Gujarat High Court
Vasantbhai Dalsukhbhai Vasava vs State Of Gujarat & 3 on 12 September, 2014
Author: Rajesh H.Shukla
Bench: Rajesh H.Shukla
C/SCA/17051/2004 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 17051 of 2004
With
SPECIAL CIVIL APPLICATION NO. 17106 of 2004
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
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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 ?
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VASANTBHAI DALSUKHBHAI VASAVA....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR. JINESH KAPADIA, LEARNED ADVOCATE with MR ASHISH H SHAH,
WITH MR. HARIN RAVAL, LEARNED ADVOCATE for the Petitioner(s) No. 1
MR. UDIT MEHTA, AGP for the Respondent(s) No. 1 - 3
MR DN PANDYA, ADVOCATE for the Respondent(s) No. 4
RULE SERVED BY DS for the Respondent(s) No. 1 - 3
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CORAM: HONOURABLE MR.JUSTICE RAJESH H.SHUKLA
Date : 12/09/2014
Page 1 of 11
C/SCA/17051/2004 JUDGMENT
COMMON ORAL JUDGMENT
1. The present Special Civil Applications are filed by the Petitioners under Articles 14, 19(1)(g), 21 and 300A and 226 of the Constitution of India as well as under the provisions of the Bombay Land Revenue Code, 1879 (hereinafter referred to as "the Code") for the prayer inter alia that the impugned order passed in Revision Application No. 3 of 2004 by the Additional Secretary (Appeals), Revenue Department dated 29.9.94 may be quashed and set aside and also the order passed in Case No.73AA/5/03 by the Deputy Collector, Rajpipla dated 25.3.2004 may be quashed and set aside on the grounds stated in the petition.
2. The brief facts of the case are that the petitioner and the Respondent No.4 are the relatives and the pedigree is also shown. As stated in this pedigree the original owner Natha Ishwar had a son - Narbhai Nathabhai. Narbhai Nathabhai had three sons - Valjibhai, Dalsukhbhai and Rajsinh. The present petitioner is one of the son of Dalsukhbhai and the petitioner of Special Civil Application No. 17106 of 2004 is one of the daughter of Rajsinh.
3. As the facts and the issues involved in both these Special Civil Applications are common and are arising out of the same transaction among the family members the petitions have been heard together.
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C/SCA/17051/2004 JUDGMENT
4. It is the case of the Petitioners that the forefather Nathabhai Ishwarbhai Vasava was a Police Patel in the erstwhile State of Rajpipla and in appreciation of their loyal satisfactory services the rights (patlai rights) were given by the erstwhile State of Rajpipla vide order dated 30.1.1939. It included three lands bearing Survey No. 218 (2 acres and 8 gunthas), Survey No. 280 (5 acres and 32 Gunthas) and Survey No. 180 (4 acres and 5 Gunthas). After the formation of the State of Gujarat as recorded in the order of the Prant Officer, Rajpipla dated 13.4.1994 produced at Annexure-C, it was granted to the Petitioners' forefather. The entry no.181 dated 2.9.1956 also came to be mutated in the village form 6 in the name of said Narbhai Nathabhai Vasava which is produced at Annexure-D. The said Narbhai Nathabhai Vasava had three sons as stated in detail in the petition and the respective lands were mutated in the names of the sons of Narbhai Nathabhai Vasava. The father of the Respondent No.4 - deceased Valjibhai Narbhai executed a writing before the Talati-cum-Mantri produced at Annexure-H stating that if the entries are mutated in the name of the other two brothers he has no objection. However, after the death of the father of Respondent No.4 - Valjibhai Narbhai the eldest brother of the petitioners' father his son Jaykulbhai suppressing the true and correct facts filed an application stating that the land bearing Survey No. 218 (new survey number 233/2) was illegally transferred and the possession was Page 3 of 11 C/SCA/17051/2004 JUDGMENT taken by the petitioners and also alleged that the Respondent No.4 had never transferred the said land in favour of the petitioners and the entries which are mutated are illegal which lead to the proceedings under Section 73AA of the Code. The Reply was given by the petitioners pointing out the factum of partition and the other facts. However, the Collector passed an order dated 25.3.2004 that there was a breach of Section 73AA and also ordered that the land in question be handed over back to the Respondent and the petitioners were ordered to be evicted. This has lead to a further proceedings before the Additional Secretary (Appeals) by way of Revision Application No. 2 of 2004 and the impugned order came to be passed which has been challenged by the petitioners on the ground that Section 73AA of the Code would not be attracted at all.
