NEUTRAL CITATION
C/SCA/14631/2016 ORDER DATED: 09/08/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 14631 of 2016
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ABDUL REHMAN HAJI IBRAHIM MADARI
Versus
STATE OF GUJARAT & 4 other(s)
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Appearance:
JENIL M SHAH(7840) for the Petitioner(s) No. 1
for the Respondent(s) No. 4.3
MR ROHAN N SHAH, AGP for the Respondent(s) No. 1
MR AFTABHUSEN ANSARI(5320) for the Respondent(s) No. 5
RULE SERVED for the Respondent(s) No. 2,3,4.5
RULE UNSERVED for the Respondent(s) No. 4.2,4.4
RUSHI B BHAVSAR(9342) for the Respondent(s) No. 4.1
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CORAM:HONOURABLE MR. JUSTICE NIRAL R. MEHTA
Date : 09/08/2023
ORAL ORDER
1. By way of present petition under Article 226 of the Constitution of India, the petitioner has called in question order dated 19th March, 2010 passed by Deputy Collector, Godhra, order dated 30th May, 2015 passed by Collector, Panchmahal as also order dated 03rd June, 2016 passed by Special Secretary, Revenue Department (Appeals) resuming the land of the petitioner in the State Government holding, inter alia, breach of Section 73AA of the Bombay Land Revenue Code.
2. The brief facts of the case can be stated as under. 2.1 Land bearing Survey No.60/52 admeasuring Page 1 of 11 Downloaded on : Sun Sep 17 00:48:23 IST 2023 NEUTRAL CITATION C/SCA/14631/2016 ORDER DATED: 09/08/2023 undefined admeasuring 08 Acre-3 Gunthas of Village Popatpura, Taluka Godhra, District Panchmahal was granted to the father of respondent Nos.4 and 5. Thereafter, upon death of the father, names of respondent Nos.4 and 5 came to be mutated in the revenue records in the year 1977.
2.2 On 24th February, 1978 land in question came to be converted into old tenure by respondent Nos.4 and 5 with permission to sell the same in favour of father of the petitioner and thereby, in the year 1978 itself, respondent Nos.4 and 5 executed an agreement to sell with possession of 05 Acres of land out of the total land as referred hereinabove. 2.3 On 01st February, 1981 by virtue of amendment, provisions of Section 73AA came to be inserted in the Gujarat Land Revenue Code and thereby, on 20 th April, 1982, Entry came to be recorded in the revenue records inserting restrictions of Section 73AA.
2.4 Pursuant to the agreement to sell, on 21 st June, 1982, a registered sale deed came to be executed between respondent Nos.4 and 5 and father of the petitioner and thereafter mutation of Entry made in the records of right on Page 2 of 11 Downloaded on : Sun Sep 17 00:48:23 IST 2023 NEUTRAL CITATION C/SCA/14631/2016 ORDER DATED: 09/08/2023 undefined 03rd January, 1983.
2.5 After almost a period of 26 years, in the year 2008, proceedings came to be initiated by the Deputy Collector, Godhra for breach of provisions of Section 73AA. In the said proceedings, petitioner submitted his reply and even the respondent No.4 supported the version of the petitioner. However, Deputy Collector, Godhra vide order dated 19 th March, 2010 passed an order holding breach of provisions of Section 73AA and further resuming the land in the government.
2.6 Being aggrieved and dissatisfied with the aforesaid, petitioner has approached respondent No.1. However, vide order dated 10th May, 2012, petitioner was relegated to respondent No.2 i.e. Collector, Panchmahal. 2.7 Thus, the petitioner has approached Collector, Panchmahal by way of appeal wherein respondent No.4 also supported the case of the petitioner, however Collector, vide order dated 30th May, 2015 rejected the appeal preferred by the petitioner holding, inter alia, breach of provisions of Section 73AA of the Bombay Land Revenue Code. Page 3 of 11 Downloaded on : Sun Sep 17 00:48:23 IST 2023
NEUTRAL CITATION C/SCA/14631/2016 ORDER DATED: 09/08/2023 undefined 2.8 Feeling aggrieved and dissatisfied with the aforesaid, petitioner has approached Special Secretary (Appeals), Revenue Department by way of Revision under Section 211 of the Land Revenue Code.
