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2017 DIGILAW 1784 (GUJ)

Somabhai Sharubhai Gamit v. State of Gujarat

2017-11-08

R.SUBHASH REDDY, VIPUL M.PANCHOLI

body2017
JUDGMENT : Vipul M. Pancholi, J. 1. The captioned appeal is filed under clause 15 of the Letters Patent by the original respondent No.3 against the interim order dated 15.6.2017 passed by the learned Single Judge in Special Civil Application No.10924 of 2017 by which, the learned Single Judge has granted interim relief and also restored status quo ante in favour of the original petitioners. 2. When this appeal was listed for hearing, learned advocates appearing for the parties jointly requested that the main Special Civil Application be heard and finally disposed of. Accordingly, order was passed on 7.11.2017 for listing of Special Civil Application on board. At the request of the learned advocates appearing for the parties, main Special Civil Application is heard and disposed of by this order. 3. The factual matrix of the present case is as under: 3.1 It is the case of the petitioners that one Ambika Nagar Cooperative Housing Society situated at Kansari, Taluka Khambhat, District Anand, is a society registered under the provisions of the Co-Operative Societies Act. The said society is formed by the employees serving in the ONGC for the purpose of construction of their residential houses. The society had purchased the land bearing Survey No.3/12 situated at Moje Kansari, Taluka Khambhat, District Anand, from the erstwhile owner under three different sale deeds. Necessary entries were made in the revenue record. After purchase of the said land, the society applied for nonagricultural permission for the purpose of construction of residential houses from the competent authority. The competent authority granted nonagricultural permission and accordingly, the residential houses were constructed. 3.2 It is the case of the petitioners that being an employee of ONGC and a member of the society, ONGC has allotted plot No.C/18 to the respondent No.3. The respondent No.3 constructed the house on the said plot. Subsequently, by sale deed dated 8.11.2002, the respondent No.3 sold the said house to the petitioner No.2. The said sale deed is produced on record at page 115 of the compilation. 3.3 The respondent No.3 thereafter submitted an application on 24.6.2005 to the Collector seeking nonagricultural permission under the provisions contained in section 73AA of the Bombay Land Revenue Code (hereinafter referred to as “the Code” for the sake of convenience). The Collector by an order dated 17.7.2008 rejected the said application and the property in dispute is forfeited. 3.3 The respondent No.3 thereafter submitted an application on 24.6.2005 to the Collector seeking nonagricultural permission under the provisions contained in section 73AA of the Bombay Land Revenue Code (hereinafter referred to as “the Code” for the sake of convenience). The Collector by an order dated 17.7.2008 rejected the said application and the property in dispute is forfeited. Thereafter, on 4.2.2010, the petitioner No.2 executed an Agreement to Sell in favour of the petitioner No.1 for purchase of the land. When the petitioners came to know that the Collector has passed an order on 17.7.2008 rejecting the application submitted by the respondent No.3, they challenged the said order by filing revision application before the Special Secretary (Revenue Department) [hereinafter referred to as “the SSRD” for the sake of convenience]. The SSRD rejected the revision application being Revision Application No.17 of 2014 preferred by the petitioners by an order dated 23.2.2016 on the ground that there is a gross delay in preferring the said revision application. The petitioners, therefore, challenged the said order passed by the SSRD by filing Special Civil Application No.4572 of 2016 before this Court. The learned Single Judge by an order dated 30.06.2016 allowed the said petition and matter is remanded back to the SSRD for rehearing of the revision on its own merits. 3.4 It is further stated that the SSRD thereafter heard the revision application on merits and rejected the said revision application by an order dated 11.11.2016. The petitioners, therefore, filed the present petition in which, they have prayed for the following reliefs: “(A) this Hon'ble Court may be pleased to admit and allow this petition; (B) this Hon'ble Court may be pleased to issue a writ of certiorari or a writ in the nature of mandamus or any other appropriate writ, order or direction quashing and setting aside the impugned order passed by the respondent No.1ld. Special Secretary, Revenue (Dispute) (sic) Appeal, Ahmedabad in No.MVV/JMN/Anand/17/2015 dated 11/11/2016; (C) pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the