5. Heard learned Advocate Mr. Jinesh Kapadia for learned Counsel Mr. Harin Raval for the petitioners. Learned Advocate Mr. Jinesh Kapadia has referred to the papers at length with regard to the entries produced at Annexure-H, Annexure-J and Annexure-M and also the Circular produced at Annexure-N. Learned Advocate Mr. Jinesh Kapadia referred to the provisions of Section 73AA of the Code and submitted that if the transfer is not permissible then it would be attracted. However, learned Advocate Mr. Kapadia submitted that it would not apply to the facts of the present case as there is no transfer of the land or any interest in the land by the original owner in favour of the Page 4 of 11 C/SCA/17051/2004 JUDGMENT third party. He submitted that the transfer inter vivos amongst the family members of the family is not hit by such provisions of Section 73AA. He also submitted that in any case Section 73AA came into force in the year 1980 and the transactions which have taken place prior thereto would not hit by any such provision and therefore there is no question of any violation of provisions of Section 73AA. Learned Advocate Mr. Jinesh Kapadia also submitted that as provided in Section 73AA 3(b) of the Code such a transaction would not be hit and it is provided that even if such a transfer is made in contraventions of sub Section (1) of Section 73A the transfer of occupancy shall be valid. He submitted that since it is a devolution amongst the family members there is no question of transfer to a non-tribal.
6. Learned Advocate Mr. Jinesh Kapadia has referred to and relied upon the judgment reported in 2009 (2) GLH 511 - Bhil Khoda Ranmal and Anr. v. Joint Secretary, Appeal and Ors. . He submitted that as observed if the agricultural land is transferred by a tribal to the another tribal without approval of the Collector, even then the authority cannot confiscate the land under Section 73AA. He submitted that sub-Section (3) of Section 73AA of the Code is applicable only in case of transfer by a tribal to another tribal. Learned Advocate Shri Kapadia has also referred to and relied upon the judgment reported in 1996(1) GLH 718 - (Shri) Devilal Goljibhai Shah v. (Shri) K.C.Sagar or his successor Secretary (Appeals), Revenue Page 5 of 11 C/SCA/17051/2004 JUDGMENT Department, State of Gujarat & Ors. and submitted that even if such powers are required to be exercised it has to be within a period of 3 years. Learned Advocate Mr. Kapadia submitted that the transaction in question has taken place much earlier and in fact the father of the petitioners is appearing since 1976-77 and therefore such an issue could be considered within a period of 3 years and therefore the order passed by the Collector is without jurisdiction. He submitted that the authorities below have failed to consider this aspect. He pointedly referred to the application at Annexure-J and submitted that it was not made within the prescribed period of limitation as provided under Section 73AA 3 read with Section 73(4) of the Code. Similarly learned Advocate Mr. Kapadia submitted that the word "transfer" as used by the legislature has to be considered and it cannot be said to be a transfer. He emphasized that the property in question was a ancestral property and it has been given to the common ancestor by partition and therefore as explained in detail there is no transfer which would attract Section 73AA of the Code. Lastly, learned Advocate Mr. Kapadia submitted that the petitioners' family has been carrying out the agricultural operation to maintain the family and therefore it is the fundamental right under Article 19(1)(g) to carry on such agricultural operations which would affect their livelihood under Article 21. He therefore submitted that the constitutional right to property Page 6 of 11 C/SCA/17051/2004 JUDGMENT guaranteed under Article 300A is required to be attracted which are affected by such impugned action.
7. Learned AGP Mr. Udit Mehta referred to the papers and the affidavit in reply as well as the impugned order. He submitted that as per the ban imposed by the Government of Gujarat vide Notification dated 4.4.1961 of the Agricultural Land Department, the transfer of land in scheduled areas without the permission of the competent authority is invalid. He submitted that this Notification was brought into force w.e.f. 4.4.1961 and any transfer from the said date would require written permission from the Collector or the competent authority. He submitted that the present petitioners as per entry dated 20/71 dated 5.12.1979 have claimed this land as a division or partition in the family. He therefore submitted that the land could not have been transferred without prior permission of the Collector or the competent authority. He also submitted that Jaykul Valjibhai is the owner of the land but the Respondent lady has taken the possession illegally. Learned AGP submitted that the appeal was also preferred vide Case No.3 of 2004 by the Respondent No.4.