2.9 It appears that along with the Revision, petitioner had preferred an application for interim relief, however the said application was rejected vide order dated 30 th October, 2015 by respondent No.1.
2.10 Feeling aggrieved by the aforesaid, petitioner had approached this Court by way of Special Civil Application No.20140 of 2015 wherein this Court had granted the order of status quo.
2.11 As it further appears, during the pendency of the aforesaid petition, respondent No.1 has decided the Revision vide order dated 03rd June, 2016 wherein Revision preferred by the petitioner came to be rejected.
3. Thus, being aggrieved and dissatisfied with the aforesaid, the present petition has been preferred under Article 226 of the Constitution of India for the appropriate relief.
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4. I have heard learned advocate Mr.Jinil Shah for the petitioner, learned advocate Ms.Priya Meena for learned advocate Mr.Aftabhusen Ansari for respondent No.5 and learned Assistant Government Pleader Mr.Rohan Shah for the respondent - State. Learned advocate Mr.Rushi Bhavsar for respondent No.4.1 was not present when the matter was called out. However, since all throughout respondent No.4.1 has supported the version of the petitioner, his presence is not found relevant. Though served, respondent No.4.5 has chosen not to appear. Respondent Nos.4.2 and 4.4 are unserved and thereby, at the request made by the petitioner, they stands deleted.
4.1 Learned advocate Mr.Jenil Shah for the petitioner, while assailing the impugned order, has mainly made following submission.
(i) Learned advocate for the petitioner vehemently submitted that the impugned orders passed by the revenue authorities are after a gross delay of 26 years. According to learned advocate for the petitioner, suo motu powers exercised by the Deputy Collector is not tenable in eye of law being exercised beyond the period of limitation as envisaged Page 5 of 11 Downloaded on : Sun Sep 17 00:48:23 IST 2023 NEUTRAL CITATION C/SCA/14631/2016 ORDER DATED: 09/08/2023 undefined under the provisions of Section 73AA(4) which prescribes the limitation period of three years.
4.2 By making above submission, learned advocate for the petitioner has requested this Court to allow the present petition as prayed for.
4.3 Learned advocate Ms.Priya Meena for learned advocate Mr.Ansari for respondent No.5 submitted that she has no objection if the petition is allowed as prayed for. 4.4 So far as respondent No.4.1 is concerned, learned advocate Mr.Rushi Bhavsar was not present. However, considering the stand all throughout taken by respondent No.4 before the revenue authorities is that of supporting the present petitioner, his presence pales into insignificance.
5. Per contra, learned Assistant Government Pleader Mr.Rohan Shah, while supporting the impugned orders passed by the revenue authorities, has made following submissions.
(i) Learned Assistant Government Pleader has vehemently submitted that the land in question is restricted under the provisions of Section 73AA and admittedly the sale Page 6 of 11 Downloaded on : Sun Sep 17 00:48:23 IST 2023 NEUTRAL CITATION C/SCA/14631/2016 ORDER DATED: 09/08/2023 undefined deed in question was executed after amendment enacted in the Section and therefore, before executing sale deed, permission was not taken and thus, the action initiated by the authorities for the breach of Section 73AA is perfectly justified and thereby it may not be disturbed by this Court. 5.1 By making above submissions, learned Assistant Government Pleader has requested this Court to dismiss the petition in the interest of justice.
6. Considering the submissions made by respective learned advocates and having considered the materials produced on record, the short question that falls for consideration of this Court is whether the authorities can initiate suo motu proceedings for the breach of Section 73AA of the Land Revenue Code after a period of 26 years?
7. So as to decide the aforesaid question, it would be apt to take into consideration the provisions of Section 73AA(4)(b). The same being relevant, is reproduced hereunder.
"Section 73AA. Restriction on transfer of occupancies of tribals to tribals or non- tribals.-Page 7 of 11 Downloaded on : Sun Sep 17 00:48:23 IST 2023
NEUTRAL CITATION C/SCA/14631/2016 ORDER DATED: 09/08/2023 undefined (1) .........
