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The Indian Penal Code
The Revenue Recovery Act, 1890
Section 79 in The Indian Penal Code
Kantilal Ambalal vs State Of Gujarat on 24 June, 1966
Section 211 in The Indian Penal Code

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Gujarat High Court
Dhulabhai vs Heirs on 11 May, 2012
Author: C.L. Soni,

Gujarat High Court Case Information System

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SCA/1837/2001 10/ 10 JUDGMENT

IN

THE HIGH COURT OF GUJARAT AT AHMEDABAD

SPECIAL

CIVIL APPLICATION No. 1837 of 2001

For

Approval and Signature:

HONOURABLE

MR.JUSTICE C.L. SONI

=========================================================

1

Whether

Reporters of Local Papers may be allowed to see the judgment ?

2

To be

referred to the Reporter or not ?

3

Whether

their Lordships wish to see the fair copy of the judgment ?

4

Whether

this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ?

5

Whether

it is to be circulated to the civil judge ?

=========================================================

DHULABHAI

DEVRAJBHAI RABARI - Petitioner(s)

Versus

HEIRS

& LEGAL REPRES OF DEC KHODABHAI RAIJIBHAI & 1 - Respondent(s)

========================================================= Appearance

:

MR

HARIN P RAVAL for

Petitioner(s) : 1,

RULE SERVED for Respondent(s) : 1, Mr. Rahul

Dave, AGP for Respondent(s) : 2,

=========================================================

CORAM

:

HONOURABLE

MR.JUSTICE C.L. SONI

Date

: 11/05/2012

CAV

Judgment

:

The

petitioner has challenged the order dated 13th June, 1980 passed by the Deputy Collector, Rajpipla as well as the order dated 2/7 August, 2000 passed by the Deputy Secretary (Appeals) .

By

order dated 13th June, 1980, the Deputy Collector ordered to remove the petitioner from the possession of the land and to hand over possession to respondent No.1 and also ordered to remove the name of the petitioner from the record by exercising powers under section 79 of the Bombay Land Revenue Code. ["the Code" for short] The above order was passed by the Deputy Collector on the ground that the land in question situated in village Mangrol, Taluka Nandod, District Bharuch was purchased by the petitioner on 10.6.63 from Khodabhai Raijibhai who was Tribal and such transaction having taken place after 4.4.1961, same was in breach of section 73A of the Code. Above order of the Deputy Collector was challenged before the Deputy Secretary (Appeals, Gujarat State, Ahmedabad by filing revision under section 211 of the Code which came to be rejected by order dated 2/7 August, 2000.

It

is the case of the petitioner that the petitioner had purchased only 1 Acre 33 Gunthas land from one Khodabhai Raijibhai by registered sale deed dated 10th June, 1963. Said land was forming part of survey no. 338 ad-measuring 3 Acres 27 Gunthas. The land in question was also part of Block No. 740 according to the provisions of Fragmentation and Consolidation of Holdings Act and for the said purpose, entry No.2005 was effected. The petitioner has stated that during the period of Rajpipla State, survey and settlement of the land had taken place in the year 1923 and the land was part of alienated village and it was Dumala village land. It is further case of the petitioner that village Mangrol was part of erstwhile Rajpipla State. This fact was very much known to the State Government and it was a case of merger of erstwhile State with the Bombay State and, therefore, it was not required to be proved by leading any evidence. In substance, say of the petitioner is that the survey settlement had already taken place long before the petitioner purchased the land and, therefore, no illegality in purchasing the land was committed by the petitioner. The petitioner has also taken ground that the said transaction was of the year 1963 and the Deputy Collector initiated proceedings in the year 1980 and, therefore, the order passed by the Deputy Collector after unreasonable long period was required to be quashed and set aside by exercising revisional powers by the State Government under section 211 of the Code.

Learned

Advocate Mr. Champaneri appearing for learned advocate Mr.Harin P. Raval for the petitioner has submitted that village Mangrol was part of the erstwhile Rajpipla State and since the Survey Settlement for erstwhile Rajpipla State had already taken place in the year 1923, section 73-A of the Code would have no application. He submitted that the general notification issued on 4.4.61 in the State of Gujarat cannot be made applicable in each case without verifying as to whether such notification preceded the survey settlement which has taken place in respect of the concerned village or not. He submitted that the Deputy Collector has not taken any trouble to ascertain as to whether in respect of village Mangrol, survey settlement carried out in the erstwhile State of Rajpipla would be applicable or not. It was the duty of the Deputy Collector to make such inquiry before reaching the conclusion that there was breach of section 73-A of the Code. He also submitted that though specific contention was raised before the State Government in the revision application filed by the petitioner to the effect that Mangrol village was part of the erstwhile State of Rajpipla wherein survey settlement had taken place in the year 1923, the revisional authority has not taken into consideration such contention seriously on the ground that it was a matter of proof as to which village was forming part of the erstwhile State of Rajpipla. He submitted that when such contention was raised before the State Authority, the State Authority could have easily verified the fact as to whether Mangrol was part of the erstwhile State of Rajpipla or not. He submitted that the State Authority could not have rejected such an important contention raised by the petitioner while shifting burden on the petitioner. He lastly contended that in any case, it was not open to the Deputy Collector to pass order under section 79 of the Code for evicting the petitioner from the land in question, firstly because the Deputy Collector was not exercising the powers of suo-motu revision and secondly because the Deputy Collector exercised the powers of removing the petitioner from the land in question after unreasonable long delay of more than fifteen years which was contrary to the settled principles of law. He, therefore, prayed to allow the petition and to quash and set aside the orders passed by both the authorities below.

