Gujarat High Court
Bediben D/O Budhiyabhai ... vs District Collector on 1 December, 2021
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/LPA/960/2017 JUDGMENT DATED: 01/12/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 960 of 2017
In R/SPECIAL CIVIL APPLICATION NO. 2645 of 2012
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2017
In R/LETTERS PATENT APPEAL NO. 960 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA Sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
BEDIBEN D/O BUDHIYABHAI RATHODW/OAJESHBHAI KALPESHWAR
JHA
Versus
DISTRICT COLLECTOR & 1 other(s)
==========================================================
Appearance:
MR YM THAKKAR(902) for the Appellant(s) No. 1
MR. ISHAN JOSHI, LD. ASST. GOVERNMENT PLEADER(1) for the
Respondent(s) No. 1,2
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 01/12/2021
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C/LPA/960/2017 JUDGMENT DATED: 01/12/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. The appeal is ordered to be admitted and the same is taken up for final hearing forthwith. Mr. Joshi, the learned AGP, waives service of notice of rule for and on behalf of the respondents.
2. This appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful writ applicant of a writ application and is directed against the judgment and order passed by a learned Single Judge of this Court dated 22 nd March, 2017 in the Special Civil Application No.2645 of 2012, by which, the learned Single Judge declined to grant any relief to the appellant herein and thought fit to dispose of the writ application with few observations.
3. We need not delve much into the facts giving rise to this appeal as the facts have been elaborately stated in the impugned order passed by the learned Single Judge. We quote the entire order.
"Heard Mr. Thakkar, learned advocate for the petitioner, and Mr. Patel, learned AGP for the respondent - State.
2. In present petition, the petitioner has prayed, inter alia, that:-
"10A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus / certiorari or any other appropriate writ, order or direction to quashed and set aside non-action of the Res.No.1 District Page 2 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022 C/LPA/960/2017 JUDGMENT DATED: 01/12/2021 Collector, Surat by directing him to take appropriate steps envisaged under Section 73AA, 79A and 202 of the code for the land bearing survey number 173/3 and 175/1 of village Katargam, Taluka: City District Surat, in the interest of justice.
B) YOUR LORDSHIPS may be pleased to call for the explanation from the District Collector, Surat for the non compliance of mandatory statutory duty cast under provisions of the Gujarat Land Revenue Code despite reminded time and again and further be pleased to direct the State Government to take appropriate disciplinary steps against the defaulting authority in the interest of justice.
C) YOUR LORDSHIPS may be pleased to call for the explanation from the District Collector, Surat for the non compliance of mandatory provisions of the Gujarat Land Revenue Code despite reminded time and again and further be pleased to direct the State Government to take appropriate disciplinary steps against the defaulting authority, pending admission, hearing and final disposal of the present petition."
3. Actually, a petition under Article 226 of the Constitution of India for "setting aside nonaction of the authority", does not deserve to be entertained, more particularly when the authority, in response to any request for particular action, has not refused to take the action.
4. Further, in present petition, any order of the nature which the petitioner has requested for is, if granted at this stage, likely to affect the provision related to time limit prescribed for taking action in accordance with applicable provisions. Therefore also, the request in the petition does not deserve to be accepted, otherwise, it would negate the provision prescribing time limit.
5. So as to appreciate the position that the relief prayed for in the petition cannot be entertained and Page 3 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022 C/LPA/960/2017 JUDGMENT DATED: 01/12/2021 granted, it is appropriate to take into account factual background. The petitioner has averred and stated that:-
"(3.1) The petitioner approached to the office of the District Collector u/s.73AA for the possession of such occupancy of the land bearing survey number 173/3 and 175 of Village: Katargam, District: Surat. The Office of the Collector, pursuant to the aforesaid application, directed the office of the Dy. Collector to instate proceedings u/s. 73AA and hence notice dated 03-05-07 u/s. 73AA of the code by the Dy. Collector.
