Dismissed

Lahlubhai Motibhai Pawar Since Decd. through Legal v. State of Gujarat

Gujarat HC19 Jun 2014SCA/346/2001

Case brief

AI extract

What is this about?

Petitioner challenged orders quashing an alleged unauthorized transfer of tribal occupancy land. Court held land was surreptitiously transferred in violation of restrictions, notices were duly issued, and remaining land had already been re-allotted, dismissing the petition.

What did the court decide?

Petition dismissed; rule discharged; interim relief vacated.

Lahlubhai Motibhai Pawar Since Decd. through Legal Vs State… — Land Acquisition | Gujarat HC (2014)

¶1

C/SCA/346/2001 JUDGMENT

¶2

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

¶3

SPECIAL CIVIL APPLICATION NO. 346 of 2001

¶4

FOR APPROVAL AND SIGNATURE:

¶5

HONOURABLE MR.JUSTICE RAJESH H.SHUKLA

¶6

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

¶7

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

¶8

2 To be referred to the Reporter or not ?

¶9

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

¶10

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 ?

¶11

5 Whether it is to be circulated to the civil judge ?

¶12

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

¶13

LAHLUBHAI MOTIBHAI PAWAR SINCE DECD. THROUGH LEGAL....Petitioner(s)

¶14

Versus

¶15

STATE OF GUJARAT & 3....Respondent(s)

¶16

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

¶17

Appearance:

¶18

MR H M JADEJA, ADVOCATE for the Petitioner(s) No. 1 - 1.9

¶19

MR UDIT MEHTA, ASST. GOVERNMENT PLEADER for the Respondent(s) No. 1 - 2

¶20

RULE SERVED for the Respondent(s) No. 3 - 4

¶21

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

¶22

CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA

¶23

Date : 19/06/2014

¶24

Page 1 of 4

¶25

C/SCA/346/2001 JUDGMENT

¶26

ORAL JUDGMENT

¶27

The present petition is filed by the petitioner under Articles 226 & 227 of the Constitution of India as well as under the provisions of the Bombay Land Revenue Code and the Gujarat Land Revenue Rules, 1972 for the prayers, inter alia, that the impugned order passed by the Dy. Secretary (Appeals) in Revision Application No. SRD-Ja.Ma.Na.-Dang-4/98 dated 30.8.2000 and the order passed by the Collector, Dang-Ahwa dated 25.10.1989 may be quashed and set aside on the grounds stated in the petition.

¶28

Heard learned advocate Shri HM Jadeja for the petitioner and learned AGP Shri Udit Mehta for respondents Nos. 1-2.

¶29

Learned advocate Shri Jadeja has submitted that the land in question has been given to the petitioner and when such land is given for occupation the same cannot be taken away without following the procedure. He submitted that the occupancy of the petitioner cannot be disputed and the proceedings have been decided without issuing any notice to the petitioner who is the original allottee of the land. He referred to the provisions of sec. 73-A and 73-AA of the Bombay Land Revenue Code and submitted that the notice is required to be issued. He therefore submitted that the impugned orders may be quashed and set aside as it is affecting the petitioner and no opportunity has been given. He submitted that had the notice been issued, it could have been explained and therefore the present petition may be allowed.

¶30

Learned AGP Shri Mehta however referred to the affidavit-in-reply and submitted that as stated in detail it was a land granted to the petitioner with occupancy right which cannot be transferred without required permission. He referred to the provisions of sec. 73-AA which provide for restriction on transfer of the occupancy of the tribals. He submitted that such occupancy rights are restricted subject to the procedure like getting prior approval. He submitted that as stated in detail the petitioner has transferred the land in question out of Survey No. 104/3 to various persons and

¶31

Page 2 of 4

¶32

C/SCA/346/2001 JUDGMENT

¶33

therefore after providing an opportunity to the petitioner and one Rameshbhai Nevjibhai Patel the order came to be passed. He pointedly referred to the impugned order and submitted that the revision has been partly allowed and the land admeasuring about 3533 sq.mtrs. has been restored to the petitioner as it was the only land vacant and available. He submitted that the remaining land was allotted to Dr. Babasaheb Ambedkar Society and there are occupants on the land and therefore such land which has been vested and already allotted to others now cannot be claimed back. He has also referred to the Government Resolution dated 3.1.1984 to support his submission that the land which has been vested in the government cannot be re-granted. He therefore submitted that the present petition may not be entertained.

¶34

In view of these rival submissions, it is required to be considered whether the present petition can be entertained and allowed.

¶35

As it transpires from the record, the petitioner was granted the land with limited right of occupancy and there was restriction on transfer of occupancy of such land. The submission made by learned advocate Shri Jadeja that without notice the hearing has taken place and therefore it is in violation of the principles of natural justice is misconceived. In fact, the petitioner has unauthorisedly and in violation of the statutory provision like sec. 73-AA transferred the land which was given for the occupancy of the petitioner and such other persons. Such land was given for occupancy and cultivation and the petitioner has transferred them to different persons as stated in the affidavit-in-reply. Therefore, the notices have been issued to these transferees who could be affected and after hearing them the order has been passed. As stated in the affidavit-in-reply, the notice was also issued to the petitioner alongwith one Rameshbhai Nevjibhai Patel and therefore the order came to be passed at Annexure-I with the affidavit-in-reply. Therefore, such contentions are without any merits.

¶36

Since the land in question has been reclaimed and vested in the government and thereafter it has also been allotted to Dr. Babasaheb Ambedkar Society and there are other occupants as stated in the affidavit in reply, there is no question of any re-grant to

¶37

Page 3 of 4

¶38

C/SCA/346/2001 JUDGMENT

¶39

the petitioner. Admittedly, in the impugned order passed in the Revision, the remaining land which was open has been re-allotted or granted to the petitioner admeasuring about 353 sq.mtrs. and therefore he cannot make a grievance as whatever the land which has been remaining has been re-allotted to the petitioner. Further, when the rights of third parties are created and they are in occupation, the question of re-grant would not arise. The government as a policy has issued a circular dated 3.1.1984 on this very issue with regard to re-grant and it has been stated that once such land has been confiscated and vested in the government, it cannot be re-granted.

¶40

In any view of the matter, as stated above, since it has also been allotted subsequently to Dr. Babasaheb Ambedkar Society where other persons have been occupying it cannot be gr-granted to the petitioner. The remaining portion of the land admeasuring about 3533 sq.mtrs. which has remained open has been re-granted to the petitioner and therefore his grievance would not survive to that extent.

¶41

It is in these circumstances the present petition deserves to be dismissed and accordingly stands dismissed. Rule is discharged. Interim relief, if any, shall stand vacated.

¶42

(RAJESH H.SHUKLA, J.)

¶43

(hn)

¶44

Page 4 of 4

Lahlubhai Motibhai Pawar Since Decd. through Legal v. State of Gujarat

Case brief

What is this about?

What did the court decide?

Lahlubhai Motibhai Pawar Since Decd. through Legal v. State of Gujarat

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Mansurbhai Dehabhai Harijan-Dec. Vs State of Gujarat

Thakor Jinabhai Tailor Vs State of Gujarat Thro Secretary

Heirs of K G Tripathi- Since Decd. through Legal Vs State of Gujarat

Udaji Kalaji Vs President -Gujarat Revenue Tribunal

Bimalprasad Sumerchand Jain Vs State of Gujarat

Jeram Lakhamshi Pedva Vs Chairman