Gujarat High Court
Savitaben Widow Of Ishwarbhai ... vs State Of Gujarat & 3 on 17 March, 2016
Author: A.J.Desai
Bench: A.J.Desai
C/SCA/15700/2013 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15700 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE A.J.DESAI
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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 or any order made
thereunder ?
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SAVITABEN WIDOW OF ISHWARBHAI MANGABHAI RATHOD....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
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Appearance:
MR P P MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
MR SP MAJMUDAR, ADVOCATE for the Petitioner(s) No. 1
MR V R JANI, AGP for the Respondent(s) No. 1 3
MR H M JADEJA, ADVOCATE for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE A.J.DESAI
Date : 17/03/2016
ORAL JUDGMENT
1. By way of the present petition filed under Articles 14, 19(1)(g), 21, 226 and 227 of the Constitution of India, the petitioner has challenged three orders dated 16.06.2010 passed by the Deputy Collector, Bardoli in Appeal No. 3 of 2009, by which the Deputy Collector has held that the petitioner, who belongs to Scheduled Caste, has committed breach of Section 73(AA)(1) of the Bombay Land Revenue Code, 1979 (herein after referred to as 'the Code' Page 1 of 12 HC-NIC Page 1 of 12 Created On Thu Mar 24 00:29:04 IST 2016 C/SCA/15700/2013 JUDGMENT for short) and has ordered that the land in question, which was given to the husband of the petitioner being a tribal, shall be vested in the State Government free from all encumbrances as well as has also challenged the order dated 18.06.2011 passed by the District Collector, Surat in Appeal No. 1 of 2011 as well as the order dated 24.05.2013 passed by the Secretary, Revenue Department in Revision Application No. 7 of 2011 by which the Appellate Authority as well as the Revisional Authority have confirmed the order passed by the Deputy Collector.
2. Brief facts arise from the record are as under:
2.1. That 10 (Ten) scheduled tribal persons were allotted a piece of land admeasuring 101 sq.mtrs. of village Asta, Taluka Kamrej, District Surat to construct the huts for their residential purpose.
Accordingly, an entry was mutated in Form No. 6 as an entry No. 62 on 29.01.1952.
2.2. The husband of the petitioner namely Ishwarbhai Maganbhai Rathod was one of the said 10 tribals, who were permitted to construct the residential premises. Said Ishwarbhai Maganbhai Rathod expired on 05.05.2006. The petitioner i.e. widow of Ishwarbhai Maganbhai Rathod submitted an application on 11.12.2008, under Section 73(AA) of the Code to the Deputy Collector and pleaded that by creating forged agreement, Dayaram Kalyan Patel i.e. respondent No. 4, herein, has purchased the property and has constructed the house and handed over to the other persons. It was further contended by the petitioner that since respondent No. 4 was a nontribal person, the socalled agreement be cancelled and action under Sections 73(A) and 73(AA) of the Code may be taken and the possession of the Page 2 of 12 HC-NIC Page 2 of 12 Created On Thu Mar 24 00:29:04 IST 2016 C/SCA/15700/2013 JUDGMENT property, which was allotted to the husband of the petitioner as a tribal, shall be handed over to her.
2.3. The said case was numbered as appeal No. 3 of 2009. The Deputy Collector called for a report from Mamlatdar, Taluka Kamrej and after perusing the documentary evidence produced along with the report and also after hearing the petitioner as well as respondent No. 4 came to the conclusion that the petitioner has committed breach of Section 73(A) of the Code. It was further held that the land, which was allotted to the husband of the petitioner vests to the State Government free from all encumbrances for the breach of Section 73(A) of the Code. The said decision was challenged by way of appeal and subsequently the revision, which have been dismissed as stated herein above. Hence this petition.
3. Notices have been issued to the respondents. Mr.V.R.Jani, learned AGP, has argued on behalf of the respondent Nos. 1, 2 and 3. Mr.Jadeja, learned advocate appearing for respondent No. 4 is not present. None of the respondents have filed affidavitinreply.
