Gujarat High Court
For Approval And Signature vs District Collector & on 22 March, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/2645/2012 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 2645 of 2012
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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 ?
BEDIBEN D/O BUDHIYABHAI RATHODW/OAJESHBHAI KALPESHWAR
JHA....Petitioner(s)
Versus
DISTRICT COLLECTOR & 1....Respondent(s)
Appearance:
MR YM THAKKAR, ADVOCATE for the Petitioner(s) No. 1
MR RAKESH PATEL AGP for the Respondent(s) No. 2
RULE SERVED for the Respondent(s) No. 1
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 22/03/2017
ORAL JUDGMENT
Heard Mr. Thakkar, learned advocate for the petitioner, and Mr. Patel, learned AGP for the respondent - State.
2. In present petition, the petitioner has Page 1 of 10 HC-NIC Page 1 of 10 Created On Mon Aug 14 23:46:57 IST 2017 C/SCA/2645/2012 JUDGMENT prayed, inter alia, that:-
"10A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus / certiorari or any other appropriate writ, order or direction to quashed and set aside non-action of the Res.No.1 District Collector, Surat by directing him to take appropriate steps envisaged under Section 73AA, 79A and 202 of the code for the land bearing survey number 173/3 and 175/1 of village Katargam, Taluka: City District Surat, in the interest of justice.
B) YOUR LORDSHIPS may be pleased to call for the explanation from the District Collector, Surat for the non compliance of mandatory statutory duty cast under provisions of the Gujarat Land Revenue Code despite reminded time and again and further be pleased to direct the State Government to take appropriate disciplinary steps against the defaulting authority in the interest of justice.
C) YOUR LORDSHIPS may be pleased to call for the explanation from the District Collector, Surat for the non compliance of mandatory provisions of the Gujarat Land Revenue Code despite reminded time and again and further be pleased to direct the State Government to take appropriate disciplinary steps against the defaulting authority, pending admission, hearing and final disposal of the present petition."
3. Actually, a petition under Article 226 of the Constitution of India for "setting aside non- action of the authority", does not deserve to be entertained, more particularly when the authority, in response to any request for particular action, has not refused to take the action.
4. Further, in present petition, any order of the nature which the petitioner has requested for is, if granted at this stage, likely to affect the provision related to time limit prescribed for taking action in accordance with applicable Page 2 of 10 HC-NIC Page 2 of 10 Created On Mon Aug 14 23:46:57 IST 2017 C/SCA/2645/2012 JUDGMENT provisions. Therefore also, the request in the petition does not deserve to be accepted, otherwise, it would negate the provision prescribing time limit.
5. So as to appreciate the position that the relief prayed for in the petition cannot be entertained and granted, it is appropriate to take into account factual background. The petitioner has averred and stated that:-
"(3.1) The petitioner approached to the office of the District Collector u/s.73AA for the possession of such occupancy of the land bearing survey number 173/3 and 175 of Village: Katargam, District: Surat. The Office of the Collector, pursuant to the aforesaid application, directed the office of the Dy. Collector to instate proceedings u/s. 73AA and hence notice dated 03- 05-07 u/s. 73AA of the code by the Dy. Collector.
(3.2) The proceedings initiated by the Dy. Collector u/s.73AA of the code vide notice dated 03-05-07 was registered as Case No.JAMAN/73AA(4)/2/07. The Dy. Collector, after affording appropriate opportunity of being heard all the affected parties, was pleased to pass order dated 29-12-08 by holding the transfer of land against the provision of Se.73AA(1) and set it aside by exercising the powers u/s 73AA(4) of the code and land was ordered to be resumed with the state Government.
(3.3) The transferees of the aforesaid land in question, being aggrieved by the order passed by the Dy. Collector dated 29-12-08, approached the office of District Collector, Surat u/r 108(5) of the Gujarat Land Revenue Rules, 1972 by way of appeal bearing no.JMAN/73AA/Case No.3/09.
(3.5) It is pertinent to note that the aforesaid appeal was preferred by only 4 transfees out of total 66 transferees of the land against the order passed by the Dy. Collector dated 29-12-08. Therefore, the order passed by the Dy. Collector has attained finality for the 62 transferees since they have not preferred any appeal challenging the order passed u/s 73AA(4) of the Code.
