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SCA/2919020/2007 6/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 29190 of 2007
============================================
DAHYABHAI
HATHIBHAI PATEL - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
============================================
Appearance
:
MR PV HATHI
for Petitioner(s) : 1,
MR VIPUL MISTRY ASST.
GOVERNMENT PLEADER for Respondent(s) : 1,
NOTICE SERVED for
Respondent(s) : 1 - 3, 3.2.2, 3.2.3,3.2.4 - 4.
None for
Respondent(s) : 3,
MR JV BHAIRAVIA for Respondent(s) : 3.2.2
============================================
CORAM
:
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: 21/10/2008
ORAL
ORDER
1. Rule.
Learned Assistant Government Pleader waives service of Rule on behalf
of respondent. At the request of learned counsel for the parties,
this petition is taken up for final hearing.
2. The
petitioner an occupant of land bearing survey No.975/2 admeasuring 0
Acre and 6 Gunthas of Village Ajol, now in Mansa Taluka of
Gandhinagar District, claims to have possession of the land bearing
survey No. 975/1 admeasuring 0 Acre and 34 Gunthas adjoining to his
land bearing Survey No. 975/2 in the same village. It is the case of
the petitioner that land bearing Survey No.975/1 was purchased by the
petitioner by registered sale deed dated 24.5.1977 from respondent
No.4 i.e. Sombhai Bhikhabhai Senva and two others.
3. It
is the case of the petitioner that land was originally Watan Pasayata
land and was originally granted to the ancestors of respondent No. 3
& 4 towards emoluments for the services rendered by them to the
Government and the said land was governed by the provisions of the
Bombay Hereditary Offices Act. In the year 1970, the land was leased
to the petitioner by one Bhikha Kalia who had raised loan from the
petitioner and created first mortgage of the said land in favour of
the petitioner under an unregistered mortgage deed for Rs. 2,301/-
and that after 1977 the said land was sold to the petitioner for Rs.
7,614/- and a registered sale deed was duly executed on 24.5.1977 and
since then the petitioner is in possession of the land.
4. While
holding an inquiry under provisions of the Act, the Collector, Mansa,
passed an order addressed to the Assistant Collector on 2.3.1982,
ordering vacation on the assumption that the petitioner was an
unauthorised occupant of the land. Upon a challenge by filing
Special Civil Application No.5484/1985 by the petitioner under
Article 226 and 227 of the Constitution of India against the order
dated 23.7.1985 passed by the Secretary (Appeals), Revenue
Department, Gujarat State, dismissing the Revision Application and
confirming the earlier order of Collector, Mansa, dated 2.3.1982
taking back the land in question, after considering the rival
submissions in para 5 and 6 this Court (Coram: Hon’ble Mr. Justice
M.S.Shah) held as under:
3. At the hearing of this petition,
Mr PV Hathi,
learned counsel for the petitioner has submitted that the
petitioner is in possession of the land since last more
than 20 years and that the petitioner is prepared to
purchase the land in accordance with the Government
Resolution dated 16.3.1982 referred to in para 4 of the
order dated 23.7.1985 of the Secretary, Revenue
Department (Appeals). Mr Hathi further submitted that it
is true that no prior permission of the Collector was
taken, but it is open to the Court to remand such matter
to the Collector for enabling the parties to get ex-post
facto permission. In support of the said contention, the
learned counsel relied on the decision of this Court in
the case of Patel Maganbhai Kesurbhai since decd.
through his heirs vs. Bhogilal Punjabhai Vasava & Ors.,
1998(2) GLR 961.
4. On the other hand, the learned AGP for respondent
Nos. 1 and 2 and Mr Bhairavia, learned counsel for
respondent Nos. 3 to 5 have supported the impugned orders
and have submitted that no interference with the said
orders is called for in exercise of the jurisdiction
under Article 226 of the Constitution.
5. From a perusal of the impugned order dated
23.7.1985 of the Secretary it does appear that the
original watandar did not pay the amount as contemplated
by the provisions of the Bombay Merged Territories
Miscellaneous Alienation Act, 1955 and, therefore, the
land was not regranted to the original watandar or to
respondent Nos. 3 to 5 who claim to be the heirs of the
deceased watandar, but the present petitioner claims that
the possession of the land was physically transfered by
Senva Bhikha Kala to the petitioner initially by a
mortgage deed and thereafter by a registered sale deed
dated 24.5.1977. The petitioner had also submitted an
application dated 5.6.1982 (Annexure “B” to the petition)
requesting the Collector to charge whatever amount or
penalty was leviable and to regularize the petitioner’s
possession of the land in question. In this view of the
matter and also in view of the decision of this Court in
Patel Maganbhai Kesurbhai (Supra) holding that even if
the legislation requires previous sanction of the
Collector before the transaction, such transfer is not
totally prohibited, but a transaction without previous
sanction of the Collector can be subsequently regularised
if the parties apply to the Collector for ex-post facto
permission. That decision was, of course, in the context
of the provisions of Section 73AA of the Bombay Land
Revenue Code, 1879, but the principle underlying the said
provisions would be applicable to any other similar
legislation such as the enactment governing the land
which is the subject matter of the present petition.
