Gujarat High Court
State Of Gujarat vs Dhanaji Khokhaji on 12 February, 2021
Bench: Bhargav D. Karia
C/SCA/2998/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 2998 of 2015
With
R/SPECIAL CIVIL APPLICATION NO. 3037 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
==========================================================
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 or any
order made thereunder ?
==========================================================
STATE OF GUJARAT
Versus
DHANAJI KHOKHAJI & 3 other(s)
==========================================================
Appearance:
(Special Civil Application No.2998/2015)
MR K.M. ANTANI, AGP for the Petitioner(s) No. 1
. for the Respondent(s) No. 1.1.1,1.1.7.1
.. for the Respondent(s) No. 1.1.2,1.1.3,1.1.4,1.1.5,1.1.6,1.1.7.2,1.1.7.3
D H KANTHARIYA(7505) for the Respondent(s) No.
1.1.1,1.1.2,1.1.3,1.1.4,1.1.5,1.1.6,1.1.7.1,1.1.7.2,1.1.7.3
DS AFF.NOT FILED (N)(11) for the Respondent(s) No. 1.1
MR JIGAR M PATEL(3841) for the Respondent(s) No. 2
MR VIJAL P DESAI(5505) for the Respondent(s) No.
1.1.1,1.1.2,1.1.3,1.1.4,1.1.5,1.1.6,1.1.7.1,1.1.7.2,1.1.7.3
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3,4
Page 1 of 15
Downloaded on : Wed Jan 12 08:48:31 IST 2022
C/SCA/2998/2015 JUDGMENT
(Special Civil Application No.3037/2015)
MR K.M. ANTANI, AGP for the Petitioner(s) No. 1
MR JIGAR M PATEL(3841) for the Respondent(s) No. 2
MR SP MAJMUDAR(3456) for the Respondent(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6
MR. HJ KARATHIYA(7012) for the Respondent(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 1,5
NOTICE SERVED BY DS(5) for the Respondent(s) No. 3,4
==========================================================
CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 12/02/2021
ORAL JUDGMENT
1. Heard learned Assistant Government Pleader Mr.
K.M. Antani for the petitioner, learned advocate
Mr. Jigar Patel, learned advocate Mr. Vijal
Desai, learned advocate Ms. Trusha Patel,
learned advocate Mr. Kaushal Patel for learned
advocate Mr. S.P. Majmudar for the respective
respondents in the respective petitions through
video conference.
2. Rule returnable forthwith. Learned advocate Mr.
Jigar Patel, learned advocate Ms. Trusha Patel,
learned advocate Mr.S.P. Majmudar waives service
of notice of rule for the respective
respondents.
3. Having regard to the controversy involved in
these petitions, which is in a very narrow
compass with the consent of the learned
advocates for the respective parties, the matter
C/SCA/2998/2015 JUDGMENT
is taken up for hearing today.
4. Both the petitions are filed by the State of
Gujarat challenging the orders dated 12.3.2013
passed by the Gujarat Land Revenue Tribunal,
Ahmedabad (For short "the GRT") in Revision
Application No.490/1996 and Revision Application
No. 522/1996 preferred by the State Government
before the GRT challenging the order passed by
the Deputy Collector (Land Reforms) Ahmedabad in
respect of land situated at Survey No.369/1,
block no. 483 admeasuring 5767 sq. mtrs. at
village Bhadaj, Taluka Dascroi, District
Ahmedabad and land situated at Survey No.454,
block no. 469 admeasuring 7891 sq. mtrs at
village Bhadaj, Taluka Dascroi, District
Ahmedabad. The Deputy Collector passed an order
dated 27.7.1993 with respect to land situated
at Survey no. 369/1 by removing the restriction
under section 32P(8) of the Bombay Tenancy and
Agricultural Lands Act, 1948 (For short "the
Act, 1948") which was placed by the Mamlatdar
vide order dated 29.7.1967 reflected in Village
Form No.6 as per Entry No. 1775 dated 15.8.1967.
The Deputy Collector by order dated 26.7.1993
passed a similar order in Revision Case
No.35/1993 in respect of land situated at Survey
No.454 by removing the restriction under section
32P(8) of the Act, 1948 as per the order passed
by the Mamlatdar on 21.8.1968 which is reflected
in the revenue record as per Entry No.22 in
C/SCA/2998/2015 JUDGMENT
Village Form No.6. The Deputy Collector
purportedly exercised suo motu powers in the
year 1993 under section 76A of the Act, 1948 on
the ground that both the parcels of land were in
possession of the original owners prior to
29.12.1965, the cutoff date which came to be
inserted and subsections (6) to (11) of section
32P were amended by Entry No. 36 of the Act 1965
and therefore, restriction imposed by the
Mamlatdar in the year 1968 under section 32P(8)
of the Act which provides that no land of the
description referred to in subsection(7) shall
be transferred by sale, gift, exchange,
mortgage, lease or assignment or partitioned
without the previous sanction of the Collector
and except on payment of such amount as the
State Government may by general or special order
determine, cannot be applied and accordingly,
such restriction was ordered to be removed.
