Gujarat High Court
Subhashbhai Babnabhai Vasava vs State Of Gujarat & on 25 April, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/7792/2005 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7792 of 2005
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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1 Whether Reporters of Local Papers may be allowed YES
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of NO
the judgment ?
4 Whether this case involves a substantial question of NO
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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SUBHASHBHAI BABNABHAI VASAVA....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MR JOY MATHEW, ADVOCATE for the Petitioner(s) No. 1
MR MANAN MEHTA, AGP for the Respondent(s) No. 1
MR PARTHIV A BHATT, ADVOCATE for the Respondent(s) No. 2.1 - 2.4
RULE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 25/04/2017
ORAL JUDGMENT
1. Heard Mr.Mathew, learned advocate for the petitioner and Mr.Bhatt, learned advocates Page 1 of 15 HC-NIC Page 1 of 15 Created On Mon Aug 14 02:05:04 IST 2017 C/SCA/7792/2005 JUDGMENT for respondents No.2.1 to 2.4 as well as Mr.Mehta, learned AGP for respondent No.2.
2. In present petition, the petitioner has placed under challenge order dated 21.12.2004 passed by the learned Tribunal in Revision Application No.1 of 1998 whereby the learned Tribunal set aside the order dated 23.3.2000 passed by the Deputy Collector and the order dated 1.11.2000 passed by the Collector whereby the said authorities confirmed Entry No.116 mutated in revenue records.
3. So far as factual background is concerned, the petitioner has averred and stated that:
"3. The petitioner states that the petitioner and the respondent No.2 are brothers, The petitioner and the respondent No.2 were cultivating 3 piece of land admeasuring about 6 acres. This piece of land originally belonged to one Ramanlal Maganlal Shah. The petitioner bought the property in question from Ramanlal Maganlal Shah and the respondent No.2. After the said transaction, the petitioner as well as the respondent No.2 were cultivating 3 acres and 3 gunthas each. The petitioner bought the land in question on 14.4.1970. Entry No.68 dated 22.8.1982 was also entered in the land record to this effect. This entry was made by the Talati after following the procedure while giving notice u/s.135, preparing Panchkyas, etc. On 22.8.1982, the respondent No.2 remained present before the Talati and gave statement in favour of the present petitioner. The respondent No.2 or the authority did not initiate any proceedings u/s. 84 of Bombay Tenancy and Page 2 of 15 HC-NIC Page 2 of 15 Created On Mon Aug 14 02:05:04 IST 2017 C/SCA/7792/2005 JUDGMENT Agricultural Lands Act.
4. The petitioner states that though the transaction had taken place on 14.4.1970, no proceedings were initiated by any of the respondents till the year 1991. On 23.12.1991, the present respondent No.2 approached the Dy. Collector, Rajpipla with application under Sec.73AA of the Bombay Land Revenue Code. The said application was registered as 739/7399 Cage N0'l/92 by the learned Dy.Co1lector, Rajpipla. On the basis of this application made by the respondent No.2, the Dy. Collector, Rajpipla initiated proceedings against the petitioner and by an order dated 719.12.l992 held in favour of the present petitioner and the notice issued by the Dy.Co11ector, Rajpipla was withdrawn.
5. Being aggrieved by the order dated 19.12.1992 passed by the learned Dy. Collector, Rajpipla, the respondent No.2 herein approached the learned Revenue Secretary, the respondent No.1 herein with a Revision Application No.1/98. During this period, the authority had made two entries in respect of the said land in question. The lega1itY and validity of these entries were also challenged by the respondent No.2. Finally, the dispute with regard to these entries also came to be challenged before the learned Revenue Secretary. By the impugned order dated 21.12.2004, the learned Revenue Secretary heard both the matters together and by a common order, the learned Revenue Secretary was pleased to set aside the order dated 22.1.1993 passed in 73AA Case No.1/921 and was further pleased to set aside the entry No.116 upheld by the Dy. Collector, Rajpipla by his order dated 23.3.2000 and the order dated 11.11.2000 passed by the learned Collector in Revision 15/2000 confirming the Dy.Co11ector's order. The petitioner has" filed another petition before this Hon'ble Court challenging the order passed in Revision 6/2001 passed by the learned Revenue Secretary.
6. The petitioner further states that during this period, in the year 1993, the petitioner approached the Civil Court with Regular Civil Suit No.13/91 praying for a permanent injunction against the respondent No.2 herein. The learned Civil Judge (J.D.), Dediapada was pleased to grant an ex parte order. Thereafter, after hearing the parties on 19.10.1993, the learned Judge was pleased to vacate the same. Being aggrieved by this order passed by the learned Civil Judge (J.D.), Dediapada, the petitioner approached the District Court, Bharuch by way of Misc. Civil Appeal No.89/93. On 31.3.1997, the learned District Judge, Bharuch was pleased to allow the said appeal and restraining the respondent No.2 herein from disturbing the possession of the petitioner."
