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Judgment
Dr. A. P. Thaker, J
The petitioners have prayed to quash and set aside impugned order dated 26.12.2013 passed by Principal Secretary, Revenue Department (Appeals), Gujarat State in Revision Application No.MVV/JMN/ST/6/2004 and order No.4/D.P./R.E.V./73AA/2004 dated 24.2.2004 passed by District Development Officer, Surat.
The facts, in brief, germane for the adjudication of the present petition are enumerated hereinafter:
2.1 It is stated that agricultural lands of Revenue Survey No.31/3, having Block No. 59 admeasuring 3-94-59, H-Sq.mtr, paiki, 1-62-92 Sq.mtrs. are situated at Mouje: Bori, Taluka: Mandavi, and District: Surat. The said lands were originally owned, possessed, occupied and cultivated by the Himmtsinh Madhusinh Gohil, Gimbhirsinh Madhusinh Gohil & Gemalsinh Madhusinh Gohil. Similarly, land of Revenue Survey No. 86 having Block No. 219 admeasuring 1-31-51 H-Sq.mtrs. situated at Mouje: Bori, Tal. Mandavi, District-Surat. The said land was originally owned, possessed and cultivated by Jagabhai Soniabhai Chaudhary, who was ancestor of petitioners No. 3.1 to 3.6. It is also stated that, for the sake of convenience, the said lands were “exchanged between the Himmtsinh Madhusinh’ Gohil, Gimbhirsinh Madhusinh Gohil & Gemalsinh Madhusinh Gohil with Jagabhai Soniabhai Chaudhary. That, registered Deed of Exchange was executed between the parties on 5.5.1972, which was registered before the Ld. Sub-Registrar, Mandavi at serial No. 205 on dated 1.6.1972. That , on account of death of said Himmtsinh , the said lands have come in the share of Gimbhirsinh Madhusinh Gohil & Gemalsinh Madhusinh Gohil. That, since the date of execution of the Deed of Exchange, the parties are in physical possession and in occupation of the said lands and are paying revenue of their respective lands as per the said deed of exchange. However, the mutation entry in relation to the said Exchange Deed was not posted in the revenue records at relevant point of time.
2.2 It is also stated that on 26.3.1998, the petitioners had applied for appropriate permission for the exchange of the said lands on account of provisions of section 73-AA of the Code, enacted by the State Legislatures after the date of execution and registration of the said sale deed before the Ld. District Collector, Surat. Since power to grant such permission was vested with Respondent No.2, District Development Officer, Surat, the proceedings of said permission were transferred to the Office of Respondent No. 2. The D.D.O , Surat has submitted proposal to the State Government, Revenue Department. That pursuance to the letter dated 7.1.2004, written by the Revenue Department, communicated to the D.D.O, Surat, the D.D.O, Surat vide his order No.4/D.P./R.E.V./73AA/2004 dated 24.2.2004, in a mechanical manner, was pleased to reject the said application saying that there is no such provisions under the Gujarat Land Revenue Rules, permitting such exchange deed.
2.3 Feeling aggrieved by the impugned order of the D.D.O, Surat, rejecting the said application dated 26.3.1998, the petitioners had preferred Revision Application No. MVV/JMN/ /ST/6/2004 before the Principal Secretary, Revenue Department (Appeals), at Anmedabad. That , at the time of final hearing of the said revision application , the petitioners had submitted their written arguments pointing out the provisions of Law & Case Law on the subject and also pointed out relevant Government Resolutions/Notifications. The Principal Secretary, Revenue Department (Appeals), Gujarat State at Ahmedabad vide his final order dated 26.12.2013 passed in Revision Application No. MVV/JMN//ST/6/2004 rejecting the said application. Therefore, the petitioners have filed present petition.
Heard Mr.N.V.Gandhi, learned advocate for the petitioners and learned AGP, Mr.Nikunj Kanara for the respondent-State and Mr.H.S.Munshaw, learned advocate for respondent no.2 and perused the material on record.
Learned advocate Mr.N.V.Gandhi for the petitioners submitted that the survey settlement was introduced way back in the year 1934 which is much prior to the notification dated 4.4.1961. In view of the same restrictions of 73A of the Act was not applicable on the date of execution of the said registered deed of exchange. He also submitted that the impugned orders are, therefore contrary to the judgment of this Hon’ble Court reported in the case of Patel Pujabhai Jethabhai v/s. State of Gujarat reported in 2006(1) GLR at Page 199. This Hon’ble Court in the matter of PATEL PUNJABHAI JETHABHAI vs. STATE OF GUJARAT AND ORS was pleased to held as under:
“Bombay Land Revenue Code, 1879 (V of 1879) - Sec. 73A - Section placing restriction on transfer of lands in respect whereof relevant notification is issued before introduction of survey settlement - On facts found that survey settlement was introduced before publication of the notification - Held, restriction contemplated by Sec. 73A was not applicable.”