5. It appears that based upon such order,
respondent no.2 namely, Dipak Govindbhai Dalwadi
executed a sale deed to purchase both the
parcels of land.
6. The State Government challenged both the orders
passed by the Deputy Collector with respect to
both the parcels of land by preferring Revision
Application No.490/1996 and Revision Application
No. 522/1996 before the GRT. The GRT by separate
orders dated 12.3.2013 dismissed both the
C/SCA/2998/2015 JUDGMENT
revision applications confirming the orders
passed by the Deputy Collector and reiterating
that the original owners were in possession
prior to 29.12.1965 as per the revenue records
and, therefore, restriction placed by Mamlatdar
in the year 1967/1968 are required to be removed
so that the original owners can sell the land
without obtaining sanction or payment of premium
as may be determined by the Collector as per
section 32P(8) of the Act, 1948.
7. Being aggrieved by the orders passed by GRT, the
State Government has preferred both the
petitions.
8. Learned AGP Mr. Antani appearing for the
petitioners submitted that the Deputy Collector
could not have passed any order invoking the
provisions of section 76A of the Act, 1948 and,
therefore, GRT has committed a grave error by
confirming the orders dated 27.7.1993 passed by
the Deputy Collector.
9. Learned AGP Mr Antani further submitted that the
Deputy Collector has passed the impugned orders
after a delay of more than 25 years on the
ground that the orders passed by the Mamlatdar
is nullity and limitation would not apply to
such facts. Learned AGP Mr. Antani submitted
that such reasoning given by the Deputy
Collector and confirmed by the GRT is contrary
C/SCA/2998/2015 JUDGMENT
to the settled legal position that any
revisional powers can be exercised within a
reasonable time of one year and therefore, the
Deputy Collector could not have passed the
impugned order after a delay of 25 years.
10. Learned AGP Mr. Antani also submitted that
the Deputy Collector as well as the GRT ought to
have considered that there is no evidence on
record to show that the original owners were in
possession of the land in question, except the
entries made in Village Form No. 7 and 12 and
only relying upon such entries, it cannot be
said that the original owners were in possession
of the land in question prior to 29.12.1965. It
was therefore, submitted that the orders passed
by the Deputy Collector and confirmed by the GRT
are based upon no evidence.
11. Learned AGP Mr. Antani invited the
attention of the Court that the GRT passed the
impugned orders only on the basis of assumption
which is evident from the impugned orders, as
such findings given by the GRT are not supported
by any evidence on record. It was submitted by
learned AGP Mr. Antani that reversing or
modifying the conditions imposed by the
Mamlatdar would directly cause loss to the
State Government and ultimately, to the public
exchequer as the land in question was subject
to restriction under section 32P(8) of the Act,
C/SCA/2998/2015 JUDGMENT
1948 requiring sanction and payment of premium
for sale of such land by the original owners.
12. It was therefore, submitted by learned AGP
Mr. Antani that on both the counts of
jurisdiction as well as delay, the impugned
orders are required to be quashed and set aside.
13. On the other hand, learned Senior Advocate
Mr. Dhaval Dave assisted by learned advocate Mr.
Jigar Patel appearing for respondent no.2
submitted that respondent no.2 is a bona fide
purchaser for valuable consideration because
when the respondent no.2 purchased the land by
registered sale deed on 26.11.1993, the order
passed by the Deputy Collector was in existence
removing the requirement of getting sanction and
payment of premium as per section 32P(8) of the
Act,1948.
14. It was therefore, submitted on behalf of
respondent no.2 that the impugned orders passed
by the Deputy Collector is based upon the
which clearly shows that original owners were in
occupation and possession of the land in
question prior to the year 1965 and therefore,
no restriction could have been placed by the
Mamlatdar, Dascroi under section 32P(8) of the
Act, 1948. It was further submitted that the
State Government could not have challenged the
C/SCA/2998/2015 JUDGMENT
orders passed by the Deputy Collector before the
GRT under section 76 of the Act, 1948 and
therefore, the revision applications filed by
the State Government before the GRT is without
jurisdiction. It was therefore, submitted that
in such circumstances, the orders passed by the
GRT confirming the orders of Deputy Collector
are required to be upheld in toto.
