Letters Patent appeal against dismissal of a special civil application challenging land transfer orders under the repealed Bombay Merged Territories Miscellaneous Alienations Abolition Act, 1955, relying on savings provisions of general clauses law.
The letters patent appeal was dismissed and the civil application was disposed of.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
C/LPA/1012/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1012 of 2016
In SPECIAL CIVIL APPLICATION NO. 2702 of 2016
With CIVIL APPLICATION NO. 1 of 2016
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CHAVDA ISHWARJI GULABJI
Versus
STATE OF GUJARAT
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Appearance:
MR J. V. VAGHELA WITH MR RJ GOSWAMI for the APPELLANT(s)
No. 1-9
MR ROHAN YAGNIK, AGP for the RESPONDENT No. 1 - 3
MR KV SHELAT for the RESPONDENT No. 4
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 12/07/2018
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI)
1.This appeal is filed under Clause 15 of
Letters Patent against the order dated 28.06.2016
passed by the learned Single Judge in Special
Civil Application No.2702 of 2016, by which the
learned Single Judge has dismissed the petition.
2.Heard learned advocate Mr. J.V. Vaghela for
Mr. R.J. Goswami for the appellants – original
petitioners, learned advocate Mr. K.V. Shelat for
respondent No.4 and learned AGP Mr. Rohan Yagnik
for respondent Nos. 1 to 3.
3. Learned advocate for the appellants –
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C/LPA/1012/2016 ORDER
original petitioners submitted that the
petitioners are the administrators of Ajol Chavda
Panch. The petitioners were granted land bearing
survey Nos. 41, 78, 283 and 359 by the then
Thakore Varsoad, State of village Ajol. It is
submitted that the respondent No.3 – District
Collector had issued show cause notice dated
04.03.2010 on the representation made by the
respondent No.4. In the said notice, it is stated
that why an appropriate action shall not be taken
under the provisions of the Bombay Merged
Territories Miscellaneous Alienations Abolition
Act, 1955 (hereinafter referred to as the ‘Act of
1955’). It is submitted that pursuant to the said
notice, the petitioners appeared through their
advocate and filed reply on 30.06.2010.
Thereafter, the respondent No.3 – District
Collector passed an order dated 16.08.2010 under
the provisions of the Act of 1955 by which the
land in question was ordered to be entered in the
name of the respondent – State. Petitioners,
therefore, preferred the appeal before the
Gujarat Revenue Tribunal. However, the said
appeal was returned to the petitioners for
removing the defects. After removing the defects,
when the petitioners once again tried to file the
appeal, it was informed that Act of 1955 has been
repealed and therefore the appeal cannot be
accepted. Petitioners, therefore, filed Revision
Application No.60 of 2010 before the Additional
Secretary, Revenue Department, which was rejected
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C/LPA/1012/2016 ORDER
by an order dated 14.10.2015. The petitioners,
therefore, preferred the captioned petition
before this Court. It is submitted that the
learned Single Judge, by way of impugned order,
dismissed the petition and therefore the
petitioners have filed the present appeal.
4.Learned advocate for the appellants would
submit that the Act of 1955 is concerned, the
said Act has been repealed by ‘Gujarat Repealing
Act, 2000’. Thus, as per the provisions of
Section 3 of the Repealing Act, certain Acts have
been repealed including the the Act of 1955.
Thus, the show cause notice as well as the
consequent order passed by the respondent No.3
were without jurisdiction and therefore the
learned Single Judge ought to have quashed and
set aside the said order by allowing the
petition.
5.Learned advocate for the appellants –
petitioners has not raised any other contention.
He, therefore, urged that the impugned order
passed by the learned Single Judge be set aside.
6.On the other hand, learned advocate Mr. K. V.
Shelat appearing for the respondent No.4
submitted that the lands in question are not in
the name of Chavda Panch as stated in the
petition and all the lands in dispute are
Government properties and they are meant for
public purpose and public use by the villagers of
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C/LPA/1012/2016 ORDER
Patanpura Gram Panchayat. He has referred the
revenue records produced along with the
affidavit-in-reply. It is thereafter submitted
that since 1969 the respondent No.4 came into
separate existence and the lands in question are
being used for public purpose, however, were
erroneously reflected in the revenue record in
the name of Chavda Panch Administrators. The
lands in question remained ‘padtar’ (waste) and
were under public utility and the same were used
for public purpose including pond, water bodies,
etc.
7.Learned advocate Mr. Shelat thereafter
submitted that the office of the respondent No.3,
in view of the application dated 14.12.1988
submitted by the respondent No.4, issued notice
to rectify the record in consonance with the Act
of 1955 and also the provisions of Savings made
under Bombay General Clauses Act, 1904. It is
submitted that the proceedings for removing the
names of Chavda Panch Administrators has been
initiated since 1988 when the provisions of the
Act of 1955 was in force and it is only in
furtherance of the said proceeding which was
already initiated, the Government has taken an
action and deleted the names of the petitioners.
8.Learned advocate Mr. Shelat has placed
reliance upon Sections 4 and 11 of the Act of
1955 as well as Section 7 of Bombay General
Clauses Act. Learned advocate, therefore, urged
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C/LPA/1012/2016 ORDER
that when the learned Single Judge has not
committed any error, this appeal be dismissed.