4.1 He submitted that the Respondents No. 1 and 2 have failed to appreciate that Ex-Change Deed in question was executed and registered way back in the year 1972 and the prohibition of Transfer from tribal to nontribal contending in Section 73(AA) of the Code without the prior permission of Collector has been introduced by the State Legislation from 1.2.1981. In view of the same, on the date of executed of the said sale deed, there was no prohibition of transfer under Section 73(AA) of the Act.
4.2 He further submitted that both the Authorities have failed to consider that the land of 33 Gunthas was acquired for rehabilitation of the flood affected persons and after carrying out constructions on the said land, houses were rented in favour of such persons on nominal rent. In view of the same, as per the Government Notification No. GHM.84-140 M.D.L. 1884 C.M.R.RZ dated 20.6.1984, the restrictions imposed u/s. 73(AA) are not applicable to the facts of the present case. He also submitted that both the authorities have failed to consider that, as per the guideline issued vide Government Notification No. ABJ-1079-2645-Z dated 19.10.79, the said restrictions are not applicable to the subjected lands. He also submitted that the State Government has issued guideline to regularize the breach of Section 73AA between 4.4.1962 to 31.1.1981, vide Notification No. ADJ-1979-M.R -3941-Z dated 13.11.1980, which has not been considered by Respondent Authorities.
4.3 He further submitted that both the authorities have failed to consider that by the said exchange deed, the petitioner No. 3 received larger portion of land admeasuring 4 Acres and 6 Gunthas compared to petitioner No. 1 and 2 who had received lesser portion of land admeasuring 3 Acres and 10 Gunthas. In view of the same, no injustice has been done to the petitioner no.3-Tribale. He further submitted that both the authorities have failed to appreciate that , after the date of registered deed of exchange, the respective parties are paying land revenue for the lands which come in their ownership.
4.4 He also submitted that without prejudice to the aforesaid contentions, it is respectfully submitted that, both the authorities have failed to consider that there is no absolute bar or prohibition for transfer of the lands owned by the tribal under the amended Act of 1980. That after taking permission if the conditions of provisions of Rule 57 (L) of the Rules are satisfied in that case the collector can grant ex post-facto permission after the sale having been executed. He also submitted that the respondents No. 1 and 2 ought to have considered that as provided under Rule 57 (L) of the Gujarat Land Revenue Rules, 1972 r/w Section 73AA of the Code under the terms and conditions provided under Rule 57-L, the Collector/District Panchayat are empowered to grant permission for transfer of agricultural lands from tribal to non-tribal.
4.5 He submitted that both the authorities have failed to consider that subject to terms and conditions of provisions of Section 73AA of Bombay Land Revenue Code, D.D.O is empowered to grant permission to transfer of such land in favour of petitioners. It is also submitted that, the case of the petitioners can be considered for granting ex post-facto permission to regularize the said sale transaction. That this Hon’ble Court in several decisions directed the authority to consider the case of such petitioners for grant of ex post-facto permission to regularize the sale transaction.
4.6 He also submitted that the impugned orders are contrary to the decisions of this Hon’ble Court in the case of Talji Chandanji Thakore V/S. Prant Officer dated 19.11.2010 passed in Letters Patent Appeal No. 849 of 2001 (2) Desai Maganbhai Lilabhai V/S. The District Collector & Ors. dated 29.1.2007 passed in Special Civil Application No. 17826 of 2006 (3) Dalsukhbhati D. Parmar & Ors. V/S. State Of Gujarat & Anr. dated 25.10.2005 passed in Special Civil Application No. 150 of 1989, and other decisions as relied upon in the written reply submitted before the authority. In view of all these, he has prayed to allow present petition.
On the other hand, learned AGP, Mr.Kanara for the respondent-State has submitted that the authority has not committed any error of facts or law in passing the impugned order. He submitted that earlier decision was taken in the year 2013 and, therefore, the Government has no power of further revision under Section 211 of the Bombay Land Revenue Code. He has submitted that since there was no provision regarding exchange of land between tribal and non-tribal person, decision taken by the Government is proper. He, therefore, submitted that the petition is devoid of merits and it is required to be rejected.