(3.6) It is submitted that the District Collector, vide Page 3 of 10 HC-NIC Page 3 of 10 Created On Mon Aug 14 23:46:57 IST 2017 C/SCA/2645/2012 JUDGMENT order dated 28-06-10, was pleased to confirm the order passed by the Dy. Collector dated 29-12-08 in Case No.JMAN/73AA(4)/2/07. The District Collector was pleased to hold that the land in question was transferred to non-tribal persons and as the same is prohibited u/s.73AA of the Code, the Dy. Collector has rightly exercised powers u/s.73AA(4) by forfeiting the land with the state government.
(3.7) It is submitted that the District Collector after holding transfer illegal u/s 73AA(4) of the Code ought to have offered petitioner occupancy of the land in question. It is submitted that the sec.73AA(5) makes it obligatory for the District Collector to initiate action u/s 79A and 202 of the Code for the purpose of evicting transferees who are occupying on the strength of document that is set aside by the Dy. Collector vide order dated 29-12-08 and as confirmed by the Collector vide order dated 28-06-10.
Once the eviction process gets over, the District Collector is required to issue notice to the tribal transferor to inquire whether he is willing to purchase the occupancy and cultivate the land personally. If the tribal transferor agrees to purchase the occupancy and undertakes to cultivate it personally the land in question be granted to him upon payment of the prescribed occupancy price.
It is submitted that despite the District Collector passed order on 28-06-10 confirming the order of Dy. Collector dated 29-12-08, no steps have been initiated by the District Collector as envisaged u/s. 73AA of the code and therefore the petitioner alongwith other family members preferred representation dated 25/10/2010 requesting the District Collector to initiate appropriate proceedings to hand over possession of the land in question.
(3.7) It is submitted that, the petitioner constrained to prefer the present petition as the District Collector has not passed any order on the representation preferred by the petitioner. In view of these facts, the petitioner has approach this Hon'ble Court with folded hands for redressal of her grievances."
(5.1) The petitioner respectfully submits that the father of the petitioner was tenant of land bearing survey number 173/3 and 175/1 of village Katargam, District:
Surat.
(5.2) The name of the Father of the petitioner was mutated in the revenue record vide Entry No.1622 dated 11-01-55 showing him as a tenant of the said land.
(5.3) On 27-06-61 the Mamlatdar and ALT was pleased to pass order declaring father of the petitioner Budhaibhai Nathubhai tenant of the said land.
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C/SCA/2645/2012 JUDGMENT
(5.4) On 01-04-75 vide entry number 4501, the competent authority issued certificate of purchase under section 32(M) in the name of Father of the petitioner.
(5.5) Since the father of the petitioner passed away in the year 1971, the name of the Father of the petitioner was deleted vide entry number 4502 and name of other legal heirs were mutated in the revenue record including name of the petitioner.
(5.6) It is submitted that since the land in question, bearing survey number 173/3 and 175/1 of village Katargam, was new tenure land having restrictions of the nature of section 43(G), the petitioner and other legal heirs executed power of attorney in favor of one Laljibhai Madhabhai in the year 1989 for the purpose of getting land in question converted into old tenure land and also for the purpose of getting non-agricultural permission from the competent authority.
(5.7) It appears, the aforesaid Laljibhai Madhabhai, power of attorney holder misused said power and executed documents in favour of various persons behind the back of petitioner and other family members. The said facts came to the knowledge of petitioner and others and therefore immediately the same was brought to the notice of to the concerned District Collector in the year 2004.
It is submitted that petitioner and other family members immediately issued public notice in the local newspaper to that effect in the February 2004. It is pertinent to note that the land in question where new tenure land having restrictions of the section 43(G) of Bombay tenancy act and also as the petitioner belongs to schedule tribal, the land in question was prohibited to be transferred to non tribal u/s.73AA of the code. Therefore the land in question could not have been sold without obtaining prior permission of the District Collector and that too, to the persons belonging to non tribal community. It is submitted that not only that the land in question could not have been sold without obtaining NA permission from the competent authority as the same was transferred to the non-agriculturists for the purpose of residence.
