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Vallubhai Kukabhai Boliya v. State Of Gujarat
Structured Summary of the Opinion
Factual and Procedural Background
Several Special Civil Applications were finally heard together because they raise a common question regarding the alternative remedy available to petitioners for challenging orders passed under The Saurashtra Gharkhed, Tenancy Settlement And Agricultural Lands Ordinance, 1949 ("the Ordinance") read with the Saurashtra Land Reforms Act, 1957 ("the Act").
The petitions (Special Civil Application Nos. 14377/03, 15069/03 and 15066/03) challenge orders dated 29.8.2003 passed by the District Collector, Bhavnagar under the Ordinance. Special Civil Application No. 17421/03 challenges an order dated 14.3.2002 passed by the District Collector, Bhavnagar under the Ordinance. Special Civil Application No. 15343/03 challenges an order dated 14.8.2002 passed by the District Collector, Rajkot (initially by the Dy. Collector and subsequently set aside by the District Collector under Section 211 of the Bombay Land Revenue Code).
By the impugned orders the transactions for purchase of land were held invalid; orders were passed for summary eviction, and in some cases for forfeiture of the land. The petitions primarily challenged those orders and raised the question of whether an alternative efficacious statutory forum exists to challenge such orders.
Legal Issues Presented
- Whether there is any alternative remedy available to the petitioners to challenge orders passed by the competent authority under the Ordinance and, if so, before which forum such remedy lies?
- Whether the Gujarat/Saurashtra Revenue Tribunal retains jurisdiction to entertain revisions against orders under the Ordinance after the repeal of Section 67 of the Ordinance by the Act (Section 65 of the Act), or whether such matters fall to be considered by the State Government or under provisions of the Bombay Land Revenue Code?
Arguments of the Parties
Petitioners' Arguments
- The forum provided under the Ordinance or the Act for challenging orders under the Ordinance is not available or adequate; hence the petitioners have no option but to approach the High Court under Article 226 of the Constitution of India.
- Alternatively, the petitioners argued that the decision relied upon by the State (Shri Abbasali Kadarbhai) is not consistent with the Full Bench decision in Soni Devchand Ranchhod & Co., which held that the tribunal has no jurisdiction and revision lies to the State Government under Section 211 of the Bombay Land Revenue Code.
State/Respondents' Arguments
- The State, through the learned Additional Government Pleader, relied on the decision of the Gujarat Revenue Tribunal in Shri Abbasali Kadarbhai v. The Collector (reported in 91 GRTLR 144), asserting that revision before the Gujarat Revenue Tribunal is competent and therefore an alternative efficacious remedy exists.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shri Abbasali Kadarbhai v. The Collector, Junagadh (91 GRTLR 144) | Held that revision before the Gujarat Revenue Tribunal is competent; there is an alternative efficacious remedy before the Tribunal. | The court concluded that this view is not correct for the present context because the decision did not consider the effect of the repeal of Section 67 of the Ordinance on the Tribunal's source of power. The opinion states that Abbasali Kadarbhai failed to examine whether the Tribunal retained jurisdiction once Section 67 was repealed and therefore that decision cannot be relied upon as correctly determining jurisdiction in cases where actions were taken after repeal. |
| Soni Devchand Ranchhod & Co. v. Sandhi Punja Natha (19 GRTLR 130) (Full Bench) | The Full Bench held that the Tribunal will have no jurisdiction after repeal of Section 67 and that revisions would lie before the State Government (under Section 211 of the Code); it also treated the Collector's summary eviction powers as akin to powers under section 79 of the Code and contemplated appeal under Section 203 and revision under Section 211 of the Code. | The court regarded the Full Bench as correctly recognising that Section 67 was repealed and that the Tribunal lacks revisional jurisdiction over orders under Section 54 of the Ordinance. However, the court rejected the Full Bench's extension that appeals or revisions could be entertained under the Bombay Land Revenue Code for orders made under the Ordinance, holding that the Code cannot be applied to enable appeals/revisions against Ordinance orders unless expressly provided by the Ordinance or saved by the parent enactment; Section 19 of the Ordinance makes the Code applicable only to non-gharkhed lands, and there is no express provision applying the Code to orders passed under the Ordinance. |
Court's Reasoning and Analysis
The court proceeded in a stepwise statutory and textual analysis:
- Identification of statutory scheme: The court noted that Section 54 of the Ordinance bars transfers to non-agriculturists, and Section 75 empowers the Collector to summarily evict persons in unauthorized or wrongful possession where transfers are invalid under the Ordinance. The impugned orders were passed under Section 75.
