SCA/4077/1999 1/6 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 4077 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE RAVI R.TRIPATHI ========================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================= JAYENDRA C. MANVAWALA Versus COLLECTOR AND ANOTHER ========================================= Appearance : MR PC KAVINA for the Petitioner MRS KP CALLS, ASSISTANT GOVERNMENT PLEADER for the Respondents ========================================= CORAM : HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 18/03/2008 ORAL JUDGMENT 1. Present is the petition filed challenging order dated 29.07.1999, Annexure-G to the petition, whereby the Collector, Surat revoked order dated 22.12.1998 with immediate effect. 2. The petition was filed on 16.06.1999. Notice was issued on SCA/4077/1999 2/6 JUDGMENT 16.06.1999 returnable on 23.06.1999 and thereafter, Rule and notice as to interim relief was issued on 10.12.1999 returnable on 30.12.1999. 3. Later on, Civil Application No.8777 of 1999 was filed, wherein the Court was pleased to grant interim relief in terms of paragraph No.4(A), which reads as under: “4. A. This Hon'ble Court be pleased to stay the operation, implementation and further implementation of the order of the Collector Surat no.S/QL/3163/98/1224 dated 29/07/99 pending the hearing and final disposal of Special Civil Application no.4077/99.” 4. Mr.Kavina, learned advocate for the petitioner, submitted that interim relief being in operation, the petitioner continues to enjoy the lease rights in the land in question. He submitted that the lease period is to come to an end on 28.12.2008. 5. Learned advocate for the petitioner challenged order dated 29.07.1999 mainly on the ground that the order was passed without granting an opportunity of hearing to the petitioner, more particularly when there was an order passed in his favour renewing the lease dated 22.12.1998. Learned advocate for the petitioner submitted that on that short ground of passing of an order, which is adversely affecting the petitioner, without affording an opportunity of hearing is required to be quashed and set aside. SCA/4077/1999 3/6 JUDGMENT Learned advocate for the petitioner submitted that in the order impugned, it is mentioned that Additional Chief Secretary (Appeals), Ahmedabad had cancelled the permission granted under Section 73Aa of the Bombay Land Revenue Code in the matter of some other party, qua the land of village Vadi, Tal.: mangrol by his order No.SRD/JMN/ST/36/89 dated 06.02.1991 on the ground that the concerned officer had no jurisdiction. This aspect is explained in the affidavit filed by the Collector, Surat affirmed on 06.02.2006. Paragraph No.6 of the affidavit in reply reads as under: “6. With reference to para 2 of the petition, I deny the contents thereof. I say and submit that the original land owner was a tribal person, therefore, before selling this land to a non-tribal person, it was necessary for the owner to apply for permission under the provisions of Section 73AA of the Bombay Land Revenue Code to Collector, Surat, the competent authority. But in this case the petitioner had applied for the permission under the provisions of section 73AA of the Land Revenue Code to the Deputy Collector LND Songadh who was not the competent authority. Therefore the permission accorded to the petitioner vide order No.JAMAN/73AA/ZAB/8184 dated 05.09.1984 (Annexure-3) by Deputy Collector LND Songadh was illegal, as it was not within the jurisdiction of the Deputy Collector LND Songadh to grant such permission . By virtue of the said permission, the original land owner sold this land to the non-tribal, i.e. to the petitioner and the sale deed was executed.” 6. Learned advocate for the petitioner submitted that the order passed under Section 73AA by the Deputy Collector LND Songadh, SCA/4077/1999 4/6 JUDGMENT qua the land which is purchased by the petitioner is not questioned by the authorities. He submitted that the order is not cancelled. The learned advocate further submitted that as per the instructions given to him, the order holds the field even today, i.e. after filing of an affidavit affirmed on 06.02.2006. He submitted that placing reliance on an order passed by the Additional Chief Secretary (Appeals) in some other matter, the order impugned, i.e. dated 29.07.1999 cannot be passed and the same cannot be allowed to stand and operate by this Court. He submitted that even on this count, the order impugned is required to be quashed and set aside by this Court. 7. Mrs.Krina P.Calla, learned Assistant Government Pleader, submitted that the order passed under Section 73AA in favour of the predecessor-in-title of the petitioner was without jurisdiction as the same was passed by the Deputy Collector LND Songadh. She submitted that similar order passed by the Deputy Collector, Songadh came up for scrutiny and the Additional Chief Secretary (Appeals) had quashed that order on the ground that the Deputy Collector had no power to pass such order. The learned Assistant Government Pleader submitted that therefore, the order passed in the matter of predecessor-in-title of the petitioner shall also be treated as nonest in the eye of law. Learned Assistant Government Pleader submitted that if that is so, order impugned dated 29.07.1999, revoking the renewal order dated 22.12.1998 must stand the test of validity and be not interfered with by this Court. SCA/4077/1999 5/6 JUDGMENT 8. Taking into consideration the rival submissions of the learned advocates, it is clear that the impugned order is passed without according an opportunity of hearing to the petitioner and therefore, on that ground, the order cannot be allowed to stand. The order impugned is required to be set aside and it is accordingly done. So far as order passed under Section 73AA in case of predecessor-in-title of the petitioner is concerned, the same is not scrutinized by the authorities. Only because some such similar order passed by the Deputy Collector is quashed by the Additional Chief Secretary (Appeals) on the ground that issuing officer had no jurisdiction, cannot render the order in the matter of petitioner nonest. The learned Assistant Government Pleader expressed apprehension that allowing of this petition – quashing of order impugned dated 29.07.1999 may be construed to mean that the order under Section 73/AA cannot be taken up for scrutiny. 9. At the request of learned Assistant Government Pleader, it is clarified that allowing of this petition will not debar the authorities from taking up the order passed under Section 73/AA in scrutiny. However, at the request of Mr.Kavina, it is made clear that such scrutiny will be made only in accordance with law. It is further clarified that as and when the order passed under Section 73AA is taken up for scrutiny for determining its validity, the petitioner will SCA/4077/1999 6/6 JUDGMENT be given an opportunity to present his case and will be allowed to take all available contentions, including that of 'limitation'. 10. With the above observations, the petition is allowed. Order cancelling the renewal of lease is quashed and set aside. Rule is made absolute. No costs. (RAVI R.TRIPATHI, J.) *Shitole