(5.8) It is submitted that the petitioner and other family members persistently complained about the fraud committed by the aforesaid power of attorney holder who took undue advantage of a illiteracy of the petitioner and other family members. The Mamatldar and ALT was pleased to issue notice dated 11-04-07 to take appropriate steps against the persons who occupied the land and constructed on it illegally. The said notice was issued after they mother of the petitioner was examined by the Mamlatdar. It appears that thereafter petitioner had approach this Hon'ble High Court by way Page 5 of 10 HC-NIC Page 5 of 10 Created On Mon Aug 14 23:46:57 IST 2017 C/SCA/2645/2012 JUDGMENT of Special Civil Application No.30895 of 2007 and the said petition came to be withdrawn vide order dated 16- 07-08 with a view to raise contentions before the Mamlatdar that were raised in the petition."
6. With reference to the said facts of the case, the respondent Dy. Collector has filed affidavit dated 4.8.2012 stating, inter alia, that:-
"4. ...I say and submit that in view of aforesaid provision, it is crystal clear that it is obligatory on the part of the transferor i.e. petitioner herein, to apply to the Collector for restoring her possession within a period of TWO YEARS OF SUCH TRANSFER. I say and submit that in the present case, such transfer of the land in question was made in the year 1990, whereby registered sale deeds were produced before the competent authority and the petitioner has for the very first time made an application for restoring her possession only in the year 2006 i.e. after a period of MORE THAN 15 YEARS from the date of such transfer. Therefore also, the petitioner is not entitle to get her possession restored, which has already been transferred way back in the year 1990.
I further say and submit that the petition is also required to be rejected on the ground that the petitioner has in the present petition inter alia prayed for specific direction to the Collector, the respondent No.1 herein to initiate proceedings qua restoring possession of the petitioner which was taken over way back in the year 1990 and the petitioner approached the respondent - authority only in the year 2006, which is even as per the aforesaid provision of the Code a time barred application. Thus, the petitioner has approached the authority after in the year 2006 i.e. after a period of more than 15 years suddenly after waking up from slumber. Thus, present petition is required to be rejected only on the ground of a huge delay, laches and acquiescence. I say and submit that the petitioner after the transfer of the land was made in the year 1990, the petitioner acquiesced with the fact. It is pertinent to note that in one of the decisions of the Hon'ble Supreme Court in the case of Shivdas v. Union of India, reported in AIR 2007 SC 1330, the Hon'ble Supreme Court has categorically observed that the petition challenging the order/action of the authority after a reasonable period i.e. after a period of more than 3 years, shall not be entertained. Thus, the Apex Court has deprecated such practice of such negligent litigants filing petition after a period of more than three years from the date of such order/inaction. It is required to be noted that even this Hon'ble Court in certain petitions adopting the view taken by the Hon'ble Supreme Court in the above cited Page 6 of 10 HC-NIC Page 6 of 10 Created On Mon Aug 14 23:46:57 IST 2017 C/SCA/2645/2012 JUDGMENT decision has rejected the petitions challenging the order passed prior to three years. Therefore also, this Hon'ble Court may be pleased to reject present petition taking into consideration the settled legal position. Hence, only on the ground of delay, laches and acquiescence, the present petition is required to be rejected on the threshold.
I say and submit that the petitioner is also estopped from making any such grievance after a period of more than 15 years i.e. when the petitioner made an application to the respondent - authority for the first time in the year 2006. Thus, the present petition also suffe3rs from the bar of principle of estaoppel since after having acquiesced the fact of transfer of land for a period of more than 15 years, the petitioner is estopped from filing present petition. Therefore also, the same is required to be dismissed in the interest of justice.
...I say and submit that insofar as initiation of proceedings under Section 202 of the Code is concerned, it is pertinent to note that the respondent - authority has already exercised its powers under Section 73AA(4) of the Code and vested the land in the Government. Therefore, the petitioner has no locus to make any prayer for removal of encroachment qua the land which is not being either possessed or owned by the petitioner. Therefore, only on the ground of locus standi the prayer of the petitioner qua initiation of proceedings under Section 202 of the Code is not required to be granted.
I say and submit that insofar as the contention of the petitioner qua initiation of proceedings under Section 73AA(5) of the Code is concerned, it would be beneficial to reproduce the relevant extract of the said provision for the sake of brevity and convenience:
"73AA(5) : Where an occupancy if vested in the State Government under sub-section (4) and such occupancy was assessed or held for the purpose of agriculture immediately before its transfer by the tribal transferor, the Collector shall, after taking necessary action under sections 79-A and 202, give notice to the tribal transferor or his successor in interest, as the case may be , ...."