4. In the said factual backdrop, learned advocate for the petitioner submitted that the Page 3 of 15 HC-NIC Page 3 of 15 Created On Mon Aug 14 02:05:04 IST 2017 C/SCA/7792/2005 JUDGMENT petitioner is, undisputedly, tribal and he purchased the land in question from a nontribal.
5. Mr.Mehta, learned AGP vehemently opposed the submissions by learned advocate for the petitioner so far as the factual backdrop is concerned, however, learned AGP could not dispute the petitioner's contention so far as the provision under Section 73AA of the Gujarat Land Revenue Code ('the Code' for short) and its applicable in light of the facts of present case, is concerned.
6. I have considered rival submissions by learned advocates for the petitioner and the private respondents and learned AGP and I have also considered material available on record.
7. In light of the factual background and the contentions raised by the petitioner as well as learned advocate for the private respondents, it appears that present petition can be disposed of on limited ground viz. that the learned Page 4 of 15 HC-NIC Page 4 of 15 Created On Mon Aug 14 02:05:04 IST 2017 C/SCA/7792/2005 JUDGMENT Tribunal has not considered and not dealt with the petitioner's objection with reference to the applicability of Section 73AA of the Code.
8. It is not in dispute that the petitioner is a tribal. It is also not in dispute that the petitioner purchased certain parcels of land from a nontribal.
9. The petitioner purchased land in question somewhere in April 1970. After the said transaction was executed in April 1970, any proceedings with reference to the said transaction were not initiated by any of the authorities for almost 21 years and thereafter suddenly in April 1991 present respondent No.2 filed an application under Section 73AA of the Code before the Collector and raised dispute with regard to the said transaction. The Deputy Collector considered the said application and after considering the submissions by present petitioner as well as present respondent No.2, he passed order dated 30.12.1992 and the notice Page 5 of 15 HC-NIC Page 5 of 15 Created On Mon Aug 14 02:05:04 IST 2017 C/SCA/7792/2005 JUDGMENT issued (upon application filed under Section 73AA by present respondent No.2) came to be withdrawn.
10. Feeling aggrieved by the order dated 30.12.1992 passed by the Deputy Collector, respondent No.2 filed revision application before the Secretary (Appeals). The said revision application was registered as Revision Application No.1 of 1998.
10.1 In the interregnum, the competent authority mutated two entries in respect of the land in question.
10.2 Respondent No.2, therefore, also challenged the legality and validity of the entries.
10.3 The dispute between the parties arose with regard to the said entries and the said dispute ultimately reached before the Secretary (Appeals).
11. The Secretary (Appeals) heard both the Page 6 of 15 HC-NIC Page 6 of 15 Created On Mon Aug 14 02:05:04 IST 2017 C/SCA/7792/2005 JUDGMENT matters together and after hearing the petitioner and respondent No.2, the Secretary set aside the order dated 22.1.1993 passed by the Deputy Collector in Case No.(73AA) 1/92. The Secretary also directed that Entry No.116 shall stand set aside / cancelled.
12. The petitioner has also claimed that in the interregnum he filed a suit, i.e. Regular Civil Suit No.13 of 1991 against present respondent No.2 and prayed for permanent injunction against respondent No.2 restraining him from disturbing his (i.e. petitioner's) possession.
13. It also appears that in the said suit the petitioner also filed application for interim relief (exh.5) and prayed for interim injunction. Learned Trial Court disallowed the application (exh.5) and that therefore the petitioner filed Appeal before the Asst. Judge. The Appeal was registered as Misc. Civil Appeal No. 89 of 1993. By order dated 31.3.1997 the learned Appellate Page 7 of 15 HC-NIC Page 7 of 15 Created On Mon Aug 14 02:05:04 IST 2017 C/SCA/7792/2005 JUDGMENT Court restrained present respondent No.2 from disturbing the plaintiff's (present petitioner) possession of the suit land admeasuring 3 Acres and 3 Gunthas in Village Dabaka Ta. Sagbara Dist. Bharuch.
14. According to the learned advocate for the petitioner the said injunction still operates and suit is pending before learned Trial Court. He also asserted that since more than 27 years the petitioner is in continuous possession of the land in question.
15. In this background the issue which actually arose before the authorities was whether the proceedings instituted under Section 73AA of the Act were maintainable and whether the said provision was attracted in case of a person from tribal community who purchased the land in question from nontribal.