execution, implementation, operation and execution of the impugned order passed by the respondent No.1ld. Special Secretary, Revenue (Dispute) (sic) Appeal, Ahmedabad in No.MVV/JMN/Anand/17/2015 dated 11/11/2016; (D) this Hon'ble Court may be pleased to grant any other and further relief;” 4. Heard Mr. Amit Panchal assisted by Mr. Siddharth Jha with Mr. Angesh A. Panchal with Mr. Special Secretary, Revenue (Dispute) (sic) Appeal, Ahmedabad in No.MVV/JMN/Anand/17/2015 dated 11/11/2016; (D) this Hon'ble Court may be pleased to grant any other and further relief;” 4. Heard Mr. Amit Panchal assisted by Mr. Siddharth Jha with Mr. Angesh A. Panchal with Mr. Mayur Rajguru, learned advocates for the original petitioners, Mr. Shakeel Qureshi, learned advocate appearing for the original respondent No.3 and Mr. K.M. Antani, learned Assistant Government Pleader appearing for the original respondent Nos.1 and 2. 5. Mr. Amit Panchal, learned advocate appearing for the original petitioners mainly contended that the respondent Collector has committed an error by passing the impugned order as the provisions contained in section 73AA of the Code would not be applicable to nonagricultural land. It is submitted that the respondent No.3 has constructed the house on the nonagricultural land and, therefore, the aforesaid provision would not be applicable. 6. Mr. Panchal would thereafter submit that even assuming that the said provision is applicable even then, the Collector has not followed the procedure contemplated under section 73AA of the Code as no show cause notice was issued to the purchaser i.e. the petitioner No.2. It is further submitted that the petitioner No.1 is a bona fide purchaser and is in possession of the property in question. However, the SSRD has failed to consider aforesaid important aspects of the matter and, therefore, the order passed by the Collector as well as the SSRD be set aside. 7. Learned advocate, Mr. Panchal further submitted that circular dated 18.3.2006 issued by the Government provides that prior permission of the Collector is not required for transfer of the residential houses belonging to the tribals. 8. On the other hand, Mr. Qureshi, learned advocate appearing for the private respondent submitted that the transaction in question is in violation of the provisions contained in section 73AA of the Code as well as the Circular dated 18.3.2006 issued by the Government and, therefore, no error was committed by the Collector while forfeiting the property in question. It is submitted that the Circular dated 18.3.2006 would be applicable in the facts of the present case. It is pointed out that thereafter the respondent No.3 submitted an application on 14.6.2017 to the Collector for restoration of the possession of his property as the respondent No.3 is in need of the house. It is submitted that the Circular dated 18.3.2006 would be applicable in the facts of the present case. It is pointed out that thereafter the respondent No.3 submitted an application on 14.6.2017 to the Collector for restoration of the possession of his property as the respondent No.3 is in need of the house. It is, therefore, submitted that though the respondent No.3 submitted an application on 14.6.2017, however, in the meantime, the concerned authority has implemented the order passed by the SSRD and thereby the possession of the property in dispute has been taken away from the petitioner No.1 and seal was applied. 9. Learned advocate, Mr. Panchal pointed out that during the pendency of the petition, the aforesaid impugned order was passed by the authority and, therefore, the learned Single Judge passed a mandatory order on 15.6.2017. 10. Mr. K.M. Antani, Learned Assistant Government Pleader has supported the reasoning recorded by the Collector as well as the SSRD in the impugned orders and, therefore, he requested that the petition be dismissed. 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. Nonagricultural 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 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. 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 subsection (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 subsection (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 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 subsection (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 subsection (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 hereinabove, it is revealed that the 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. 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.2Collector 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. 15. As the main Special Civil Application is disposed of, no order is required to be passed in Letters Patent Appeal and connected Civil Applications. Direct service is permitted.