- Historical removal of tribunal jurisdiction: The court observed that earlier the Saurashtra Land Revenue Tribunal (and later the Gujarat Land Revenue Tribunal) could entertain revisions under Section 67 of the Ordinance. However, Section 67 was repealed by the Saurashtra Land Reforms Act (the Act) via Section 65. Because Section 67 is repealed, the tribunal would not have jurisdiction to entertain revisions against orders passed under the Ordinance unless the action was taken while Section 67 remained on the statute book or a saving provision under the General Clauses Act applied. The petitions did not involve actions taken during the period when Section 67 still existed.
- Evaluation of tribunal precedents: The court critiqued the Gujarat Revenue Tribunal decision in Shri Abbasali Kadarbhai for failing to consider the effect of the repeal of Section 67 on the tribunal's source of power and therefore rejected it as an incorrect view for present purposes. The court accepted that the Full Bench decision in Soni Devchand Ranchhod correctly appreciated that Section 67 was repealed and that the tribunal would not have revisional jurisdiction for acts taken under the Ordinance after repeal.
- Limited applicability of the Bombay Land Revenue Code: The Full Bench in Soni had suggested that the Collector's powers under the Ordinance were analogous to powers under section 79 of the Code and that remedies under the Code (Section 203 appeals or Section 211 revision) could apply. The court disagreed: it emphasised that the exercise of power under the Ordinance is distinct and cannot be made appealable or revisable under another enactment (the Code) unless expressly provided or saved by the parent Act. Section 19 of the Ordinance makes the Code applicable only to non-gharkhed lands; the Ordinance contains no express provision making Code remedies available to challenge orders under the Ordinance. Therefore, the court rejected the Full Bench's conclusion to the extent it held that appeals or revisions would be competent under the Code.
- Identification of State Government's role under Section 77: The court examined Section 77 of the Ordinance, which provides that the Government shall have the same authority and control over Mamlatdars and Collectors acting under the Ordinance as in general and revenue administration. The court construed this control to mean that the State Government has power to examine the legality and validity of actions and orders taken by those officers under the Ordinance. The court treated this power as akin to revisional/control power — not necessarily styled as an "appeal" — and concluded that in the absence of express appeal/revision provisions the State Government's Section 77 control can serve as an alternative forum to examine and supervise actions under the Ordinance.
- Conclusion on alternative remedy and procedural consequence: Because the State Government has the power under Section 77 to examine and control Collector/Mamlatdar actions, the court held that petitioners possess an alternative efficacious statutory remedy (before the State Government). Following settled legal principles, the court held that the petitioners must first exhaust this alternative remedy; accordingly, the High Court petitions were not to be entertained at that stage.
- Interim arrangement: The court ordered that if petitioners prefer revision before the State Government within four weeks and file a stay application, the ad interim relief previously granted by the High Court shall continue until the State Government decides such stay application.
Holding and Implications
Holding: The court's core ruling is that the petitions will not be entertained at this stage because the petitioners have an alternative efficacious remedy before the State Government under Section 77 of the Ordinance.
Direct consequences and practical implications (as stated in the opinion):
- The rule in SCA No. 15343/03 is discharged; in the other petitions notice stands discharged and the ad interim relief previously granted is vacated (subject to the stay-application safeguard described below).
- There shall be no order as to costs.
- If petitioners file a revision before the State Government within four weeks and apply for a stay, the ad interim relief granted by the High Court will continue until the State Government decides the stay application.
- The court rejected the position that the Gujarat Revenue Tribunal retains revisional jurisdiction for orders passed under the Ordinance after repeal of Section 67; instead, it identified the State Government under Section 77 as the appropriate forum to examine such orders.