Learned advocate Mr.Munshaw for respondent no.2 has submitted that respondent no.2 has acted as per the direction issued by the Government vide letter dated 7.1.2004. He, therefore, prayed to dismiss present petition.
Heard learned advocates for the parties and perused the material placed on record. It emerges from record that the petitioner has approached respondent no.2 with an application dated 26.3.1998 requesting to confirm the transaction with Mr.Jagabhai Soniabhai Chaudhari dated 8.6.1972 with regard to land bearing Block No.219 admeasuring 1 hectare, 31 Are and 52 meters of Village-Bori, Taluka-Mandavi, owned by Mr.Chaudhari in exchange of land bearing Block No.59 paiki admeasuring 1 Hectare, 62 Are and 92 meters owned by petitioner no.2. According to the respondent’s stand, legal provision does not permit such transaction of exchange of land between tribal and non-tribal agriculturist. While relying upon provisions of Section 73AA of Bombay Land Revenue Code, it has been submitted that when the application was moved, such provision was in operation and, therefore, a tribal cannot exchange his land with non-tribal under the Bombay Land Revenue Code and, therefore, as such exercise was not permissible under the applicable Rules, revision application came to be rejected.
It reveals from record that original transaction of exchange of land had occurred in the year 1972. The same was also mutated in the revenue record in Index No.2 at the relevant point of time. It is also an admitted fact that such exchange document relating to transaction of exchange of land between the parties was duly registered before Sub-Registrar, Mandvi at serial no.205 on 1.6.1975. It is also revealed from record that the petitioners are in actual and peaceful possession of the land and they are cultivating the land exchanged by them since the date of sale deed. It is pertinent to note that the State Government has introduced Section 73AA in the Bombay Land Revenue Code from 1.2.1981. Thus, admittedly when said transaction of exchange of land was entered into between the parties, there was no any restriction of Section 73 in existence.
At this juncture, it is worthwhile to refer the decision of this Court in the case of Punjabhai Jethabhai Patel v. State of Gujarat reported in 2006 (2) GCD 1139, wherein the question was also regarding applicability of Section 73AA of the Bombay Land Revenue Code, 1989. In paragraph 13, this Court has observed as under:-
Admittedly, in this case, transaction in question was prior to coming into force of Section 73AA of the Bombay Land Revenue Code and, therefore, applicability of Section 73AA would not be said to be contravened in the present matter. Further, it is also not in dispute that survey settlement was already introduced in the vicinity prior to 1961.
In the case of Devshankar Ambalal Jani v. State of Gujarat reported in 1997 (1) GLR 279, it was held that survey settlement was carried out by the authority before introduction and remaining in force at the date of commencement of the Bombay Land Revenue Code becomes a survey settlement under the Bombay Land Revenue Code. It was further held that survey settlement of the land carried out by the authority of the erstwhile State would become survey settlement under the Bombay Land Revenue Code. Admittedly, Section 73A of the Bombay Land Revenue Code had been made applicable in the State of Gujarat after its formation. The basic requirement for applicability of the provisions of Section 73 of the Code is that the Notification under Section 73A should proceed original survey settlement. Admittedly, in present case, there is no such dispute raised that there was no prior survey settlement. In the facts and circumstances of this case, Section 73A would not be applicable.
Now, considering facts and circumstances of this case, admittedly when the transaction was of the year 1972, though the parties have applied after long lapse of time, it does not change the fact that at the relevant time there was no restriction of transfer of land of tribal to non-tribal. Further, on facts it also appears that by way of exchange of land through registered deed, the tribal has got bigger portion of land in exchange from non-tribal. The authority concerned has not taken into consideration all these aspects while not entertaining the application of the petitioner.
In view of above, present petition deserves to be allowed and it is allowed. Impugned order dated 26.12.2013 passed by Principal Secretary, Revenue Department (Appeals), Gujarat State in Revision Application No.MVV/JMN/ST/6/2004 and another order No.4/D.P./R.E.V./73AA/2004 dated 24.2.2004 passed by District Development Officer, Surat, are quashed and set aside. Respondent no.2 is hereby directed to decide the application of the petitioner afresh keeping in mind the observations made herein above. Such exercise shall be completed within a period of three months from the date of receipt of writ of this Court. Rule is made absolute to the aforesaid extent. No order as to costs. Direct service is permitted.