9.Learned AGP appearing for the respondents
also contended that the respondent Collector as
well as the Secretary have not committed any
error and therefore learned Single Judge has
rightly dismissed the petition. This Court,
therefore, may not entertain this appeal.
10.We have considered the submissions canvassed
by learned advocate appearing for the parties and
we have also gone through the material produced
on record. The only contention raised by the
learned advocate for the appellant is that though
the Act of 1955 has been repealed in the year
2000, the Collector issued the show cause notice
in the year 2010 under the provisions of the said
Act and thereafter passed the impugned order
which has been confirmed by the Revisional
Authority. Thus, when the Act of 1955 is
repealed, no action could have been initiated
under the provisions of the said Act.
11.With regard to the aforesaid contention, it
is required to be noted that the Gujarat
Repealing Act, 2000 is enacted to repeal certain
Acts. Section 4 thereof provides for Savings,
which reads as under:
“4.(1)Notwithstanding the repeal of
Land Tenure Abolition Act (hereinafter in
this sub-section and sub-section(2)
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C/LPA/1012/2016 ORDER
referred to as “the said Act”) by section
3,-
(a)land made liable to payment of
land revenue in accordance with the Bombay
Land Revenue Code, 1879 and the rules made
thereunder by the said Act shall continue
to be so liable, and
(b)the liability to pay land revenue
levied under the said Code imposed on the
holder of land by the said Act shall
continue.
(2)The repeal of the said Act by section
3 shall not affect-
(a)any restriction imposed by the
said Act on transfer of land; or
(b)theapplicationofthe
provisions of the Bombay Tenancy and
Agricultural Lands Act, 1948 or, as
the case may be, the Bombay Tenancy
and Agricultural Lands (Vidarbha
Region and Kutch Area) Act, 1958, to
any land or the relationship between
holder of land or, as the case may
be, landlord and his tenant made by
the said Act.
(3)Without prejudice to the provisions
contained in sub-section (1) and (2) and
subject thereto, section 7 of the Bombay
General Clauses Act, 1904 shall apply in
relation to the repeal of the Act
specified in the Schedule as if the Act
had been an enactment within the meaning
of the said section 7.”
12.Sub-section (3) of Section 4 of the Repealing
Act specifically provides that without prejudice
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C/LPA/1012/2016 ORDER
to the provisions contained in sub-section (1)
and (2) and subject thereto, section 7 of the
Bombay General Clauses Act, 1904 shall apply in
relation to the repeal of the Act specified in
the Schedule as if the Act had been an enactment
within the meaning of the said section 7.
13.At this stage, we would like to refer to
Section 7 of the Bombay General Clauses Act,
which provides as under:
“7.Where this Act, or any Bombay Act [or
Maharashtra Act], made after the
commencement of this Act, repeals any
enactment thereto made or hereafter to be
made, then, unless a different intention
appears, the repeal shall not-
(a) revive anything not in force or
existing at the time at which the repeal
takes effect; or
(b) affect the previous operation of any
enactment so repealed or anything duly
done or suffered thereunder; or
(c)afteranyright,privilege,
obligation or liability acquired, accrued
or incurred under any enactment so
repealed; or
(d)after any penalty, forfeiture or
punishment incurred in respect of any
offence committed against any enactment so
repealed; or
(e)afteranyinvestigation,legal
proceeding or remedy in respect of any
suchright,privilege,obligation,
liability,penalty,forfeitureor
punishment as aforesaid, and such
Page 7 of 8
C/LPA/1012/2016 ORDER
investigation, legal proceedings or remedy
may be instituted, continued or enforced,
and any such penalty, forfeiture or
punishment may be imposed, as if the
repealing Act had not been passed.”
14.Thus, keeping in view the aforesaid
provisions, if the facts of the present case are
examined, we are of the view that the impugned
order passed by the Collector as well as the
Additional Secretary, Revenue Department cannot
be said to be without jurisdiction as contended
by learned advocate for the appellants –
petitioners. It is also required to be noted that
as per the representation made by the respondent
No. 4, the respondent No.3 initiated the
proceedings in the year 1998 i.e. prior to coming
into force of the Repealing Act of 2000.
15.We have also considered the reasoning
recorded by the learned Single Judge and we are
of the view that learned Single Judge has not
committed any error which requires any
interference in the present appeal. Accordingly,
the appeal is dismissed. Consequently, civil
application also stands disposed of.
(R.SUBHASH REDDY, CJ)
(VIPUL M. PANCHOLI, J)
Jani
Page 8 of 8
3 issues framed by the court
Whether the impugned order was without jurisdiction since the Act of 1955 was repealed in 2000 but proceedings were initiated before repeal.
Whether Section 7 of the Bombay General Clauses Act sustains the action taken by the Collector under the repealed Act.
Whether the learned Single Judge committed any error in law or fact warranting interference in the letters patent appeal.
3 provisions across 3 enactments
Chavda Ishwarji Gulabji
State of Gujarat
R Субаш Редди
Випул М. Панчоли
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court