15.1 The other issue which arose before the authority was as to whether the proceedings which Page 8 of 15 HC-NIC Page 8 of 15 Created On Mon Aug 14 02:05:04 IST 2017 C/SCA/7792/2005 JUDGMENT came to be instituted by the respondent No.1 after more than 20 years could have been entertained by the authority despite inordinate delay after the transaction was executed and relevant entries were mutated.
16. On examination of impugned orders it has emerged that while considering revision application, Secretary (Appeal) considered certain aspects related to the transaction and the documents in question, the said authority failed to address the issue about applicability of Section 73AA of the Act. The said Section 73 AA reads thus:
"73AA. Restriction on transfer of occupancies of tribals to tribals or nontribals. (1) Notwithstanding anything contained in Section 73, an occupancy of a person belonging to any of the Schedule Tribes (hereafter in this section and in section 73AB referred to as "(the tribal)" shall not be transferred to any person without the previous sanction of the Collector.
(2) The previous sanction of the Collector under subsection (1) may be given in such circumstances and subject to such conditions as may be prescribed.
(3)(a) Where tribal transfers the possession of his occupancy to another tribal in contravention of subsection (1), the tribal transferor or his successor in interest may, within two years of such transfer, apply to the collector that the possession of such occupancy may be restored to him and there upon the Collector shall, after issuing a notice to the transferee or his successor in interest, as the case may be in the prescribed form to show cause why he should not be disentitled to retain possession of the occupancy and after holding such inquiry as he deems fit, declare that the transferee or his successor in interest shall not be entitled Page 9 of 15 HC-NIC Page 9 of 15 Created On Mon Aug 14 02:05:04 IST 2017 C/SCA/7792/2005 JUDGMENT to retain possession of the occupancy and that the occupancy shall be restored to the tribal transferor or his successor in interest as the case may be, on the same terms and conditions on which the transferor held it immediately before the transfer and subject to his acceptance of the liability for payment of arrears of land Revenue in respect of such occupancy in accordance with the rules made by the State Government and that the transferee or his successor in interest as the case may, be shall be deemed to be unauthorisedly occupying the occupancy:
Provided that such declaration shall stand revoked if the tribal transferor, or, as the case may be, his successor in interest fails or refuses in writing to accept the restoration of the possession of such occupancy within the prescribed period.
(b) Where
(i) a tribal in contravention of subsection (1) of section 73A or of any other law for the time being in force has transferred his occupancy to another tribal at any time during the period commencing on the 4th April, 1961 and ending on the day immediately before the date of commencement of the Bombay Land Revenue (Gujarat Second Amendment) Act, 1980, and
(ii) the tribal transferee or his successor in interest has not been evicted from such occupancy under section 79A, the transfer of occupancy shall be valid, as if it were made with the previous sanction of the Connector under section 73A. (4) Where a tribal
(a) in contravention of subsection (1) of this section, or of subsection (1) of section 73A of any or other law for the time being in force, transfers his occupancy to any person other than a tribal (here after in this section and in section 73AB referred to as "the nontribal") at any time on or after the date of commencement of the Bombay Land Revenue (Gujarat Second Amendment) Act, 1980 (Gujarat 37 of 1980) (hereinafter in this section referred to as "the said date"); or
(b) in contravention of subsection (1) of section 73A or of any other law for the tribe being in force has transferred his occupancy or a nontribal at any time before the said date, The Collector shall, notwithstanding anything contained in any law for the time being in force, either suomotu at any time, or on an application made by the tribal transferor or his successor in interest at any time within three years from the said date or the date of such transfer, whichever is later, after issuing a notice to the transferee or his successor in interest as the case may be, to show cause why the transfer should not be declared void and after making such inquiry as he thinks fit, declare the transfer of such occupancy to be void and thereupon the occupancy together with the standing crops thereon, if any, shall vest in the State Government free from all encumbrances.
(5) Where an occupancy if vested in the State Government under subsection (4) and such occupancy was assessed or held for the Page 10 of 15 HC-NIC Page 10 of 15 Created On Mon Aug 14 02:05:04 IST 2017 C/SCA/7792/2005 JUDGMENT purposes of agriculture immediately before its transfer by the tribal transferor, the Collector shall, after taking necessary action under sections 79A and 202, give notice to the tribal transferor or his successor in interest, as the case maybe, requiring him to state in writing within ninety days from the date of receipt of such notice whether he is willing to purchase the occupancy and cultivate in personally, and if such tribal transfer or his successor in interest agrees to purchase the occupancy and undertakes to cultivate it personally, it maybe granted to him on payment of the prescribed occupancy price.