6. In view of the above, this petition is disposed
of with a direction to the Collector, Mehsana, respondent
No. 2 herein, to hear and decide the petitioner’s
application dated 5.6.1982 (Annexure “B” to the petition)
and any other or further representation or application
which the petitioner may make to the Collector within one
month from today and to decide the same after hearing all
the affected parties. The application/representation
shall be decided within six months from today without
being inhibited by the order dated 2.3.1982 of the
Collector, Mehsana and order dated 23.7.1985 of the
Secretary (Appeals), Revenue Department, Government of
Gujarat.
7. The petition is disposed of subject to the
aforesaid direction.
5. Later
on, the Collector, Gandhinagar by order dated 18.10.2001 rejected the
application of the petitioner on the ground that the Revenue
Department, Govt. of Gujarat, has not accepted the request to grant
the said land being Survey No.975/1 and even in appeal before the
Principal Secretary, Revision Application No.17/2002 filed by the
petitioner, the order dated 18.10.2001 passed by the Collector,
Gandhingar, came to be confirmed.
6. Shri
P.V. Hathi, learned advocate, appearing for the petitioner
specifically contends as under:
the
orders dated 18.10.2001 and 5.5.2007 of the Collector, Gandhinagar
and Joint Secretary (Appeals), Revenue Department are against the
direction issued by this Hon’ble Court in earlier petition.
The
said two orders are passed without giving any opportunity of hearing
to the petitioner even though there was a specific direction to give
opportunity of hearing.
Both
the orders are passed on the basis of the ex parte decision taken by
the Revenue Department at Gandhingar without holding any inquiry or
without giving any opportunity of hearing.
None
of the contentions raised by the petitioner in his applications were
considered by any of the authorities while passing the orders dated
18.10.2001 and 5.5.2007.
6.1. In
view of the above, Shri P.V.Hathi, learned advocate for the
petitioner submits that the impugned orders are contrary to the
directions given by this Court in the order dated 21.7.1999 passed in
Special Civil Application No. 5484/1985 and deserves to be quashed
and set aside.
7. Mr.
J.V.Bhairavia, learned advocate appearing for the private respondents
namely respondents No. 3 and 4 and Mr. Vipul Mistry, learned AGP,
appearing for respondent No.1 submits that name of forefathers of the
respondents as an occupant continued in the revenue record and in
view of inability on the part of the respondents, amount so
determined was not paid for some time and, therefore, they cannot be
deprived of their right to hold land in question. Learned advocate
for the private respondents further submit that the transaction took
place between the petitioner and their forefathers, is illegal and
perverse and, therefore, the orders passed do not deserve any
interference by this Court.
8. Having
heard learned counsels appearing for the parties and considering the
facts and submissions of the case, undisputed fact remains that
inspite of specific direction given by this Court in the order dated
21.7.1999 in Special Civil Application No.5484/1985 to decide the
application of the petitioner dated 5.6.1982 or any other further
representation or application by the Collector within one month from
that date after according an opportunity of hearing, the impugned
order dated 18.10.2001 came to be passed by the Collector,
Gandhinagar without hearing the petitioner and even in Revision
Application No.17/2002, though specifically urged before the
Principal Secretary (Appeals), Revenue Department, that the above
order was in violation of principles of audi alteram partem, the
order passed by the Collector dated 18.10.2001 came to be confirmed
by the above authority on 5.5.2007 and, therefore, I am inclined to
allow the Special Civil Application on this limited ground of
violation of principles of natural justice by directing the
Collector, Gandhinagar to hear the parties afresh after following
procedure of law as established and pass an order in accordance with
law within six months from today without being influenced by the
previous orders which may have been passed on earlier occasion.
8.1. The
result of the above discussion is that the impugned orders at
Annexure F and G i.e. the order dated 18.10.2001 and 5.5.2007 and the
order dated 19.9.2000 passed by the Revenue Department of Govt. of
Gujarat rejecting the proposal of the Collector to grant the suit
land to the petitioner are hereby quashed and set aside and the
respondents are directed to hear the parties afresh in accordance
with law.
9. Petition
is allowed to the aforesaid directions. Rule is made absolute.
[ANANT
S. DAVE, J.]
//smita//
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