(3.2) The proceedings initiated by the Dy. Collector u/ s.73AA of the code vide notice dated 03-05-07 was registered as Case No.JAMAN/73AA(4)/2/07. The Dy. Collector, after affording appropriate opportunity of being heard all the affected parties, was pleased to pass order dated 29-12-08 by holding the transfer of land against the provision of Se.73AA(1) and set it aside by exercising the powers u/s 73AA(4) of the code and land was ordered to be resumed with the state Government.
(3.3) The transferees of the aforesaid land in question, being aggrieved by the order passed by the Dy. Collector dated 29-12-08, approached the office of District Collector, Surat u/r 108(5) of the Gujarat Land Revenue Rules, 1972 by way of appeal bearing no.JMAN/73AA/Case No.3/09.
(3.5) It is pertinent to note that the aforesaid appeal was preferred by only 4 transfees out of total 66 transferees of the land against the order passed by the Dy. Collector dated 29-12-08. Therefore, the order passed by the Dy. Collector has attained finality for the 62 transferees since they have not preferred any appeal challenging the order passed u/ s 73AA(4) of the Code.
(3.6) It is submitted that the District Collector, vide Page 4 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022 C/LPA/960/2017 JUDGMENT DATED: 01/12/2021 order dated 28-06-10, was pleased to confirm the order passed by the Dy. Collector dated 29-12-08 in Case No.JMAN/73AA(4)/2/07. The District Collector was pleased to hold that the land in question was transferred to non-tribal persons and as the same is prohibited u/s.73AA of the Code, the Dy. Collector has rightly exercised powers u/s.73AA(4) by forfeiting the land with the state government.
(3.7) It is submitted that the District Collector after holding transfer illegal u/s 73AA(4) of the Code ought to have offered petitioner occupancy of the land in question. It is submitted that the sec.73AA(5) makes it obligatory for the District Collector to initiate action u/s 79A and 202 of the Code for the purpose of evicting transferees who are occupying on the strength of document that is set aside by the Dy. Collector vide order dated 29-12-08 and as confirmed by the Collector vide order dated 28-06-10. Once the eviction process gets over, the District Collector is required to issue notice to the tribal transferor to inquire whether he is willing to purchase the occupancy and cultivate the land personally. If the tribal transferor agrees to purchase the occupancy and undertakes to cultivate it personally the land in question be granted to him upon payment of the prescribed occupancy price. It is submitted that despite the District Collector passed order on 28-06- 10 confirming the order of Dy. Collector dated 29-12- 08, no steps have been initiated by the District Collector as envisaged u/s. 73AA of the code and therefore the petitioner alongwith other family members preferred representation dated 25/10/2010 requesting the District Collector to initiate appropriate proceedings to hand over possession of the land in question.
(3.7) It is submitted that, the petitioner constrained to prefer the present petition as the District Collector has not passed any order on the representation preferred by the petitioner. In view of these facts, the petitioner has approach this Hon'ble Court with Page 5 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022 C/LPA/960/2017 JUDGMENT DATED: 01/12/2021 folded hands for redressal of her grievances."
(5.1) The petitioner respectfully submits that the father of the petitioner was tenant of land bearing survey number 173/3 and 175/1 of village Katargam, District: Surat.
(5.2) The name of the Father of the petitioner was mutated in the revenue record vide Entry No.1622 dated 11-01-55 showing him as a tenant of the said land.
(5.3) On 27-06-61 the Mamlatdar and ALT was pleased to pass order declaring father of the petitioner Budhaibhai Nathubhai tenant of the said land.
(5.4) On 01-04-75 vide entry number 4501, the competent authority issued certificate of purchase under section 32(M) in the name of Father of the petitioner.
(5.5) Since the father of the petitioner passed away in the year 1971, the name of the Father of the petitioner was deleted vide entry number 4502 and name of other legal heirs were mutated in the revenue record including name of the petitioner.
