Gujarat High Court
Heirs Of Shanabhai Shindabhai Vasava vs State Of Gujarat on 14 June, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/8221/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8221 of 2016
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HEIRS OF SHANABHAI SHINDABHAI VASAVA
Versus
STATE OF GUJARAT
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Appearance:
MR JINESH H KAPADIA(5601) for the PETITIONER(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6,
1.7,2, 2.1,2.2,2.3,2.4,2.5,2.6,3,3.1
MR MANAN MEHTA, ASST.GOVERNMENT PLEADER for RESPONDENT No.1
DELETED(20) for the RESPONDENT(s) No. 4,6
MR PY DIVYESHVAR(2482) for the RESPONDENT(s) No. 3,5
NOTICE SERVED(4) for the RESPONDENT(s) No. 1,2
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 14/06/2018
ORAL ORDER
Heard learned advocate Mr.Jinesh Kapadia for the petitioners and learned Assistant Government Pleader Mr.Manan Mehta for the respondent - State.
2. The petitioners have challenged order dated 21.12.2015, passed by the Secretary, Revenue Department (Appeals), which is the common order dismissing Revision Application No.8 of 2006 as well as Revision Application No.9 of 2006, in so far as the order relates to dismissal of Revision Application No.9 of 2006 preferred by the petitioners herein.
Page 1 of 7 C/SCA/8221/2016 ORDER
3. The revisional proceedings arose from order dated 04.07.2006, passed by the Collector. The Collector had solicited the report in respect of Mutation Entry No.559 in respect of land bearing Survey No.415/1 situated at village Asamali, Taluka Matar, Kheda. The Collector directed forfeiture of the land to be vested in the name of the State Government on the ground of breach of Section 73AA. The Collector directed to dispose of the land in terms of Subsection (6) of Section 73AA and further directed to recover penalty for three times under subsection (7) of Section 73AA of the Code. 3.1 The sale transaction took place on 18.04.1989. Thereunder, the petitioners sold the land to the present private respondents. Entry No.559 was mutated. In relation to the entry mutated, appeal was preferred before the Deputy Collector, thereafter further appeal was filed before the Collector who solicited report from the subordinate authority and proceeded under Section 73AA of the Code. According to the Collector, there was a breach of the statutory provision of Section 73AA of the Land Revenue Code, Page 2 of 7 C/SCA/8221/2016 ORDER as prior permission was required to be taken for purchasing the land of the tribal, which was not taken.
4. It is the contention of the petitioners that the Collector did not give any notice under Section 73AA(5) of the Land Revenue Code. The petitioners were put to notice about taking back the land but Collector did not record the statement of any of the petitioners. On 04.05.2006, the Collector forfeited the land in exercise of powers under Section 73AA(4) and further ordered to dispose of the land under sub section (6) of Section 73AA of the Land Revenue Code and also directed to recover the penalty of Rs.1,35,000/ as arrears of land revenue from respondent Nos.3 to 5.
4.1 This led the petitioners to file Revision Application No.9 of 2006, whereas the private respondent Nos.3 to 5 filed Revision Application No.8 of 2006 which both came to be dismissed by way of the impugned order.
5. Section 73AA of the Gujarat Land Revenue Code, 1879, deals with the restriction on transfer of Page 3 of 7 C/SCA/8221/2016 ORDER occupancies from tribal to tribal or nontribal. Sub section (1) provides that notwithstanding anything contained in Section 73, an occupancy of a person belonging to Schedule Tribe shall not be transferred to any person without previous sanction of the Collector.
5.1 In the scheme of Section 73AA, subsections (4), (5) and (6) read as under :
"(4) Where a tribal
(a) in contravention of subsection (1) of this section, or of subsection (1) of section 73A or of any other law for the time being in force, transfers his occupancy to any person other than a tribal (hereafter 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 (Guj.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 time being in force has transferred his occupancy to 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 suo motu at any time, or on an application made by the tribal transferor or his successorininterest 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 successorin interest as the case may be, to show cause why the transfer should not be declared void and Page 4 of 7 C/SCA/8221/2016 ORDER 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 may be, 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 transferor or his successor ininterest agrees to purchase the occupancy and undertakes to cultivate it personally, it may be 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."
5.2 Subsection (5) of Section 73AA above thus provides that where an occupancy is vested in the Page 5 of 7 C/SCA/8221/2016 ORDER State Government under subsection (4) and such occupancy was subjected to assessment, the Collector shall give notice to the tribal transferor or his successor and require such tribal transferor to state in writing within the stipulated time as to whether he is willing to purchase the occupancy and cultivate personally. In the present case, the authorities have jumped the aforesaid stage of subsection (5) of Section 73AA. After the land was treated under sub section (4) and made to vest in the State Government, readily adverted to was the provisions of subsection (6). The Collector straightaway directed to dispose of the land in terms of subsection (6). The stage of subsection (5) of giving notice to the tribal transferor or his successor so as to know whether such tribal transferor is willing to purchase the land, has been skipped. This omission is an error of law amounting to noncompliance of the said provision.
6. As a result of above discussion, this petition is allowed as per the following order :
(i) The impugned order dated 21.12.2015, passed by the Secretary, Revenue Department (Appeals), Page 6 of 7 C/SCA/8221/2016 ORDER Ahmedabad, in Revision Application No.9 of 2006 is hereby set aside. Also set aside consequently is the order of Collector dated 04.07.2006.
(ii) The case is remitted back to the Collector for deciding afresh and to comply with the provisions of subsection (5) of Section 73AA of the Gujarat Land Revenue Code, 1879.
(iii) The Collector shall follow the requirements of of Section 73AA(5) of the Land Revenue Code of giving notice to the tribal transferor and ascertaining his willingness to purchase the occupancy and the procedure contemplated therein.
(iv) The Collector shall take a decision thereafter upon due compliance of Section 73AA(5) of the Land Revenue Code.
(v) The above exercise shall be completed within a period of four months.
7. The petition stands allowed to the aforesaid extent and in the aforesaid terms.
(N.V.ANJARIA, J) Gaurav+ Page 7 of 7