Broader precedent-setting: The opinion primarily addresses the availability of an alternative remedy and the appropriate statutory forum in the specific statutory context of the Ordinance and its relationship with the Act and the Code. The court's analysis clarifies that absent express statutory provision, remedies under the Bombay Land Revenue Code cannot be read into challenges against orders passed under the Ordinance; and it recognises the State Government's supervisory/revisional-like power under Section 77 as the competent alternative remedy in these circumstances.
1. All the matters are finally heard on the question of alternative remedy available to the petitioners for challenging the orders passed by the authority under The Saurashtra Gharkhed, Tenancy Settlement And Agricultural Lands Ordinance, 1949 (hereinafter referred to as "the Ordinance") read with Saurashtra Land Reforms Act, 1957 (hereinafter referred to as "the Act"). As the common question is involved, all the matters are being dealt with by the common judgment.
2. Special Civil Application Nos. 14377/03, 15069/03 and 15066/03 are preferred by the petitioners challenging the orders dated August 29, 2003 passed by the respondent No. 2-Dist.Collector, Bhavnagar under the Ordinance and Special Civil Application No. 17421/03 is preferred by the petitioner challenging the order, dated 14.3.2002 passed by the respondent No. 2-Dist.Collector, Bhavnagar under the Ordinance and the Special Civil Application No. 15343/03 is preferred by the petitioner challenging the order, dated 14.8.02 passed by the Dist.Collector, Rajkot under the Ordinance. By all the impugned orders referred to hereinabove the transactions for purchase of land are held to be invalid and consequently the orders are passed for summary eviction, and also in some cases for forfeiture of the land.
3. Heard Mr. Mangukia, Mr. A.J. Patel with Ms. Avani Mehta, Ld. advocates for petitioners and Mr. Desai, Ld. AGP for the authorities.
4. It is an admitted position that the impugned orders have been passed by the District Collector under the Ordinance except in Special Civil Application No. 15343/03 initially order was passed by the Dy. Collector and the State carried the matter before the Dist. Collector under Section 211 of the Bombay Land Revenue Code (hereinafter referred to as "the Code") and the Dist. Collector has set aside the order of the Dy. Collector and has found the sale is invalid and passed order for summary eviction and also for forfeiture of the land in question. The learned counsel appearing for the petitioners mainly contended that as the forum provided under the Ordinance or under the Act for challenging the order under the Ordinance is not available, the petitioners have no option but to approach this court by preferring the petitions invoking the jurisdiction of this court under Article 226 of the Constitution of India. Mr. Desai, Ld. AGP appearing for the State authorities has contended that as per the decision of the Gujarat Revenue Tribunal in the case of Shri Abbasali Kadarbhai v. The Collector, Junagadh and another reported in 91 GRTLR 144 the revision before the Gujarat Revenue Tribunal is competent and the petitioner has alternative efficacious remedy. The learned counsel for the petitioners also alternatively contended that the view taken by the tribunal in the aforesaid decision of Shri Abbasali Kadarbhai (supra) is not in consonance with the decision of the Full Bench of the Revenue Tribunal in case of Soni Devchand Ranchhod & Co. v. Sandhi Punja Natha reported in 19 GRTLR 130 wherein the view taken is that the tribunal will have no jurisdiction and the revision can be preferred before the State Govt. under Section 211 of the Code.
5. In view of the aforesaid controversy on the question of forum and alternative remedy in all the matters the question requires to be considered as to whether there is any alternative remedy available to the petitioners, if yes, before whom?
6. If the transaction is with non-agriculturist for sale of land, such transaction is barred by the provisions under Section 54 of the Ordinance. As per the provisions of section 75 of the Ordinance, in the event such transaction is found to be invalid or barred as per the Ordinance by the competent authority, there are enabling powers with the authority to summarily evict the persons who have continued to be in possession of such land. Section 75 of the Ordinance, reads as under:
"75. Summary eviction:- Any person unauthorisedly occupying or wrongfully in possession of any land,--
(a) the transfer of which either by the act of parties or by the operation of law is invalid under the provisions of this Ordinance,
(b) the management of which has been assumed under the said provisions, or
(c) to the use and occupation of which is not entitled under the said provisions and the said provisions do not provide for the eviction of such persons, may be summarily evicted by the Collector."