(5.6) It is submitted that since the land in question, bearing survey number 173/3 and 175/1 of village Katargam, was new tenure land having restrictions of the nature of section 43(G), the petitioner and other legal heirs executed power of attorney in favor of one Laljibhai Madhabhai in the year 1989 for the purpose of getting land in question converted into old tenure land and also for the purpose of getting non- agricultural permission from the competent authority.
(5.7) It appears, the aforesaid Laljibhai Madhabhai, power of attorney holder misused said power and executed documents in favour of various persons behind the back of petitioner and other family Page 6 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022 C/LPA/960/2017 JUDGMENT DATED: 01/12/2021 members. The said facts came to the knowledge of petitioner and others and therefore immediately the same was brought to the notice of to the concerned District Collector in the year 2004. It is submitted that petitioner and other family members immediately issued public notice in the local newspaper to that effect in the February 2004. It is pertinent to note that the land in question where new tenure land having restrictions of the section 43(G) of Bombay tenancy act and also as the petitioner belongs to schedule tribal, the land in question was prohibited to be transferred to non tribal u/s.73AA of the code. Therefore the land in question could not have been sold without obtaining prior permission of the District Collector and that too, to the persons belonging to non tribal community. It is submitted that not only that the land in question could not have been sold without obtaining NA permission from the competent authority as the same was transferred to the non-agriculturists for the purpose of residence.
(5.8) It is submitted that the petitioner and other family members persistently complained about the fraud committed by the aforesaid power of attorney holder who took undue advantage of a illiteracy of the petitioner and other family members. The Mamatldar and ALT was pleased to issue notice dated 11-04-07 to take appropriate steps against the persons who occupied the land and constructed on it illegally. The said notice was issued after they mother of the petitioner was examined by the Mamlatdar. It appears that thereafter petitioner had approach this Hon'ble High Court by way of Special Civil Application No.30895 of 2007 and the said petition came to be withdrawn vide order dated 16- 07-08 with a view to raise contentions before the Mamlatdar that were raised in the petition."
6. With reference to the said facts of the case, the respondent Dy. Collector has filed affidavit dated 4.8.2012 stating, inter alia, that:-
"4. ...I say and submit that in view of aforesaid Page 7 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022 C/LPA/960/2017 JUDGMENT DATED: 01/12/2021 provision, it is crystal clear that it is obligatory on the part of the transferor i.e. petitioner herein, to apply to the Collector for restoring her possession within a period of TWO YEARS OF SUCH TRANSFER. I say and submit that in the present case, such transfer of the land in question was made in the year 1990, whereby registered sale deeds were produced before the competent authority and the petitioner has for the very first time made an application for restoring her possession only in the year 2006 i.e. after a period of MORE THAN 15 YEARS from the date of such transfer. Therefore also, the petitioner is not entitle to get her possession restored, which has already been transferred way back in the year 1990. I further say and submit that the petition is also required to be rejected on the ground that the petitioner has in the present petition inter alia prayed for specific direction to the Collector, the respondent No.1 herein to initiate proceedings qua restoring possession of the petitioner which was taken over way back in the year 1990 and the petitioner approached the respondent - authority only in the year 2006, which is even as per the aforesaid provision of the Code a time barred application. Thus, the petitioner has approached the authority after in the year 2006 i.e. after a period of more than 15 years suddenly after waking up from slumber. Thus, present petition is required to be rejected only on the ground of a huge delay, laches and acquiescence. I say and submit that the petitioner after the transfer of the land was made in the year 1990, the petitioner acquiesced with the fact. It is pertinent to note that in one of the decisions of the Hon'ble Supreme Court in the case of Shivdas v. Union of India, reported in AIR 2007 SC 1330, the Hon'ble Supreme Court has categorically observed that the petition challenging the order/action of the authority after a reasonable period i.e. after a period of more than 3 years, shall not be entertained. Thus, the Apex Court has deprecated such practice of such negligent litigants filing petition after a period of more than three years from the date of such order/inaction. It is required to Page 8 