I say and submit that here in the present case, in view of the provisions of Section 79-A of the Code, especially proviso to Section 79-A of the Code, since the petitioner has not approached the respondent - authority within the prescribed time limit of two years, there is no question of initiation of proceedings under Section 79-A and, therefore, there is no question initiation of proceedings under Section 73AA(5) of the Code, since this proceeding can be initiated only after the proceedings are initiated under Section 79-A as provided in the above quoted provision. Therefore also, the present petition, which is devoid of any substance and merit is required to be dismissed.
I say and submit that looking to the facts and Page 7 of 10 HC-NIC Page 7 of 10 Created On Mon Aug 14 23:46:57 IST 2017 C/SCA/2645/2012 JUDGMENT circumstances of the case, it transpires that for the sale of lands which was done in the year 1990, since the transferees have not obtained their registered sale deed from the office of the sub-registrar till date and the case is pending even today, to the best of the knowledge of the deponent herein, the petitioner has filed present petition at their instance since the land purchased by them has been vested in the Government. Thus, the present petition is nothing but a sponsored petition at the instance of the transferees."
7. Besides the said affidavit, another affidavit dated 10.12.2013 is also filed by the Dy. Collector wherein it is averred and stated that:-
"2. I respectfully say and submit that this Hon'ble Court has passed an order dated 15.10.2013 directing the Collector, Surat to take appropriate steps in accordance with law under the provisions of Section 73AA of the Bombay Land Revenue Code, 1879. I further say and submit that pursuant to the aforesaid order the Deputy Collector, Surat, City: Prant has issued notice dated 03.12.2013 to the concerned parties under Section 73AA of the Bombay Land Revenue Code, 1879. The date of hearing is fixed by the authority on 23.12.2013 at 11.30 am. Copy of the notice dated 03.12.2013 has already been dispatched to the concerned parties. ...
3. I respectfully say and submit that the notice issued by the Deputy Collector, Surat, City: Prant since the power to issue notice under Section 73AA of the Bombay Land Revenue Code, 1879 are with the Deputy Collector, Surat. Therefore, it is requested to this Hon'ble Court to kindly take on record the present additional affidavit alongwith the notice dated 03.12.2013 and passed order of compliance in light of the directions given by this Hon'ble Court vide order dated 15.10.2013."
8. The above mentioned details have brought out the fact that after the order dated 29.12.2008 came to be passed, the petitioner filed present petition in 2012 and by now, almost 8 years have passed. The said averments, particularly by the petitioner, have also brought out that, the petitioner has, to justify his allegations and Page 8 of 10 HC-NIC Page 8 of 10 Created On Mon Aug 14 23:46:57 IST 2017 C/SCA/2645/2012 JUDGMENT request, invoked Section 73(AA), Section 79(A) and Section 43(G). It is held that any action for said provision should be taken within prescribed time limit and where time limit is not prescribed then the action should be taken within reasonable time.
8.1 Under the circumstances, if any direction to initiate actions in pursuance of the said order is passed by this Court, then, it is likely to amount to direction to the authority to disregard provisions related to time limit and/or the decision by Hon'ble Apex Court (that action under the Code where time limit is not prescribed, should be taken within reasonable time).
8.2 Therefore, in the facts and circumstances of this case, this Court considers to issue any direction as prayed for.
However, it is clarified that if any cause of action survives in favour of the petitioner and if they have any right, claim or title to seek any action/direction under the provisions of the Code or any other law and if the applicant has filed any application (which is yet not decided) or if the applicant files any application before the competent authority then such authority shall consider such application and pass appropriate order in accordance with law and after having Page 9 of 10 HC-NIC Page 9 of 10 Created On Mon Aug 14 23:46:57 IST 2017 C/SCA/2645/2012 JUDGMENT regard to judicial pronouncements or will take appropriate action in accordance with law and in light of decided cases and after hearing all concerned and interested parties.
With aforesaid observations and directions, present petition stands disposed of. Rule is discharged.
Sd/-
(K.M.THAKER, J.) kdc Page 10 of 10 HC-NIC Page 10 of 10 Created On Mon Aug 14 23:46:57 IST 2017