4. Mr.S.P.Majmudar, learned advocate for the petitioner, would submit that the Deputy Collector, Bardoli Prant, Bardoli, District Surat has passed the impugned order contrary to the provision of Section 73(A) of the Code as well under Section 73(AA) of the Code. He would further submit that specific contention was raised before the Deputy Collector that a forged agreement to sell has been created by obtaining a signature of her deceased husband namely Ishwarbhai Maganbhai Rathod way back in 1992 and therefore, she was entitled for the relief as prayed for by her. He would further submit that as per Section 73(AA)(4) of the Code, if it is found that a tribal transfers his occupancy to any other Page 3 of 12 HC-NIC Page 3 of 12 Created On Thu Mar 24 00:29:04 IST 2016 C/SCA/15700/2013 JUDGMENT person, who is nontribal, the Collector, after passing order of vesting the land in the State Government, is bound to follow the procedure prescribed under Section 73(AA)(5) of the Code. The Deputy Collector ought to have called upon the tribal transferor whether he/she is ready and willing to pay the occupancy price, if the land is again granted to him/her. He would further submit that the petitioner has already filed civil suit against respondent No. 4 being Civil Suit No. 499 of 2011 in the Court of learned Principal Civil Judge (S.D.), Surat wherein the respondents are made parties and prayed for declaration that the socalled transfer to respondent No. 4 may be declared as illegal since the same is contrary to Section 73(AA) of the Code. She has also prayed that the possession of the house belongs to respondent No. 4 may be handed over to her, which is pending for final disposal and therefore, the Appellate Authority as well as the Revisional Authority ought not to have confirmed the order passed by the Deputy Collector.
5. It was further argued by the learned advocate for the petitioner that while passing the order dated 16.06.2010, the Deputy Collector has made certain observations, which are contrary to the proceedings being undertaken by him. By taking me through the observations, which are reflected in Para 1 to 5 were not required to be made at all while deciding the proceedings under Sections 73(A) and 73(AA) of the Code. It was further argued by the learned advocate for the petitioner that this contention was raised before the Appellate Authority as well as the Revisional Authority, however, the same have not been dealt with by both the authorities. He, therefore, would submit that the present petition may be allowed and the order passed by the Deputy Collector, Page 4 of 12 HC-NIC Page 4 of 12 Created On Thu Mar 24 00:29:04 IST 2016 C/SCA/15700/2013 JUDGMENT which came to be confirmed by the Appellate Authority as well as Revisional Authority, be quashed.
6. On the other hand, Mr.V.R.Jani, learned AGP, has vehemently opposed this petition and submitted that the three authorities below have examined the case in detail and after perusing the documentary evidence available on record, have rightly passed the orders, by which the land in dispute, which was illegally transferred to a nontribal, has been directed to be vested in the State Government. By taking me through the order of Deputy Collector, he would further submit that for the first time in the year 2008, the widow came forward with the case that respondent No. 4 had forged agreement by which her husband had agreed to transfer the property. Though the transaction is of the year 1992, she has filed such application after 10 years and that too after two years of death of her deceased husband. He would further submit that her deceased husband namely Ishwarbhai, though alive upto 2006, has never challenged the said agreement. He would further submit that the Mamlatdar has collected sufficient evidence, which establishes that other tribals including the deceased husband of the petitioner had exchanged the land with respondent. All these tribals are residing in block No. 438, which belonged to respondent No.4. Prior to the said transaction, a pakka construction has been made on the said block No. 438 by the present petitioner and the other tribals. The present petitioner had admitted that 9 such houses have been constructed on the said block No. 438. However, she had not explained why she had given permission to construct the same houses on the land, which was allotted to her husband. He would further submit that when the Mamlatdar visited the place, one Santosh Ratan Marathi was Page 5 of 12 HC-NIC Page 5 of 12 Created On Thu Mar 24 00:29:04 IST 2016 C/SCA/15700/2013 JUDGMENT residing at the instance of respondent No. 4 on the disputed piece of land, on which the pakka construction has been made at the instance of respondent No.4.
7. He would further submit the Collector has not committed any error by not providing an opportunity to the tribal for regranting of land under Section 73(AA)(5) of the Code since it was a residential premises and not an agricultural land, which was given to the deceased husband of the petitioner. He would further submit that after pocketing the money from respondent No. 4, the allottee i.e. deceased husband of the petitioner had exchanged the land with respondent No. 4. An application had been filed under Section 73(AA) of the Code with some ulterior motive, which has resulted into the impugned order which is a legal one. He would further submit that civil suit has been filed with a prayer that the possession of the property may be handed over to her. The suit has been filed after the order passed by the Deputy Collector in the year 2010. He would further submit that this Court may not exercise powers under Section 227 of the Constitution of India and the petition may be dismissed.