15. Learned advocate Mr. Kaushal Patel for
learned advocate Mr. S.P. Majmudar, learned
advocate Mr. Vijal Desai and learned advocate
Ms. Trusha Patel appearing for the private
respondents who are either original owners or
legal heirs of the original owners of the land
in question submitted that the entire
transaction of sale is a sham and fraudulent
transaction and the impugned orders passed by
the Deputy Collector are part of such fraudulent
transactions, for which civil proceedings are
initiated by the respective parties. It was
pointed out that the legal heirs of Dhanaji
Khokhaji respondent no.1 in Special Civil
Application No.2998/2015 preferred Regular Civil
Suit No. 382/2014 and legal heirs of Kalabhai
Bhaghubhai Bharwad respondent no.1 in Special
Civil Application No.3037/2015 preferred
Regular Civil Suit No. 60/2016 challenging the
sale deeds executed in favour of respondent no.2
in both the petitions.
C/SCA/2998/2015 JUDGMENT
16. Learned advocate Mr. Jigar Patel appearing
for respondent no.2 submitted that Regular Civil
Suit No. 382/2014 was dismissed by the
Additional Civil Judge, Ahmedabad (Rural) at
Mirzapur vide judgment and decree dated
31.3.2018 and has placed the said judgment on
record.
17. Learned advocate Ms. Trusha Patel submitted
that Regular Civil Suit No. 60/2016 filed by
Dhuliben, daughter of Bhagubhai Rudabhai is
pending for adjudication in the Court of
Principal Senior Civil Judge, Ahmedabad (Rural)
and by order dated 28.1.2016 below Exh.5, the
parties are directed to maintain statusquo with
regard to the suit property till further orders
to be passed by the Court. Respondent no.2
Dipakbhai Govindbhai is defendant no. 4 in the
said suit.
18. Learned advocates appearing for the
respective parties have heavily relied upon the
averments made in the affidavit in reply to
point out that the impugned orders passed by the
Deputy Collector as well as the sale deeds are
executed in favour of respondent no.2 by
alleging fraud. However, the said subject matter
of fraud and other aspect of the validity of
sale deed is pending at large to be considered
by the Civil Court in the pending suit being
Regular Civil Suit No. 60/2016 and therefore,
C/SCA/2998/2015 JUDGMENT
the said aspect is not considered by this Court
in these petitions so as as not to prejudice
either party as the trial is at large.
19. However with regard to the impugned orders
passed by the Deputy Collector with respect to
both the parcels of land is concerned, it is
purported to have been passed under section 76A
of the Act, 1948. Section 76A of the Act 1948
reads thus :
"76A. Revisional powers of Collector : Where no
appeal has been filed within the period provided
for it, the Collector may suo motu or on
reference made in this behalf by the State
Government, at any time,
(a) call for record of any inquiry or the
proceeding of any Mamlatdar or Tribunal for the
purpose of satisfying himself as to the legality
or propriety of any order passed by, and as to
the regularity of the proceedings of such
Mamlatdar or Tribunal, as the case may be, and
(b) pass such order thereon as he deems fit:
Provided that [no such record shall be called
for after the expiry of one year from the date
of such order and] no order of such Mamlatdar or
Tribunal shall be modified, annulled or reversed
unless opportunity has been given to the
interested parties to appear and be heard."
20. On perusal of the aforesaid provisions of
section 76A of the Act,1948 it is clear that the
Deputy Collector could not have invoked suo motu
jurisdiction after one year from the date of
passing of any order passed by the Mamlatdar. In
C/SCA/2998/2015 JUDGMENT
such circumstances, when the Deputy Collector
has exercised jurisdiction under section 76A of
the Act, 1948, it is absolutely time barred and
therefore, only on this ground the said orders
ought to have been quashed and set aside by the
GRT. However, GRT has not considered this aspect
of the matter and has proceeded to consider the
merits of the matter. The GRT while upholding
the order passed by the Deputy Collector has
arrived at the findings only on the basis of the
assumption. The GRT has recorded that it appears
from the record that the original owners were in
possession and occupation of the land in
question prior to 1965 without there being any
cogent evidence in support thereof. The GRT
could not have confirmed the orders passed by
the Deputy Collector only on the basis of such
assumption.
21. Thus the impugned orders passed by the
Deputy Collector after more than 25 years and
confirmed by the GRT only on basis of assumption
are not tenable in law and accordingly, the same
are required to be quashed and set aside.
22. At this juncture, learned advocate Mr.
Jigar Patel for respondent no.2 submitted that
respondent no.2 has purchased the land in
question by registered sale deed relying upon
the order passed by the Deputy collector and if
same order is quashed and set aside in this
proceeding, then respondent no.2 may be given an
C/SCA/2998/2015 JUDGMENT
opportunity to obtain the sanction and pay the
premium prevailing as on today, so as to comply
with the conditions of section 32P(8) of the
Act, 1948.
