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Article 226 in The Constitution Of India 1949

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Gujarat High Court
Muljibhai vs State on 1 December, 2010
Author: Mr.S.J.Mukhopadhaya,&Nbsp;Honourable Mr.Justice Dave,&Nbsp;
   Gujarat High Court Case Information System 







LPA/1529/2007	 5/ 5	ORDER 






PATENT APPEAL No. 1529 of 2007



CIVIL APPLICATION No. 12150 of 2006



APPLICATION No. 10402 of 2007






OF GUJARAT & 1 - Respondent(s)

Appearance : 
MA KHARADI for the  Appellant. 
Ms. Trusha K Patel, Assistant













: 09/02/2010 




1. This appeal under Clause 15 of Letters Patent is preferred by the appellant challenging the order dated 26th June, 2006 passed by learned Single Judge, by which, prayer of the petitioner to quash and set aside the orders dated 8th February, 2006 and 22nd August, 2003 passed by the authorities of the State of Gujarat, came to be rejected.

2. That, by order dated 8th February, 2006 passed by the Department of Revenue, State of Gujarat, representation of the petitioner to reduce price of the land in question valued at Rs.2500/- per sq.meter came to be rejected after considering all relevant aspects. So far as the order of Collector dated 22nd August, 2003 is concerned, it was passed on the ground that value determined to pay the amount for removing restrictions under Section 73AA of Bombay Land Revenue Code, 1879 (for short 'the Code') was not paid within time and for breach of conditions of earlier order dated 19.7.2001.

3. At the outset the petitioner as well as the appellant in the writ petition and in this appeal is the Chairman of Nandigram Co-operative Housing Society (Proposed) Katargam, Surat, who had entered into an agreement with holder of the land which was governed by restrictions of Section 73AA of the Code, meaning thereby the land holder of the subject land who belong to a schedule tribe and, therefore, restrictions were in operation with regard to transfer of occupancy of tribals to tribals or non-tribals are concerned. The above restrictions were not to be removed without previous sanction of the Collector as required under sub-section (1) and (2) of Section 73AA of the Code. Therefore, if any grievance whatsoever of the nature an aggrieved person namely an occupier belonging to any of the scheduled tribes as referred in Section 73 AB of the Code could have raised or voiced his grievances on valuation of premium to be charged by the Collector for transfer of such land to a non-tribal. Therefore, we have doubt whether at the instance of transferee in question, viz. Chairman of the proposed society, the writ petition challenging the decision of Collector and the State authorities in favour of a tribal could have invoked extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India. It was exclusively a matter between holder/occupant of the land governed by provisions of Section 73 AA of the Code and the competent authorities of the State. Be that as it may, we are now considering relevant submissions raised by learned counsel appearing for the appellant who mainly contended that the fixation of the price was contrary to the recommendation made by the District Valuation Committee and that no material was supplied to the petitioner for arriving at the basis of valuation fixed by the authorities. It is also contended that the above fixation of the price is contrary to the principles of natural justice and, therefore, the conclusion arrived at by the learned Single Judge that there was no breach to that extent or lack of supply of the material to the petitioner is unreasonable and arbitrary and therefore, the order deserves to be quashed and set aside.

4. Learned counsel for the appellant also contended that learned Single Judge failed to appreciate the fact that it was not permissible for the Collector to refer the matter to respondent No.1-State because some policy decision was taken by the State with regard to the subject matter of the case and the appellant was not liable to pay interest @ 12%.

5. It is to be noted that on earlier occasion, this very Letters Patent Appeal was rejected by Division Bench on 13th October, 2008 on the ground that the holder of the land belonging to the scheduled tribe should get just and proper price of the land in question. However, being aggrieved by the aforesaid decision, the petitioner herein preferred Special Leave Petition before the Supreme Court, which also came to be rejected keeping it open for the petitioner to prefer a Review Application and accordingly, the petitioner filed Review Application, which came to be allowed by recalling order dated 13.10.2008 passed in LPA No.1529 of 2007 on 28th January, 2010 passed in Miscellaneous Civil Application No.2000 of 2009.

6. Heard learned counsel for the appellant. We have also heard learned AGP appearing for the State authorities who supports the order passed by the learned Single Judge and submitted that fixation of value of the land at Rs.2500/- per sq.meter by the authority cannot be said to be unreasonable, arbitrary or excessive and after considering all relevant aspects namely the development plan and the land in question situated in the residential zone in the city of Surat, opinion of the Town Planner as well as sale deeds of last five years of the transaction which took place in the area concerned the rate of Jantri ( a statement of valuation of the land), the Collector and the State authorities have determined premium for granting permission as required under sub-section (1) and (2) of Section 73 AA of the Code.

Therefore, learned AGP submitted that the appeal deserves to be rejected.

7. Having heard learned counsel for the parties, we are of the opinion that Section 73AA imposes restrictions on transfer of occupancy of tribals to tribals or non-tribals and without the previous sanction of the Collector, such land cannot be transferred by the occupant of such land. Thus, admittedly the subject land for which an application was preferred by the original land holder to the District Collector, Surat came to be considered and District Valuation Committee in its meeting held on 15.5.2000 fixed the price of Rs.1,000/- per sq. meter and since the price of the land in question exceeded more than Rs.50 lakhs as per resolution dated 15.1.1998 of Revenue Department of State of Gujarat, it was referred to State Government and after considering all relevant aspects and price of Jantri it was valued at Rs.2500/- per sq.meter. While considering the above price, the State Government also kept in mind the fact that the land in question belong to a member of schedule tribe and would fetch just and reasonable market price of the land and, therefore, in the developing city of Surat, the above land was to be utilized for non-agricultural purpose and an agreement was arrived at between the parties to use it for construction of residential houses, the decision so taken cannot be said to be in any manner arbitrary and unreasonable.

8. When the above price fixed by the authorities was not paid within prescribed time limit stipulated in the order passed by the authorities, the decision of the Collector to cancel the same is also in accordance with law. However, the State Government has considered the representation in its proper perspective by assigning reasons and a request of the appellant to decrease the price of the said land was not allowed by the State authorities is also in consonance with object of restrictions under Section 73AA of the Code and, therefore, the order dated 26.6.2006 passed by the learned Single Judge cannot be said to be in any manner contrary to law. More so, learned Single Judge in para 6 of the order has taken a lenient view by considering peculiar facts and circumstances of the case, that in case if the petitioner is ready to deposit the amount determined by the State authorities for the subject land, with interest @ 12% p.a. from the date of the order till the actual payment and directed the District Collector to consider the matter and take sufficient care of the interest of the petitioner and other occupants of the land.

9. For the aforesaid reasons, we are not inclined to interfere with the order passed by the learned Single Judge. Accordingly both Appeal and Civil Application for stay are dismissed. No order as to cost.

(S.J.Mukhopadhaya,C.J.) (Anant S.Dave,J) ***darji     Top