Gujarat High Court
Ishwarbhai Nagjibhai ... vs Sonkiben Mankabhai Vasava on 28 February, 2013
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
ISHWARBHAI NAGJIBHAI TALPADAKOLI(DECD) THR' HEIRS....Petitioner(s)V/SSONKIBEN MANKABHAI VASAVA C/SCA/12432/2003 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 12432 of 2003 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE J.B.PARDIWALA ================================================================ 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 ? ================================================================ ISHWARBHAI NAGJIBHAI TALPADAKOLI(DECD) THR' HEIRS....Petitioner(s) Versus SONKIBEN MANKABHAI VASAVA & 2....Respondent(s) ================================================================ Appearance: MR RE VARIAVA, ADVOCATE for the Petitioner(s) No. 1 - 1.4 MS VACHA M.DESAI, AGP for the Respondent(s) No. 2 - 3 MR SP MAJMUDAR, ADVOCATE for the Respondent(s) No. 1 ================================================================ CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 28/02/2013 ORAL JUDGMENT
By this petition under Articles 226 and 227 of the Constitution of India, the petitioner seeks to challenge an order dated 6th June 2003 passed by the Deputy Secretary (Appeals), Revenue Department, Government of Gujarat, and also an order dated 31st March 1997 passed by the Deputy Collector, Land Project No.8, Triable Sub-Plant, Rajpipla.
Facts shortly stated be summed up thus :
The petitioner bought the land in question from one Mankabhai Badharbhai Vasava, the husband of the respondent no.1, by a registered sale deed dated 28th March 1967. Entry was also mutated shortly thereafter in the Record of Rights.
The Deputy Collector, Rajpipla, took suo motu cognizance of the transaction of the year 1967 and registered a case being Case No.3/AA/30/1996 on the premise that the seller, deceased Mankabhai Badharbhai Vasava, was a member of a scheduled tribe and could not have transferred the land to a non-tribal, without obtaining any valid permission from the Collector. Thus, according to the Deputy Collector, the transaction was hit by the provisions of Section 73AA of the Bombay Land Revenue Code (for short, the Code ).
Notice was issued on the petitioner by the authorities, calling upon the petitioner to show-cause as to why the possession of the land be not taken over as there was violation of Section 73AA of the Code.
The petitioner appeared before the authority and contended that the notification issued by the State Government under Section 73AA of the Code prohibiting transfer of such land was issued in the year 1980, whereas the transaction was of the year 1967.
The Deputy Collector, however, vide order dated 31st March 1997, declared the transfer to be invalid.
The petitioner, being dissatisfied with the order passed by the Deputy Collector, preferred revision before the Deputy Secretary (Appeals), Revenue Department, Government of Gujarat. The Deputy Secretary (Appeals) also confirmed the order passed by the Deputy Collector and rejected the application accordingly.
Being dissatisfied, the petitioner has come up with this petition.
It is not in dispute that the husband of the respondent no.1 had transferred the land in question by way of a registered sale deed dated 28th March 1967 and the possession was also handed over to the petitioner.
Indisputably, the entry with regard to the transaction of 1967 was taken in suo motu review for the first time in the year 1996 i.e. almost after a period of 30 years.
Mr.Variava, the learned advocate appearing for the petitioner, submitted that it is by now well-settled that the suo motu power must be exercised within a reasonable period. Mr.Variava further submitted that Section 73AA of the Code prescribes procedure for initiating action. Sub-clause (4) of Section 73AA refers to limitation within which action could be taken. Relevant portion of which reads as under
:
Section 73AA(4):
(a) ... ...
(b) ... ...
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 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.
Mr.Variava has placed reliance on a decision of this High Court in the case of Vasanjibhai Gokalbhai Patel v/s. Dy.Collector, Songadh and another, reported in 1998(3) GLR 2139. Mr.Variava submits that in such circumstances, the orders passed by the authorities below deserve to be set aside and the petition be allowed.
Ms.Vacha Desai, the learned AGP, vehemently submitted that there are concurrent findings of the two authorities holding that the transaction was in breach of the provisions of Section 73AA of the Code and, therefore, this Court may not interfere with the concurrent findings. Ms.Desai, therefore, submits that there being no merit in this petition, the same be rejected.
Mr.S.P.Majmudar, the learned advocate appearing for the respondent no.1, adopted the submissions canvassed by the learned AGP.
Having heard the learned counsel for the parties and having gone through the materials on record, the only question that falls for my consideration is, whether the Deputy Secretary (Appeals), Revenue Department, Government of Gujarat, committed any error in passing the order impugned.
In my opinion, this petition could be allowed on two grounds. First, the transaction for which the proceedings were initiated is of the year 1967 i.e. at a point of time when Section 73AA of the Code was not in force and the notification issued by the State Government restraining transfers in violation of Section 73AA of the Code is of the year 1980. Apart from the above, there has been a gross delay on the part of the authorities in exercising suo motu powers i.e. almost after a period of 30 years, which has not been explained in any manner.
At this stage, I may state that the respondent no.1 is the wife of the deceased Mankabhai Badharbhai Vasava, the transferor. However, the respondent no.1 has no role to play, as it appears that even during the life time of her husband Mankabhai Badharbhai Vasava, the transaction was not called in question and it would now not be open for the respondent no.1 as the widow of the deceased Mankabhai Badharbhai Vasava to question the sale deed of 1967. Thus, in my opinion, the petition deserves to be allowed on the ground of inordinate and unexplained delay of 30 years as well as inapplicability of Section 73AA of the Code.
In the result, the petition succeeds. The order passed by the Deputy Secretary (Appeals), Revenue Department, Government of Gujarat, dated 6th June 2003 as well as the order passed by the Deputy Collector dated 31st March 1997 are hereby set-aside.
In the facts and circumstances of the case, there shall be no order as to costs. Rule is made absolute.
(J.B.PARDIWALA, J.) MOIN Page 7 of 7