8. I have heard learned advocates for the respective parties. Perused the orders impugned in the petition as well as the annexures along with the petition. It appears from the record that total land of 101 sq.mtrs. was given to 10 tribals to construct houses in the year 1954 and the husband of the petitioner was one of them. Accordingly, an entry was made in the revenue records. It also appears that the land was exchanged between all ten tribals, as well as respondent No. 4. Block No. 438 belonged to respondent No. 4 was given to tribals wherein 9 small houses were Page 6 of 12 HC-NIC Page 6 of 12 Created On Thu Mar 24 00:29:04 IST 2016 C/SCA/15700/2013 JUDGMENT constructed by the tribals. It also appears from the statement of the petitioner herself that her husband had also shifted in a house constructed on block No. 438 since last 18 years. It is an undisputed fact that the husband of the petitioner has expired on 05.05.2006 and never came forward by filing any application before any authorities with regard to socalled breach of right under Sections 73(A) and 73(AA) of the Code. Primafacie it appears that all the tribals jointly agreed for exchange of the land with respondent no. 4, which itself was illegal way back in the year 1992. Therefore, in my opinion, it is the clear case of breach of Section 73(AA) of the Code and therefore the Deputy Collector has rightly exercised his powers so far as the passing of order of vesting the land in State Government is concerned. I have also perused the plaint of the suit, wherein a decree has been sought for from the Civil Court that the entries, which has been registered in Asta Gram Panchayat at Register No.2837 be declared as void since it is contrary to the provisions of Section 73(AA) of the Code. A decree has also been prayed that the possession of the property constructed on the land allotted to the tribals be handed over to her from respondent No. 4. It is an undisputed fact that this suit is filed subsequent to order passed by the Deputy Collector in the year 2010. The prayers are primafacie also establishes that the possession of the disputed property is not with the petitioner.
9. As far as the submissions made by Mr.Majmudar, learned advocate for the petitioner, with regard to Section 73(AA)(5) of the Code, I am of the opinion that the same would not be applicable since it deals with the allotment of land to the tribals for the purpose of agricultural land.
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C/SCA/15700/2013 JUDGMENT
10. The provisions of Section 73(A) and 73(AA) read as under:
"73A. Power to restrict right of transfer:
(1) Notwithstanding anything in the foregoing section, in any tract or village to which the State Government may, by notification published before the introduction therein of an original survey settlement under section 103, declare the provisions of this section applicable, occupancies shall not after the date of such notification be transferable without the previous sanction of the Collector.
(2) The State Government may, by notifications in the Official Gazette, from time to time exempt any part of such tract or village or any person or class of persons from the operation of this section.
Section 73AA. Restriction on transfer of occupancies of tribal to tribal or nontribal. : (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 Page 8 of 12 HC-NIC Page 8 of 12 Created On Thu Mar 24 00:29:04 IST 2016 C/SCA/15700/2013 JUDGMENT deems fit, declare that the transferee or his successor in interest shall not be entitled 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 4 t h 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 Page 9 of 12 HC-NIC Page 9 of 12 Created On Thu Mar 24 00:29:04 IST 2016 C/SCA/15700/2013 JUDGMENT 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 non tribal 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 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 Page 10 of 12 HC-NIC Page 10 of 12 Created On Thu Mar 24 00:29:04 IST 2016 C/SCA/15700/2013 JUDGMENT 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 no tribal 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 nontribal 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."
11. In the present case, it was a residential premises, which has been transferred to a person, who is a nontribal. Even otherwise a person is not entitled for any relief for his own wrong. Therefore, I do not find any reasons to exercise my powers under the writ jurisdiction. Hence, the present petition is stands disposed of as dismissed. Notice is discharged.
12. However, it is hereby made clear that the observations made by the Deputy Collector in his order 16.06.2010, which are referred Page 11 of 12 HC-NIC Page 11 of 12 Created On Thu Mar 24 00:29:04 IST 2016 C/SCA/15700/2013 JUDGMENT to in para 1 to 5 shall not come in the way of any of the parties, if any proceedings herein after initiated or already initiated by the concerned authorities since he himself has stated that the certain procedure is required to be followed in accordance with law. The authority shall decide such proceedings in accordance with law.
(A.J.DESAI, J.) *Kazi...
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