Clause (a) of Section 75, interalia, provides that the transfer of which is invalid under the said provisions of the Ordinance. For ascertaining as to whether such transfer is invalid under the provisions of the Ordinance Section 54 of the Ordinance would be relevant which reads as under:
"54. Transfer to nonagriculturists barred--(1) save as provided in this Ordinance,--
(a) no sale (including sales in execution of a decree of a civil court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift, exchange or lease of any land (where lease is by law allowed) or interest therein, or
(b) no mortgage of any land or interest in which possession of the mortgaged property is delivered to the mortgagee, shall be valid in favour of a person who is not an agriculturist; or
(c) No agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein;
[provided that the Collector or an officer authorised by the Government may grant permission for such sale, gift, exchange, lease, where lease is by law allowed or mortgage or for such agreement, on such conditions as may be prescribed] [provided further that no such permission shall be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees.] (2) Nothing in this section shall be deemed to prohibit the sale, gift, exchange or lease of a dwelling house or the site thereof or any land appurtenant to it in favour of an agricultural labourer or an artisan.
[Explanation: For the purpose of this section in so far as it relates to sale or lease of land, the term "agriculturist" shall include a (Maldhari and Landless Labourers employed in agricultural operations.)
7. The impugned orders have been passed by the competent authority under Section 75 of the Ordinance. It may be recorded that earlier against the decision of the authority under the Ordinance for declaration that the transaction is invalid the revision was competent before the Saurashtra Land Revenue Tribunal as per the provisions of section 67 of the Ordinance and after formation of the Gujarat State before the Gujarat Land Revenue Tribunal. However, Section 67 of the Ordinance is repealed by the Saurashtra Land Reforms Act (hereinafter referred to as "the Act") as per the provisions of Section 65 of the Act. In view of Section 65 of the Act which is subsequent to Ordinance of 1949 Section 67 of the Ordinance since repealed, the tribunal will have no jurisdiction to entertain the revision against the order passed by the competent authority under the Ordinance unless the action is taken during the period when Section 67 of the Ordinance was on the statute book and unless such proceedings are saved by the provisions of General Clauses Act. In none of the petitions, the action has been taken by the authorities under the Ordinance during the period when the Section 67 of the Ordinance was on the Statute book. Such actions are taken after repealing of Section 67 of the Ordinance and therefore it appears that the Gujarat Land Revenue Tribunal which is substituted in place of Saurashtra Land Revenue Tribunal after formation of Gujarat State will not continue to have jurisdiction for entertaining the revision in a matter where the action is taken under the Ordinance after repealing of Section 67 of the Ordinance as per the provisions of Section 65 of the Act.
8. The view taken by the Gujarat Revenue Tribunal in the case of Shri Abbasali Kadarbhai (supra) does not appear to be a correct view because in the said decision it has not been considered as to what will be the effect after repealing of Section 67 of the Ordinance on the source of power of the Gujarat Revenue Tribunal. As such, said view taken by the Revenue Tribunal in case of Abbasali Kadarbhai (supra) even otherwise also can not be said to be as a correct view in view of the decision of the Full Bench of the tribunal in case of Soni Devchand Ranchhod and Co. (supra). Even in the decision of the Full Bench of the tribunal in the matter of Soni Devchand Ranchood (supra) the tribunal has considered that Section 67 of the Ordinance is repealed and therefore the action and the orders passed by the Collector under Section 54 of the Ordinance were not revisable by the tribunal. The Revenue Tribunal in the said decision at para 5 has proceeded on the basis that the powers of the Collector for summary eviction are alike the powers under section 79 of the code and as the orders passed under the ordinance are made as final by the express provision of the statute such orders are revisable, but the view taken is that the orders would be appealable under general law, i.e. Section 203 of the Code and revisable under Section 211 of the Code. It appears that even the Full Bench of the tribunal in the aforesaid decision has not considered the distinction between the exercise of powers by the competent authority under the Ordinance and the exercise of power by the authority under the Code. The exercise of power under the Ordinance as such can not be made as appealable or revisable under the other enactment which in the present case would be the Code. By virtue of Section 19 of the Ordinance the provisions of the Code are made applicable to non gharkhed lands only. The other provisions of Chapter III of Non-Gharkhed Lands are repealed. The word "Gharkhed" is defined under Section 2(h) which provides 'the land reserved by the landlord for cultivating personally' provided that the land shall continue to be Gharkhed land even if the landlord allows the same to be cultivated by the tenant. There is no express definition for the lands classified as "non-gharkhed lands'. Section 2(y) of the Ordinance provides for the meaning of the words and expressions used in the Ordinance if not available specifically as in Bombay Land Revenue Code applicable to Saurashtra area of State of Gujarat and the Transfer of Property Act. There is no express provision available in the ordinance providing that the Code can be made applicable in connection with the order passed by the competent authority under the Ordinance. Right of appeal/revision under the old enactment can be read only if it is expressly provided or saved by making reference under the parent Act or enactment and in the absence thereof it can not be said that by General Law which is referred by the tribunal as Bombay Land Revenue Code can be made applicable and appeal or revision can be preferred under the Bombay Land Revenue Code for challenging the order passed by the authority under the Ordinance. Therefore, the view expressed by the Full Bench of the tribunal to the extent that the appeal or revision would be competent under the Code can not be said as a correct view in the opinion of this court.
