Gujarat High Court
Bediben D/O Budhiyabhai ... vs District Collector & on 15 October, 2013
Author: Anant S.Dave
Bench: Anant S. Dave
BEDIBEN D/O BUDHIYABHAI RATHODW/OAJESHBHAI KALPESHWAR JHA....Petitioner(s)V/SDISTRICT COLLECTOR C/SCA/2645/2012 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2645 of 2012 with CIVIL APPLICATION NO. 9152 of 2012 in SPECIAL CIVIL APPLICATION NO. 2645 of 2012 ================================================================ 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 JK SHAH AGP for the Respondent(s) No. 2 NOTICE SERVED for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE ANANT S. DAVE Date : 15/10/2013 ORAL ORDER
1 Heard learned advocates for the parties.
2 Learned advocate for the petitioner relies on provisions of Section 73AA of the Bombay Land Revenue Code, 1879 [for short, `the Code, 1879'] and submits that subject occupancy/land was a case of transfer of such occupancy by tribal to non-tribal. In the above context, reliance placed by the Deputy Collector, City Prant Surat that proviso to Section 79A pertaining to applicability of summary eviction of person unauthorizedly occupying lands will be of no consequence inasmuch as the proviso has reference to clause [a] of subsection [3] of section 73AA of the Code, 1879 will apply in case of transfer of occupancy / land by tribal to another tribal. Even proceedings were initiated under subsection [4] of section 73AA of the Code, 1879 and the Collector is duty bound to carry out the mandate of the Code, 1879.
3 Ms. Varsha Brahmbhatt, learned advocate appearing for the applicants of Civil Application No.9152 of 2012 for joining as parties to the main petition, though not joined as on date, but contend that the petitioner has committed breach of provisions of the Code, 1879 and is not entitled for prayer as made in this petition, including re-occupancy of the land in question and that applicants have purchased the land by way of sale deed and even exchanged land with original occupant and that the petitioner, a tribal women, has lost her status as tribal upon her marriage to person belonging to general category. She further submits that in view of the above no relief as prayed for can be granted in favour of the petitioner.
4 Having heard learned advocates for the parties and on perusal of the record, when the land / occupancy is transferred by tribal to non-tribal, proviso to Section 79A of the Code, 1879 will not be applicable and respondent District Collector is directed to proceed further from the stage of subsection [4] of section 73AA of the Code, 1879 and take action in accordance with law.
Post the matter on 27th November, 2013.
Direct service is permitted.
(ANANT S.DAVE, J.) pvv Page 2 of 2