(2) .........
(3) .........
(4) Where a tribal -
(a) .........
(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, notwithstanding 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 be void and thereupon the occupancy together with the standing crops thereon, if any, shall vest in the State Government free from all encumbrances."
8. Considering the aforesaid provisions, as it appears, the authorities, either by suo motu or upon an application made by a party, may initiate proceedings for breach of Section 73AA within a period of three years. Meaning thereby, in my view, to initiate any proceedings for breach of provisions of Section 73AA, the legislature has prescribed limitation of three years. Thus, the authority cannot, after a Page 8 of 11 Downloaded on : Sun Sep 17 00:48:23 IST 2023 NEUTRAL CITATION C/SCA/14631/2016 ORDER DATED: 09/08/2023 undefined period of three years, initiate suo motu proceedings under Section 73AA.
8.1 In the instant case, the sale deed was of the year 1982 whereas the suo motu proceedings was initiated in the year 2008 i.e. after a gross delay of 26 years which is barred by limitation as envisaged under the provisions of Section 73AA(4)(b). Thus, in my view, the orders passed by the authorities beyond the period of limitation cannot be said to be illegal and thus requires to be quashed and set aside.
9. At this stage, judgment of Division Bench of this Court in the case of Somabhai Sharubhai Gamit v. State of Gujarat being Letters Patent Appeal No.890 of 2017 decided vide judgment dated 08 th November, 2017 is required to be taken note of. The relevant paras of the said judgment is reproduced hereunder.
"12. From the aforesaid provision, it is clear that if there is violation of sub-section (1) of section 73AA of the Code or any other law for the time being in force, at the time of transfer of the occupancy to the person other than a tribal, the Collector can suo motu initiate proceedings for forfeiture of the property or the Collector can take action on the basis of the application submitted by the tribal transferor within a period of three years from the date of transfer. It is further revealed that such Page 9 of 11 Downloaded on : Sun Sep 17 00:48:23 IST 2023 NEUTRAL CITATION C/SCA/14631/2016 ORDER DATED: 09/08/2023 undefined action can be initiated after issuance of notice to the transferee or the successor-in-interest asking him to show cause why transfer should not be declared as void. However, from the fact discussed hereinabove, it is revealed that the application was submitted by the respondent No.3 for grant of permission to transfer the property in question in favour of the petitioner No.2. However, no application was submitted by the respondent No.3 within the stipulated time limit for declaring the transaction as void nor the Collector has initiated suo motu proceedings for declaring the transaction as void,as stated in subsection (4) of section 73AA of the Code. In that view of the matter, even if the contention of learned advocate, Mr. Qureshi appearing for the respondent No.3 that provision of section 73AA of the Code would be applicable to the constructed property is accepted, even then, the Collector has not followed the procedure prescribe under section 73AA(4) of the Code, thereby the Collector has committed an error while passing the impugned order dated 17.7.2008. The SSRD has also not considered the aforesaid important aspects of the matter and passed the impugned order dated 11.11.2016."
10. Considering the law laid down by the Division Bench in Somabhai Sharubhai Gamit (supra) as well as the provisions of the Act, in my considered opinion, the authorities cannot initiate suo motu proceedings for the breach of Section 73AA beyond the period of limitation as envisaged under Section 73AA(4)(b).
I answer the question accordingly.
11. In the result, the present petition deserves to be Page 10 of 11 Downloaded on : Sun Sep 17 00:48:23 IST 2023 NEUTRAL CITATION C/SCA/14631/2016 ORDER DATED: 09/08/2023 undefined allowed and is hereby allowed. Impugned order order dated 19th March, 2010 passed by Deputy Collector, Godhra, order dated 30th May, 2015 passed by Collector, Panchmahal as also order dated 03rd June, 2016 passed by Special Secretary, Revenue Department (Appeals) are hereby quashed and set aside. Rule is made absolute accordingly.
12. Civil Application, if any, stands disposed of in view of order passed in the main Special Civil Application.
(NIRAL R. MEHTA,J) ANUP Page 11 of 11 Downloaded on : Sun Sep 17 00:48:23 IST 2023