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Showing contexts for: 73aa in Patel Maganbhai Kesurbhai Since Decd. ... vs Bhogilal Punjabhai Vasava And Ors. on 24 October, 1997Matching Fragments
(i) the initiation of suo motu inquiry for declaration of the sale deed to be invalid after three years is illegal and arbitrary,
(ii) the land in dispute is not an agricultural land but it is only a village site land meant for the construction of house and as such it does not fall within the meaning of Section 73AA of the Code, and
(iii) Section 73AA of the Code was enacted mainly with a purpose to prevent exploitation of the Adivasi people who were selling their agricultural lands which were their main source of income and livelihood. This land is merely a piece of land and the petitioner has purchased the same by paying the market value of the same to the respondent Nos. 1 to 4.
8. The Counsel for the respondent No. 5 contended that admittedly the land in dispute was belonging to and in possession of an Adivasi and as such the transfer of the said land to a non-Adivasi is only permissible with prior permission of the Government and admittedly as the prior permission was not taken, the respondent has not committed any error whatsoever in declaring the sale deed to be invalid and further ordering for forfeiture of the land to the Government. It has next been contended that in case only on the ground of delay such proceedings are declared to be illegal and quashed by This Court then 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 the difficulties and anybody can exploit them and to protect them from any exploitation the benevolent provision of Section 73AA has been enacted in the Code.
9. I have given my thoughful consideration to the submissions made by the learned Counsel for the respondent No. 5.
10. It is true that Section 73AA of the Code has been enacted with a purpose and object to see that the Adivasis are not being exploited by the non-Adivasis or even by the Adivasis. To enact a provision for the protection, welfare and well-being of the Adivasis is one thing and to see that this provision is strictly enforced is an another thing. The important is the implementation of the provisions made for the benefit, welfare and well-being of the Adivasis in the Code. Undisputedly, the land has been transferred by the respondent Nos. 1 to 4 to the petitioner by registered sale deed and as this transfer was being effected without any permission from the competent authority it is invalid. To initiate the suo motu proceedings for examining the legality, correctness and propriety of such sale transaction, in the Code the period of limitation has not been prescribed but law is well-settled that where the period of limitation is not prescribed for exercising suo motu powers by the authority still it has to be exercised within reasonable time. I find sufficient merits in the contention of the Counsel for the respondent No. 5 that merely on the ground of delay in initiation of the proceedings for declaration of the sale transaction in the present case to be invalid the orders passed by the authorities may not be quashed and set aside but in case the party had changed the position during the interregnum and it has spent huge amount in the construction of house etc., then this question of delay in initiation of the proceedings has to be looked into differently. In the premises aforesaid, now I may proceed to examine this matter on merits.
12.1. From the facts stated above, it is clearly borne out that the petitioner has changed its position or to be more precisely, the respondent No. 5 has permitted the petitioner to change its position after purchase of the land in dispute. The delay in such matters in initiation of the proceedings for declaration of the sale deed to be invalid under the provisions of Section 73AA of the Code is to be taken seriously and is fatal. The respondents by their inaction or omission may be deliberate or bona fide have permitted the petitioner to settle on the land and in fact he has settled on the land. Silence of the concerned authorities in such matters for three years is a serious matter in a case where the party, the transferee has changed its position. It is also not on the record of this Special Civil Application that the petitioner was not a bona fide purchaser. The doctrine of bona fide purchaser may not be strictly complied to the sale transactions of the nature as prohibited under Section 73AA of the Code but still while examining the question of delay in initiation of the proceedings for cancellation of the sale in the matter this fact may be a relevant fact. What Section 73AA of the Code says that the occupancy of a person belonging to any of the Scheduled Tribe shall not be transferred to any person without previous sanction of the Collector. So the transfer is not totally prohibited but it is permissible with the previous sanction of the Collector. That sanction has not been taken in the present case but in the facts of the present case and particularly the fact that the petitioner has raised the construction on the land and the proceedings have been initiated after three years of the sale deed, I consider it to be appropriate to send the matter to the Collector to consider the question of grant of post-facto sanction to the sale transaction of the land. The respondent Nos. 1 to 4 to whom this land was belonging have not objected to the sale nor they have come up with a case that they have been exploited and that they now want the land for them. This course I am adopting for the reason that the State Government, its officers and functionaries are in fact responsible for all these transactions as they have not any check or vigilance in these matters as well as for the reason that there is a delay of three years in initiation of the proceedings under Section 73AA of the Code. The respondent-State, its officers and functionaries have permitted the petitioner by necessary implication to raise the construction and now if at this stage he is ordered to be ousted from the land and the house standing thereon then it will not be reasonable. The sale transaction is of the year 1981, now we are in the year 1997. This Court has protected the petitioner by grant of interim relief also.