of non-availability of any legal heirs of the original occupant, it was required for the Collector to examine as to whether any revenue is outstanding or not. However, so far as present petitioners are concerned, they would continue as mortgagee in possession and will have right to foreclosure of the mortgage even if such occupancy rights are sold by the Collector may be against the Government or may be against the purchaser of the property and the reason being that after the proceeds of the sale is appropriated towards arrears of land revenue and the expenses of the sale the bar of applicability of personal rights of the occupant would end and then the balance if any is to be appropriated as per any other law for the time being in force. At this stage, reference may be made to the decision of the Bombay High Court in the case of Kacharu Baban Kothawale and others v. State of Maharashtra and another, reported in AIR 1970 Bombay 205, wherein view has been taken by the High Court of Bombay at paras12 and 13, the relevant of which reads as under : 12. The effect of the section is that the occupancy rights in agricultural lands of a Hindu, Mahomedan or Buddhist who dies intestate and without known heirs instead of being managed and eventually sold by the administrator appointed by the District Court is sold by the Collector, and the net proceeds are made over by the latter to the administrator for credit to the deceaseds estate. In short, the intention is to prevent the occupancy of persons dying intestate coming under the management of the District Courts administrator. 13. In my judgment, this section being a provision contained in a special legislation overrides the general provisions of law contained in Section 10 of the Bombay Regulation VIII of 1827. All that the Collector can sell under S.72, however, is the right, title and interest of the deceased occupant and the subordinate rights are not affected by such a sale. In my judgment, this section being a provision contained in a special legislation overrides the general provisions of law contained in Section 10 of the Bombay Regulation VIII of 1827. All that the Collector can sell under S.72, however, is the right, title and interest of the deceased occupant and the subordinate rights are not affected by such a sale. The right, title and interest of the deceased must be sold by the Collector for what it will fetch. 10. In view of the aforesaid, the impugned order passed by the Collector and its confirmation thereof by the State Government can be maintained to the extent that such action will prevail for the purpose of recovery of land revenue. However, the rights of the present petitioners in capacity as the mortgagee in possession would remain unaffected. Consequently it will be for the petitioners to resort to appropriate remedy in capacity as the mortgagee in possession, if they are so desirous to maintain the interest as the mortgagee in possession after satisfying the arrears of land revenue, if any, and the consequential expenses thereof. 11. In view of the aforesaid the impugned order passed by the Collector and its confirmation thereof by the State Government is modified to the effect that the land shall vest to the State Government under Section 72 of the Code, but the rights of the petitioners in capacity as the mortgagee in possession shall remain unaffected, but only after all arrears of land revenue are recovered or paid. The petition is allowed to the aforesaid extent. Considering the facts and circumstances no order as to costs. Petition partly allowed.