Gujarat High Court

Abdul Rehman Haji Ibrahim Madari vs State Of Gujarat on 9 August, 2023

Bench: Niral R. Mehta

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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

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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

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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.

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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

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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

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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.-

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(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

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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

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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

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allowed and is hereby allowed. Impugned order order dated