Gujarat High Court
Pushpaben vs State on 13 October, 2010
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
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SCA/7875/1998 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7875 of 1998
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
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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 ?
=========================================================
PUSHPABEN
VALCHANDBHAI BISOHDAR - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================================
Appearance :
MR
SHRUSTI THULA YN OZA for Petitioner(s) : 1,
MR RASHESH RINDANI AGP
for Respondent(s) : 1 - 2.
MR YATIN SONI for Respondent(s) :
3,
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CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date : 13/10/2010
ORAL
JUDGMENT
1. By way of this petition, the petitioner has prayed for the following reliefs :-
"[a] Be pleased to admit this petition;
[b] Be pleased to issue a writ of mandamus or any other appropriate writ, order or directions, quashing and setting aside the orders passed by the authorities below at Annexures A and B to this petition, with all consequential and incidental benefits.
[c] Pending admission, hearing and final disposal of this petition, be pleased to stay the operation, implementation and execution of the impugned orders passed by both the authorities below at Annexures A and B to this petition and be pleased to restrain the respondents, their officers, servants, agents and subordinates from taking possession of the property and recovering the amount of penalty from the petitioner with all consequential and incidental orders;
[d], [e] & [f] ....."
2. The short facts of the case are that the petitioner is the resident of Village Garbada, District Dahod. The respondent no. 3 herein had sold the property being House No. 625/1 admeasuring 254.183 sq.mtrs by registered sale deed dated 08.06.1992 to the petitioner. Pursuant to the said transaction, the Deputy Collector-respondent no. 2 herein initiated suo motu proceedings being Case No. 61/96. The Deputy Collector, after hearing the parties vide order dated 30.09.1996 held that as the permission of the competent authority for selling the said property from tribal to non tribal was not obtained by the petitioner as provided u/s. 73AA of the Bombay Land Revenue Code, declared the said sale as unauthorized and illegal and also imposed penalty of three times the sale price.
2.1. Being aggrieved by the said order, the petitioner preferred Revision Application No. 9/97 before the learned Additional Chief Secretary [Appeals]. The learned Additional Chief Secretary [Appeals] vide order dated 10.08.1998 rejected the said revision application. Hence, this petition.
3. Ms. Shrusti Thula, learned counsel for the petitioner has contended that the initiation of suo motu inquiry for declaration of the sale deed to be invalid after three years is illegal and arbitrary. In support of her say, she has placed reliance on the decision of this Court in the case of Pratimaben Gopaldas Desai v. State of Gujarat & Ors. reported in 2003(3) GLH 430, wherein the Court has observed that suo motu powers exercised beyond a reasonable period vitiates the action of the revisional authority.
3.1. She has further contended that in view of the decision rendered by this Court in the case of Patel Maganbhai Kesurbhai v. Bhogilal Punjabhai Vasava, reported in 1998 (2) GLR 961, the orders passed by both the authorities may be quashed and the matter may be remanded to the Collector for grant of post facto sanction of the sale deed of the land in question executed by the respondent and the petitioner may be directed to deposit the charges payable to the Government for the grant of sanction to the sale deed. The learned counsel for the petitioner has contended that the petitioner is not claiming any right over the land in question.
4. Heard learned counsel for the respective parties and perused the documents on record. The main grievance of the petitioner is that the sale deed transaction was registered on 08.06.1992 and the Deputy Collector has initiated the suo motu proceedings after a period of three years. From the record it transpires that the petitioner has without previous sanction from the Collector has transferred the occupancy to a non-tribal. In other words, the petitioner has violated the provisions of Section 73AA of the Bombay Land Revenue Code. Further, in view of the provisions of Section 73AA(4)(b) of the Bombay Land Revenue Code, if a tribal transfers his occupancy to a non-tribal at any time before the said date, the Collector shall either initiate suo motu proceedings or if any application is preferred by the tribal within a period of three years from the date of such transfer, the Collector shall issue notice and after making such inquiry, shall declare the transfer of such occupancy to be void and vest the land to the State Government free from all encumbrances. In view of the aforesaid factual scenario, the decisions relied upon by the learned counsel for the petitioner will not be applicable to the present case.
4.1. Admittedly, the land in dispute was belonging to and in possession of an Adivasi and as such the transfer of the land to a non-Adivasi is only permissible with prior permission of the Government. In the present, the petitioner has not taken prior permission of the Government before transferring the occupancy to the non-Adivasi. Thus, the respondent-authorities have not committed any illegality in declaring the sale deed to be invalid and ordering to forfeit the land to the Government. Further if the proceedings initiated against the petitioner are declared to be illegal on the ground of delay, the very purpose and object for which Section 73AA has been enacted in the code will be frustrated. The underlying object of the provisions of Section 73AA of the Code is that the lands of the Adivasis are not taken away by the non-Adivasis. The Adivasis are the poor persons and as they are facing difficulties and in order to protect them from any exploitation, the benevolent provisions of Section 73AA has been enacted in the Code.
5. Looking to the facts of the case and in view of the concurrent findings recorded by the authorities below, I am not inclined to interfere in this petition. The petition is, therefore, dismissed. Rule is discharged. Interim relief if any, stands vacated.
[K.S. JHAVERI, J.] /phalguni/ Top