8. Learned AGP has placed on record one communication from the Collector, Rajpipla referring to the names of the others that is the widow of the Respondent No.4 in Special Civil Application No.17051 of 2004 - Jaykulbhai and his sons. The fact remains as it appears from the papers that the actual possession is with Page 7 of 11 C/SCA/17051/2004 JUDGMENT Vasantbhai Dalsukhbhai and Javerbhai Dhalsukhbhai.
9. In rejoinder learned Advocate has referred to the papers. The affidavit in reply is filed by Respondent No.4 who has also filed a separate Special Civil Application No. 17106 of 2004.
10. It is contended that the Talati-cum-Mantri has colluded and the petitioners have tried to treat the family members of the Respondents causing unlawful loss. He submitted that the partition has been effected between the brothers which has been acknowledged as per Annexure-E - entry No.627 in village Form VI. He therefore submitted that the property which is encroached upon by Respondent No.4 never belonged to him.
11. In view of this rival submissions, it is required to be considered whether the present petitions can be entertained.
12. As it transpires from the rival submissions and the papers and the record including the Annexure produced it is evident that the original owner Natha Ishwar Vasava was in service in the erstwhile State of Rajpipla and was awarded the land in question. The same has also been recognized by the State of Gujarat as per Annexure-C. Thus it is evident that the land belong to the ancestor of the petitioners and the Respondent No.4. The same was thereafter accepted as per the partition. The entry No.627 in the village form VI produced on record also refers to the fact that the Respondent No.4 has also accepted this for which the Kabulatnama Annexure-H has also been Page 8 of 11 C/SCA/17051/2004 JUDGMENT produced on record. Therefore as rightly contended when the land in question is devolved amongst the heirs of the original owner it cannot be said that there is any transfer of a land to a person other than the scheduled tribe. Therefore it would not be hit by by provision of law like Section 73A. Further the provisions of Section 73AA were amended as per the amendment made in the Code in the year 1980 whereas this transaction has taken place much earlier. The legislature has therefore clearly provided in Section 73AA 3(b) that the transactions which were there would be valid. Further the application is made beyond the period of 3 years as provided under the law and any such exercise of power of revision after the period prescribed would not be justified as the powers has to be exercised within a reasonable period. In any view of the matter even if for exercise of such powers beyond the period prescribed there has to be a justification which is not available in the present case. It is also well accepted that such powers have to be exercised within a reasonable period.
13. A useful reference can be made to the judgment of the Hon'ble Division Bench reported in 2013 (2) GLR 1788 - Chandulal Gordhandas Ranodriya and ors. v. State of Gujarat & Ors. where it has considered the catena of judicial pronouncements and the various aspects. Similarly in another judgment of the High Court reported in 2006 (1) GLH 51 - Punjabhai Jethabhai Patel v. State of Gujarat and Ors., Page 9 of 11 C/SCA/17051/2004 JUDGMENT the same issue has been considered and it has been observed:
Thus it is clear that the said provision applies to contravention of sub-section (1) of 73AA any time on or after the date of commencement of the Bombay Land Revenue (Gujarat Second Amendment), Act, 1980. Hence, transfer of occupancy by a tribal to a non-tribal prior to the coming into force of the Amendment Act of 1980 cannot be said to be a contravention falling within the ambit of sub-section (1) of section 73AA. In the facts of the present case the transfer of occupancy by way of exchange has been effected in 1976, that is much before the coming into force of the Amendment Act of 1980, hence, the same cannot in any manner said to be in contravention of sub-section (1) of section 73AA of the Code."
14. Thus the provisions of Section 73AA cannot be resorted to when it was not brought into force when the transaction took place and therefore it will not have any application. The restriction imposed on such transfer of the land subject to which it could be transferred the power could be exercised in the manner provided in the Code or the statute.
15. Therefore in light of the settled position and the observations made as discussed above, both these petitions deserve to be allowed and the impugned order cannot be sustained. Accordingly, the prayer in terms of paragraph 24(C) Page 10 of 11 C/SCA/17051/2004 JUDGMENT deserves to be granted and the order passed in Revision Application No. 3 of 2004 by the Additional Secretary (Appeals), Revenue Department dated 29.9.94 and also the order passed in Case No.73AA/5/03 by the Deputy Collector, Rajpipla dated 25.3.2004 are hereby quashed and set aside. Rule is made absolute. No order as to costs.
(RAJESH H.SHUKLA, J.) JNW Page 11 of 11