9. As such, even after repealing of Section 67 of the Ordinance, the provisions of Section 77 of the Ordinance have continued to be on the Statute book and there is no repeal of that provision. Section 77 of the Ordinance reads as under:
"77. Control:-- In all matters connected with ordinance the Govt. shall have the same authority and control over the Mamlatdars and the Collectors acting under this Ordinance as they have and exercise over them in the general and revenue administration."
As per the said Ordinance the State Govt. is having the same authority and control over Mamalatdars and Collectors acting under the Ordinance as they have and exercise over them in the general and revenue administration. As such, the expression used under Section 77 of the Ordinance can be said as a conferring power upon the State Govt. to examine the legality and validity of the powers exercised by the Mamalatdar and the Collector under the Ordinance and to exercise the same power as that of Mamaltdar or the Collector under the Ordinance. Such power if not construed at par with the appellate power, it can be said at par with the power of revisional authority. In the absence of any express provision available for appeal or revision the orders passed by the competent authority under the Ordinance can be examined by the State Govt. It appears that only the controlling power of the State Govt. can be read as power akin to the revisional jurisdiction with a view to control and supervise any action taken or the order passed by the authority under the Ordinance.
10. Mr. Patel, Ld. counsel appearing in one of the petitions made an attempt to submit that the language used is "general and revenue administration" and therefore it may not be interpreted as having power to modify or annul the order which would rather be available with the revisional authority. In my view, merely because the language used is 'general and revenue administration', the powers of the State Govt. which are otherwise equated to control over the powers exercised and exercisable by the Mamalatdars and Collectors should not be restricted. The liberal interpretation would give wider power to the Govt. which would include examining the legality and validity of the actions taken or orders passed by the Mamaltdars or Collectors under the Ordinance. There is no reason to restrict such powers of the State Govt. which are essentially for controlling the actions taken or the orders passed by the Mamalatdars or Collectors under the Ordinance.
11. In view of the aforesaid, in all the petitions the impugned orders which are passed by the Collector can be challenged before the State Govt. as per Section 77 of the Ordinance and as the petitioners are having alternative efficacious remedy, as per the settled legal position, by way of self-imposed restriction, the present petitions deserve to be not entertained at this stage since the petitioners have not exhausted the alternative efficacious remedy available to them.
12. In view of the above, rule shall stand discharged in SCA No. 15343/03 and in other petitions notice shall stand discharged. Ad interim relief granted earlier shall stand vacated. In the facts and circumstances, there shall be no costs.
13. Ld. Counsel for the petitioners prayed that since the petitioners are desirous to approach the alternative forum as per the view taken by this court, the ad interim relief granted earlier be continued till the application is decided in the revision which may be preferred by the petitioners. Considering the facts and circumstances, in case the petitioners prefer revision before the State Govt. within a period of 4 weeks from today and submit stay application, until such stay application is decided by the State Govt., the ad interim relief granted in all the petitons shall continue.
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