23. As against that learned advocate Ms. Trusha
Patel appearing as intervenor for some of the
original owners who have disputed the sale
transactions before the Civil Court submitted
that no such indulgence can be granted at this
stage which would prejudice the rights of the
original owners as admittedly no sanction under
section 32P(8) of the Act, 1948 is obtained
before execution of the registered sale deed. It
was submitted by Ms. Patel that if respondent
no.2 is granted any indulgence at this stage, it
would amount to regularising the transaction
which was contrary to the provisions of law.
24. Ms. Patel also submitted that in any case
if the authorities are directed to consider such
application which may be preferred by respondent
no.2, then the intervenorsprivate respondents
in this petition be also granted an opportunity
of hearing to oppose such application in
accordance with law by raising all the
contentions including the contentions raised in
this petition because ultimately, if any order
which may be passed by the revenue authorities
would be subject to outcome of the pending civil
proceeding initiated by the private respondents
against respondent no.2.
C/SCA/2998/2015 JUDGMENT
25. With respect to the contention raised on
behalf of respondent no.2 that the revision
application filed by the State Government before
the GRT is not maintainable, learned AGP Mr.
Antani has placed reliance upon the judgment of
Supreme Court in case of Collector, Rajkot &
ors. v. Bavabhai Karshanbhai Patel & Anr. (Order
dated 16.10.2006 in Civil Appeal No.4505/2006),
wherein the Apex Court has held as under :
"Leave granted.
The challenge in this appeal is to the order dated
17.10.2002 in Special Civil Application No.3486 of
2002 passed by the learned Single Judge dismissing
the petition as not maintainable and the order dated
16.6.2004 passed by the Division Bench in LPA No.850
of 2003 affirming the order passed by the learned
Single Judge.
We have heard the parties.
In both the orders the learned Single Judge and the
Division Beach were of the view that since the order
of the Secretary to the State Government has been
challenged by the collector the writ petition is not
maintainable, according to them the collector is
subordinate to the Secretary in the Government and,
therefore, he is incompetent to challenge the order
passed by the Secretary to the State Government.
2 We have perused ground 'A' taken in this appeal
which shows that the appeal was preferred by the
collector of Rajkot on the expressed direction given
by the Ministry of Revenue. Apart from that, we are
of the view that when an illegality is committed it
is open to the Collector to challenge the same to
protect the interest of the State. Therefore , both
the learned Single Judge and Division Bench of the
High court were not correct in saying that the
Collector cannot challenge the order passed by the
secretary to the State Government.
C/SCA/2998/2015 JUDGMENT
Since, the controversy has not been settled on
merits, we set aside the orders of the learned
Single Judge and the Division Bench of the High
Court and the matter is remitted back to the learned
Single Judge by restoring Special Civil Application
No.3486 of 2002 before the learned Single Judge. The
learned Single Judge shall after hearing the parties
consider the respective merits and pass an
appropriate order in accordance with law. We make it
clear that the parties are at liberty to raise all
rights and contentions before the learned Single
Judge. The High Court is requested to dispose of the
matter within six months.
The appeal is disposed of accordingly."
26. In view of the aforesaid decision, the
contention raised on behalf of respondent no.2
is not tenable in law.
27. In view of above fact situation, the order
dated 27.07.1993 passed by the Deputy Collector
and the order dated 12.3.2013 passed by the GRT
which is impugned in Special Civil Application
No.2998/2015 and the order dated 26.7.1993
passed by the Deputy Collector and order dated
12.3.2013 which is impugned in Special Civil
Application No.3037/2015 are hereby quashed and
set aside. However, as submitted by learned
advocate Mr. Jigar Patel as order of the Deputy
Collector was in operation when the registered
sale deed was executed and as the same is
quashed by this order, an opportunity is given
to respondent no.2 to make an application before
the competent authority under section 32P(8) of
the Act, 1948 to obtain sanction of the sale
deed executed in favour of respondent no.2 under
C/SCA/2998/2015 JUDGMENT
section 32P(8) of the Act, 1948, as the
respondent no.2 is ready to pay the premium
prevailing as on today which may be determined
by the competent authority as per the provisions
of section 32P(8) of the Act, 1948. Respondent
no.2 is therefore, permitted to make such an
application to obtain sanction from the
competent authority with regard to sale deed
executed in the year 1993 under section 32P(8)
of the Act, 1948 on condition that the same
shall be subject to the payment of premium as
may be determined by the competent authority
prevailing as on today.
28. The competent authority namely, Collector
exercising powers under section 32P(8) is
therefore, directed to consider the application
which may be filed by respondent no.2 in
accordance with law after granting an
opportunity of hearing to the private
respondents as well as intervenor in this
petition.
29. In view of the foregoing reasons, both the
petitions are allowed. Rule is made absolute to
the aforesaid extent with no order as to costs.
(BHARGAV D. KARIA, J)
RAGHUNATH R NAIR