(6) If within the said period of ninety days the transferor or his successor in interest does not intimate his willingness to purchase the occupancy and to cultivate it personally, or fails to pay the occupancy price within such period as may be specified by the Collector, the occupancy shall be granted to any other tribal residing in the same village or in any other village situated within such distance from the village as may be prescribed on the same conditions, including the payment of the occupancy price, as are specified in subsection (5), and if he is not so willing, it shall be granted to other classes of persons in such order or priority at such occupancy price and subject to such conditions as may be prescribed. (7) Where any occupancy is transferred to a notribal in contravention of subsection (1) such nontribal shall, without prejudice to any other liability to which he may be subject, be liable to pay to the State Government, a penalty not exceeding three times the value of the occupancy, such penalty and value to be determined by the Collector, and such determination shall be, final:
Provided that before levying any such penalty, the non tribal shall be given a reasonable opportunity of being heard.
(8) The penalty payable under subsection (7) shall, if it is not paid within the time specified by the Collector, be recoverable as an arrear of land revenue. Explanation.For the purposes of this section,
(i) "prescribed" means prescribed by rules under section 214;
(ii) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed to be Scheduled Tribes in relation to the State of Gujarat under article 342 of the Constitution;
(iii) "to cultivate personally" shall have the meaning assigned to it in clause (6) of section 2 of the Bombay Tenancy and Agricultural Lands Act, 1948."
17. On plain reading of said provision it comes out that what is prohibited by Section 73AA is transfer of occupancy of land belonging to any Page 11 of 15 HC-NIC Page 11 of 15 Created On Mon Aug 14 02:05:04 IST 2017 C/SCA/7792/2005 JUDGMENT person of schedule tribe to tribal or nontribal.
18. The petitioner would contend that the said provision does not take into account its fold the transaction whereby tribal purchases land from nontribal inasmuch as in such transaction occupancy of land of person belonging to schedule tribe is not affected. Learned advocate for the petitioner would submit that in present case the petitioner being person of schedule tribe purchased land in question from nontribal and that therefore occupancy of land of any person of schedule tribe was not affected in any manner on account of the disputed transaction and that therefore the said Section was not at all attracted and applicable. Learned advocate for the petitioner contended that the said important aspect involved in the matter is not considered by the Secretary while passing the impugned order.
19. On examination of the order it comes out that the Secretary has addressed the issue, which Page 12 of 15 HC-NIC Page 12 of 15 Created On Mon Aug 14 02:05:04 IST 2017 C/SCA/7792/2005 JUDGMENT seems to have been raised by the respondent No. 2 viz. that any sale deed was not executed and the parties had executed only Agreement to Sell and sufficient stamp duty was not paid in respect of the disputed transaction and that therefore authority could not have taken cognizance of the said document and/or transaction. The Secretary seems to have addressed the said contention raised by the respondent no.2 however above mentioned contention by the petitioner is not addressed and is not dealt with by the Secretary in the impugned order.
20. Without recording conclusion that Section 73AA was attracted (or not) the secretary could not have directed that the orders passed by the deputy collector and the collector confirming the transaction and entry be set aside.
21. From the foregoing discussion it becomes clear that the contention raised by the petitioner deserves to be examined by the Secretary and in view of the fact that the said Page 13 of 15 HC-NIC Page 13 of 15 Created On Mon Aug 14 02:05:04 IST 2017 C/SCA/7792/2005 JUDGMENT vital aspect is not examined and is not dealt with and answered by the Secretary while passing impugned order, the said matter deserves reconsideration and for that purpose the impugned order deserves to be set aside.
22. Consequently following order is passed:
(a) The impugned order dated 21/12122004 passed by the Secretary (Appeal) in Revision Application No. 1/98 is set aside and the proceedings are remanded to the Secretary for rehearing and reconsideration and fresh decision.
(b) The Secretary shall grant opportunity of hearing to the parties and pass fresh order after dealing with the contention which may be raised by both sides, more particularly the contention / objection with reference to applicability of Section 73AA (in respect of the transaction in question whereby person of scheduled tribe purchased the land in question from nontribal and thereby the occupation by the person of Page 14 of 15 HC-NIC Page 14 of 15 Created On Mon Aug 14 02:05:04 IST 2017 C/SCA/7792/2005 JUDGMENT schedule tribe is not affected).
(c) The Secretary shall allow the petitioner and heirs of original respondent No.2 i.e. present respondent Nos.2.1 to 2.4 to raise all such contentions as may be available in law and the Secretary shall hear and decide the said Revision Application No.1/98 by passing fresh reasoned and speaking order dealing with all contentions which may be raised by both sides including the contention related to the applicability of Section 73AA of the Act in respect of the transaction in question.
With the aforesaid clarification the petition is partly allowed. Rule is made absolute to the aforesaid extent.
Orders accordingly.
Sd/ (K.M.THAKER, J.) Bharat Page 15 of 15 HC-NIC Page 15 of 15 Created On Mon Aug 14 02:05:04 IST 2017