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022 C/LPA/960/2017 JUDGMENT DATED: 01/12/2021 be noted that even this Hon'ble Court in certain petitions adopting the view taken by the Hon'ble Supreme Court in the above cited decision has rejected the petitions challenging the order passed prior to three years. Therefore also, this Hon'ble Court may be pleased to reject present petition taking into consideration the settled legal position. Hence, only on the ground of delay, laches and acquiescence, the present petition is required to be rejected on the threshold. I say and submit that the petitioner is also estopped from making any such grievance after a period of more than 15 years i.e. when the petitioner made an application to the respondent - authority for the first time in the year 2006. Thus, the present petition also suffe3rs from the bar of principle of estaoppel since after having acquiesced the fact of transfer of land for a period of more than 15 years, the petitioner is estopped from filing present petition. Therefore also, the same is required to be dismissed in the interest of justice. ...I say and submit that insofar as initiation of proceedings under Section 202 of the Code is concerned, it is pertinent to note that the respondent
- authority has already exercised its powers under Section 73AA(4) of the Code and vested the land in the Government. Therefore, the petitioner has no locus to make any prayer for removal of encroachment qua the land which is not being either possessed or owned by the petitioner. Therefore, only on the ground of locus standi the prayer of the petitioner qua initiation of proceedings under Section 202 of the Code is not required to be granted. I say and submit that insofar as the contention of the petitioner qua initiation of proceedings under Section 73AA(5) of the Code is concerned, it would be beneficial to reproduce the relevant extract of the said provision for the sake of brevity and convenience: "73AA(5) : Where an occupancy if vested in the State Government under sub-section (4) and such occupancy was assessed or held for the purpose of agriculture immediately before its transfer by the tribal transferor, the Collector shall, after Page 9 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022 C/LPA/960/2017 JUDGMENT DATED: 01/12/2021 taking necessary action under sections 79-A and 202, give notice to the tribal transferor or his successor in interest, as the case may be , ...."
I say and submit that here in the present case, in view of the provisions of Section 79-A of the Code, especially proviso to Section 79-A of the Code, since the petitioner has not approached the respondent - authority within the prescribed time limit of two years, there is no question of initiation of proceedings under Section 79-A and, therefore, there is no question initiation of proceedings under Section 73AA(5) of the Code, since this proceeding can be initiated only after the proceedings are initiated under Section 79-A as provided in the above quoted provision. Therefore also, the present petition, which is devoid of any substance and merit is required to be dismissed.
I say and submit that looking to the facts and circumstances of the case, it transpires that for the sale of lands which was done in the year 1990, since the transferees have not obtained their registered sale deed from the office of the sub-registrar till date and the case is pending even today, to the best of the knowledge of the deponent herein, the petitioner has filed present petition at their instance since the land purchased by them has been vested in the Government. Thus, the present petition is nothing but a sponsored petition at the instance of the transferees."
7. Besides the said affidavit, another affidavit dated 10.12.2013 is also filed by the Dy. Collector wherein it is averred and stated that:-
"2. I respectfully say and submit that this Hon'ble Court has passed an order dated 15.10.2013 directing the Collector, Surat to take appropriate steps in accordance with law under the provisions of Section 73AA of the Bombay Land Revenue Code, 1879. I further say and submit that pursuant to the Page 10 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022 C/LPA/960/2017 JUDGMENT DATED: 01/12/2021 aforesaid order the Deputy Collector, Surat, City:
Prant has issued notice dated 03.12.2013 to the concerned parties under Section 73AA of the Bombay Land Revenue Code, 1879. The date of hearing is fixed by the authority on 23.12.2013 at 11.30 am. Copy of the notice dated 03.12.2013 has already been dispatched to the concerned parties. ...
3. I respectfully say and submit that the notice issued by the Deputy Collector, Surat, City: Prant since the power to issue notice under Section 73AA of the Bombay Land Revenue Code, 1879 are with the Deputy Collector, Surat. Therefore, it is requested to this Hon'ble Court to kindly take on record the present additional affidavit alongwith the notice dated 03.12.2013 and passed order of compliance in light of the directions given by this Hon'ble Court vide order dated 15.10.2013."