Learned

A.G.P. Mr. Rahul Dave has appeared for respondent No.2 and submitted that the transaction in question having taken place after the notification under section 73-A was issued on 4.4.61 by the State, there was a clear breach of section 73-A of the Code and, therefore, the Deputy Collector was well within his power to pass the order under section 79 of the Code for removing the petitioner from the land in question. He submitted that the petitioner has not produced any evidence to establish that in respect of village Mangrol, survey and settlement had already taken place prior to the issuance of notification dated 4.4.61, therefore, the transaction in question was clearly in breach of the prohibition contained in section 73-A of the Code. He pointed out that the State Government in revision filed by the petitioner, has well considered all the contention raised by the petitioner including the question as to whether Mangrol village was part of the erstwhile State of Rajpipla and on the question as to whether the transaction having taken place after issuance notification dated 4.4.61 was hit by the provisions of sec.73-A of the Code. He submitted that when there was notification issued under section 73-A of the Code and when the petitioner had failed to establish that the survey settlement had taken place before issuance of such notification in respect of village Mangrol, the authorities below cannot be said to have committed any error in ordering removal of the petitioner from the land in question and in rejecting the revision application filed by the petitioner. Nobody has appeared for the respondent No.1.

Having

heard the learned advocate for the petitioner as well as the learned A.G.P. for the State and having perused the record of the case and having considered the provisions of section 73-A and sec. 79 of the Code, I am of the opinion that when the main question was whether the survey and settlement had taken place prior to notification dated 4.4.61 in respect of village Mangrol, the State Authority either the Deputy Collector or the Deputy Secretary (Appeals) could have ascertained whether Mangrol was part of the erstwhile State of Rajpipla or not.

When

the Deputy Collector decided to exercise powers under section 79 of the Code when he found from the record that the transaction had taken place after 4.4.61, the Deputy Collector could have at the same time ascertained whether there was survey settlement in respect of village Mangrol prior to the issuance of the notification dated 4.4.61. It appears that the Deputy Collector has taken the notification dated 4.4.61 as having universal application in the State of Gujarat as if no survey settlement had taken place anywhere prior to such notification. In similar such issue which has arisen before this Court in the case of Devshankar Ambalal Jani v. State of Gujarat, 1997 (1) GLR 279, it was found that the survey settlement in respect of Idar State had taken place prior to the issuance of such notification, and, therefore, it was held that section 73-A of the Code had no application. Therefore, it was incumbent on the part of Dy. Collector to inquire and ascertain as to when survey settlement had taken place in respect of Mangrol before passing order under Section 79 of the Code.

It

appears that the petitioner raised very serious grievance about the non application of section 73-A to his transaction by contending that village Mangrol was part of the erstwhile State of Rajpipla for which survey and settlement was already carried out in the year 1923 and since the Rajpipla State had already merged with the Bombay State, such settlement would continue even after coming into force of the Bombay Land Revenue Code. Before the Secretary, various authorities were cited and the moot question raised was whether the survey settlement had already taken place in respect of village Mangrol. Above being the important question which was required to be addressed by both the authorities below, it was incumbent upon the State Authorities to find out whether village Mangrol was part of the erstwhile State of Rajpipla or not and for the State Authority, it was not impossible to ascertain such factual position. However, the learned Secretary (Appeals) rejected such important contention raised by the petitioner on the ground that it is a matter of proof whether Mangrol was part of the erstwhile State of Rajpipla or not and if Mangrol was part of erstwhile State of Rajpipla, then, it was required to be proved by record as to whether survey settlement had taken place prior to issuance of the notification dated 4.4.61, or not.

In

my view, the fact as to whether village Mangrol had become part of the erstwhile State of Rajpipla or not and whether survey settlement had taken place in respect of village Mangrol or not, could have been ascertained by the State Authorities. The respondents - State Authorities ought to have undertaken such exercise instead of leaving or shifting such burden on the shoulder of the petitioner.

Under

the circumstances, the matter is required to be remanded to the original authority i.e. the Deputy Collector, Rajpipla, to decide the entire case again afresh on the issue as to whether village Mangrol was part of the erstwhile State of Rajpipla or not and whether the survey settlement had taken place in respect of village Mangrol prior to issuance of notification dated 4.4.61 or not.

Accordingly,

this petition is partly allowed. The order dated 2/7 August, 2000 Annexure-A passed by the Deputy Secretary (Appeals) and the order dated 13.6.1980 passed by Deputy Collector, Rajpipla, both are hereby quashed and set aside. The matter is remanded to the Deputy Collector, Rajpipla to decide afresh in the light of what is stated above. The Deputy Collector shall as far as possible ascertain from record available in the concerned department, firstly as to whether Mangrol was part of the erstwhile State of Rajpipla or not and secondly whether the survey settlement was carried out in respect of village Mangrol before issuance of the notification dated 4.4.61. The petitioner shall be at liberty to represent his case on all points including delay in initiating the proceedings on the date of passing first order by Deputy Collector. The Deputy Collector shall make endeavour to decide and dispose of the case at the earliest, considering the backlog of the matters pending before him. Rule is made absolute to the extent indicated herein above with no order as to costs.

(C.L.

Soni,J.)

an

vyas

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