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Gujarat High Court
Judgename :J.N.Bhatt
DEVSHANKAR AMBALAL JANI - Appellant
Versus
STATE - Respondent
S.C.A. 2458 of 1994
Decided On : 07/16/1996
Notification under Sec. 73A issued by respondent No. 1 State of Gujarat dated 4.4.1961 clearly ipso facto says that it shall apply to all those villages in the scheduled areas in the State of Gujarat in which survey settlement under the Bombay Land Revenue Code has not been introduced and to which provisions of Sec. 73A have not been made applicable before issue of notification. Since survey settlement in respect of the disputed land situated in Bhiloda in Sabarkantha district had been made in, as early as, in 1934, the said notification will not apply to the disputed land. Despite this, the impugned orders came to be passed exercising powers under Sec. 73A relying on the said notification. The respondent authorities lost sight of this proposition that survey settlement had been made by the authority of the Erstwhile State of Idar and it came to be accepted by respondent No. 1 State of Gujarat. Consequently, it becomes survey settlement under the Bombay Land Revenue Code, with the result, the impugned order of the Deputy Collector dated 26.9.1990 wherein it is held that there was violation of Sec. 73A and, therefore, the transfer is held to be illegal, is itself illegal and it is wrongly confirmed by the Collector in appeal so also by respondent No. 1 in revision.
[Para 13]
(b) Bombay Land Revenue Code, 1879 - Secs. 117E, 117R & 3(3) - Survey settlement - Definition of includes a settlement made under the provisions of chapter VIIIA of the Code & where settlement is made prior to the introduction of Bombay Land Revenue Code, Sec. 117R provides that in that eventuality settlement prior to that shall be deemed to be under chapter VIII-A and Sec. 117E lays down terms of settlement.
Survey settlement defined under the Bombay Land Revenue Code is inclusive and it includes a settlement made under the provisions of Chapter VIIIA. The definition of survey settlement as contained in Sec. 3(3) is not to be interpreted in its restricted, narrower or orthodox sense so as to exclude the survey settlement made by an authority under the provisions of other law. If such survey settlement though not made under the code is accepted by the State Government, it is to be treated as the one made under the Bombay Land Revenue Code. It will be now interesting to refer to the provisions of Chapter VIIIA of the Bombay Land Revenue Code. This chapter deals with the provisions of assessment and settlement of land revenue of agricultural land. What will be the position quo the survey settlement made prior to the introduction of the Bombay Land Revenue Code, is provided in Sec. 117-R.
[Para 8]
It is explicit from the plain perusal of Sec. 117-R that the settlements made before the introduction of the Bombay Land Revenue Code are to be deemed to be settlement under Chapter VIIIA. All settlements of land revenue undertaken and introduced and in force at the date of commencement of Bombay Land Revenue Code (Amendment) Act, 1939 are deemed to have been made and introduced in accordance with the provisions of Chapter VIIIA. Not only that, there is further provision which is very important. Such deemed survey settlement made before the Act, not withstanding anything contained in Sec. 117-E shall be deemed to continue to remain in force until a revised settlement is introduced.
[Para 9]
A combined reading of the provisions of Sec. 73-A and Sec. 117-R, it becomes explicit that the survey settlement of land revenue carried out by some authority before the introduction and remaining in force at the date of commencement of the Bombay Land Revenue Code (Amendment) Act, 1939 doubtlessly becomes the survey settlement under the Bombay Land Revenue Code.
[Para 11]
( 1 ) IN this petition under Art. 227 of the Constitution of India, the question has arisen as to whether the survey settlement of land revenue undertaken by some authority and accepted by the State Government would become survey settlement under Bombay Land Revenue Code and what is the interpretation and the applicability of the provisions of Secs. 73-A, 117-R and Sec. 216 of the bombay Land Revenue Code, 1879 (B. L. R. Code) are the main questions which have come to the surface for examination and adjudication.
( 2 ) ). The petitioners have questioned the legality and validity of the order passed in revision by the respondent No. 1, State of Gujarat, recorded, on 30-11-1993, confirming the order of the Collector passed, on 15-9-1992, directing the petitioner to hand over possession of agricultural lands bearing survey Nos. 655 and 656 (disputed lands) on the ground that there is breach of the provisions of Secs. 73- a and 73-AA of the B. L. R. Code.
( 3 ) ). The land admeasuring 9 acres and 30 gunthas and 0. 37 guntha bearing survey Nos. 655 and 656 respectively situated, at Moje Mou, Taluka Idar, District sabarkantha, came to be surveyed and settled in the year 1934 by the Erstwhile state of Idar. The respondent No. 1, State of Gujarat, issued a notification in exercise of powers conferred under Sec. 73-A of the B. L. R. Code applying the said section to the land situated within the area specified in the Schedule. The notification came to be issued on 4-4-1961.
( 4 ) ). The disputed lands originally belonged to one Patel Mohanbhai Kalidas, who in turn sold it to one tribal Shri Surjibhai Gambhirsinh, by way of oral contract in 1962. The transfer entry came to be recorded in the record of rights by virtue of entry No. 389, dated 17-5-1962. The predecessor-in-title of the petitioner had taken the possession of the disputed lands on 26-2-1971. Thereafter, on 21-9-1971, an application for permission to sell the said lands was made to the revenue Department. The Deputy Collector concerned had replied that there was no need to have the previous permission contemplated under Sec. 73-A of the b. L. R. Code.
( 5 ) ). The original petitioner, Devshankar Ambalal Jani, died during the pendency of the proceedings and therefore his heirs, two sons and brother are joined in this petition. The original petitioner had purchased the land from one tribal Shri surjibhai Gambhirsinh by a registered sale deed dated 16-11-1973. The Deputy collector had issued a notice for suo motu revision and fixed the hearing of the proceedings on 18-7-1984 and after hearing decided to drop the proceedings. Later on, on 29-7-1989, the Collector had suo motu taken the order dated 9-8-1984 in revision who held that there was some violation of the provisions of Sec. 73-A of the Bombay Land Revenue Code and remanded the case to the Deputy Collector concerned. After the remand, the Deputy Collector by his order dated 26-9-1990, recorded the conclusion that there is violation of the provisions of Sec. 73-A of the B. L. R. Code and therefore, transfer by tribal to the original petitioner is illegal and therefore, directed to restore the possession to the respondent tribal. Being aggrieved by the said order, the original petitioner carried the matter in appeal, but unsuccessfully. The Collector by his order dated 15-9-1992 confirmed the order of the Deputy Collector. Thereafter, the original petitioner filed a revision before the State of Gujarat and the revisional authority by its order dated 30-11-1993, confirmed the orders of the Collector and the Deputy Collector. The important question which falls for appreciation and adjudication is whether the settlement of survey of land revenue made by the Erstwhile State Idar, prior to the introduction of the provisions of Bombay Land Revenue Code could be said to be a survey settlement under the B. L. R. Code. The contention of the petitioners is that the survey settlement of land revenue carried out by the au
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