8. The above mentioned details have brought out the fact that after the order dated 29.12.2008 came to be passed, the petitioner filed present petition in 2012 and by now, almost 8 years have passed. The said averments, particularly by the petitioner, have also brought out that, the petitioner has, to justify his allegations and request, invoked Section 73(AA), Section 79(A) and Section 43(G). It is held that any action for said provision should be taken within prescribed time limit and where time limit is not prescribed then the action should be taken within reasonable time.
8.1 Under the circumstances, if any direction to initiate actions in pursuance of the said order is passed by this Court, then, it is likely to amount to direction to the authority to disregard provisions related to time limit and/or the decision by Hon'ble Apex Court (that action under the Code where time limit is not prescribed, should be taken within reasonable time).
Page 11 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022C/LPA/960/2017 JUDGMENT DATED: 01/12/2021 8.2 Therefore, in the facts and circumstances of this case, this Court considers to issue any direction as prayed for. However, it is clarified that if any cause of action survives in favour of the petitioner and if they have any right, claim or title to seek any action/direction under the provisions of the Code or any other law and if the applicant has filed any application (which is yet not decided) or if the applicant files any application before the competent authority then such authority shall consider such application and pass appropriate order in accordance with law and after having regard to judicial pronouncements or will take appropriate action in accordance with law and in light of decided cases and after hearing all concerned and interested parties. With aforesaid observations and directions, present petition stands disposed of. Rule is discharged."
4. The controversy in the present litigation revolving around in a narrow compass. The appellant herein- original applicant is a rustic tribal lady. She owned a parcel of land. It is her case that at the relevant point of time, she was induced upon a misrepresentation made by one individual to execute a power of attorney with respect to the land in question. It is her case that the power of attorney misused the power and disposed of the land to different individuals almost 66 in numbers. Since it could be said to be a transfer of land by a tribal to non-tribal, such transfer would be hit by Section 73AA of the Gujarat Land Revenue Code. The appellant herein brought to the notice of the Collector the transaction that took place on the strength of the misused power of attorney. The Collector took cognizance of the same and initiated appropriate proceedings in accordance with the provisions Page 12 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022 C/LPA/960/2017 JUDGMENT DATED: 01/12/2021 of Section 73AA. At this stage, it is relevant to note that notices were issued to all the transferees and they all lost before the appropriate authority till the last. It is not in dispute that at the end of an appropriate inquiry, the land in question stood vested with the State Government free of all encumbrances.
5. The case put up by the appellant is that the land should have come back to her. In such circumstances, she came to the High Court by filing the Special Civil Application No.2645 of 2012. It appears from the line of reasoning adopted by the learned Single Judge that relief came to be declined on the ground of delay.
6. We have heard Mr. Y.M. Thakkar, the learned counsel appearing for the appellant (original writ applicant) and Mr. Ishan Joshi, the learned AGP appearing for the State.
7. The short point that falls for our consideration is whether the Collector could be said to have proceeded in accordance with the statutory obligation cast upon him under the provisions of Section 73AA, more particularly, sub-clause (5). We quote Section 73AA;
"73AA. Restriction on transfer of occupancies of tribals to tribals or non-tribals:- (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 Page 13 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022 C/LPA/960/2017 JUDGMENT DATED: 01/12/2021 any person without the previous sanction of the Collector.
(2) The previous sanction of the Collector under sub-
section (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 sub- section (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 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 unauthoriselly 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 sub-section (1) of section 73A or of any other law for the time being in Page 14 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022 C/LPA/960/2017 JUDGMENT DATED: 01/12/2021 force has transferred his occupancy to another tribal at any time during the period commencing on the 4th 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 Collector under section 73A.
(4) Where a tribal--
(a) in contravention of sub-section (1) of this section, or of sub-section (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 non-tribal") at any time on or after the date of commencement of the Bombay Land Revenue (Gujarat Second Amendment) Act, 1980 (hereinafter in this section referred to as "the said date"); or
(b) in contravention of sub-section (1) of section 73A or of any other law for the time being in force has transferred his occupancy to a non-tribal at any time before the said date, the Collector shall, nothwithstanding anything contained in any law for the time being in force, either suo motu at any time, or on a 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 Page 15 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022 C/LPA/960/2017 JUDGMENT DATED: 01/12/2021 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 sub-section (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 in-
interest agreees 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 sub-section (5), and if he is not so willing, it shall be granted to other classes of personsin such order or priority atsuch occupancy price and subject to such conditions as may be prescribed.
(7) Where any occupancy is transferred to a non- tribal in contravention of sub-section (1) such non- tribal shall, without prejudice to any other liability to which he may be subject, be liable to pay to the Page 16 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022 C/LPA/960/2017 JUDGMENT DATED: 01/12/2021 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 non-tribal shall be given a reasonable opportunity of being heard.
(8) The penalty payable under sub-section (7) shall, if it is not paid within the time specified by the Collector, be recoverable as an arrear of land revenue.
Explanation -- For the purposes of this section,--
(i) "prescribed" means prescribed by rules under section 214;
(ii) "Scheduled Tribes" means such tribes or tribal communities or parts of or groups within such tribes or tribal communities as are deemed to be Scheduled Tribes in relation to the State of Gujarat under atricle 342 of the Constitution.
(iii) "to cultivate personally" shall have the meaning assigned to it in clause (6) of section 2 of the Bombay Tenancy and Agricultual Lands Act, 1948 (LXVI of 1948)"
8. We are of the view that with the vesting of the land in question with the State Government free of all encumbrances, the matter did not come to an end. There is a further statutory obligation cast upon the Collector to act in accordance with the sub-clause (5) . Sub-clause (5), referred to above, makes the position abundantly clear.
9. It is not in dispute that after the land stood vested, the Collector did not do anything further in accordance with sub-clause (5).Page 17 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022
C/LPA/960/2017 JUDGMENT DATED: 01/12/2021
10. Mr. Joshi, the learned AGP, vehemently submitted that the learned Single Judge, having declined to grant any equitable relief to the appellant herein on the ground of delay and laches, this Court, in an intra-court appeal under Clause 15 of the Letters Patent, may not take a different view of the matter.
11. We are not impressed with the submission of the learned AGP noted above. In the first place, it must be remembered that the rule which says that the Court may not inquire into belated and stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, the Court must necessarily refuse to entertain the writ application. Each case must depend on its own facts. Whether to grant any relief is one of discretion for this Court to follow from case to case. There is no lower limit and there is no upper limit. It will all depend on what the breach of the Fundamental Right and the remedy claimed are and how the delay arose. (See R.S. Deodhar & Ors.vs. The State of Maharashtra & Ors., AIR 1974 SC 259)
12. We are dealing with a litigation, in which, the appellant who is seeking equitable relief from this Court is a rustic tribal woman. This aspect also needs to be kept in mind while dealing with the issue of delay and laches.Page 18 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022
C/LPA/960/2017 JUDGMENT DATED: 01/12/2021
13. In view of the aforesaid, we set aside the judgment and order passed by the learned Single Judge. The Special Civil Application No.2645 of 2012 is allowed to the extent that the Collector, Surat shall now proceed further in accordance with sub-clause (5) and take an appropriate decision in accordance with law within a period of two months from the date of the receipt of the writ of this order. We clarify that whether the land should be ultimately granted to the appellant or not will be subject to the appellant fulfilling the conditions as laid in sub- clause (5) of Section 73AA of the Code.
Direct service is permitted.
(J. B. PARDIWALA, J) (NIRAL R. MEHTA,J) Vahid Page 19 of 19 Downloaded on : Wed Jan 12 06:16:52 IST 2022