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Gujarat High Court · body

2009 DIGILAW 268 (GUJ)

Bhil Khoda Ranmal v. Joint Secretary, Appeal

2009-04-15

D.A.MEHTA

body2009
Judgment D.A. Mehta, J.—Considering the scope of dispute between the parties and the respective stands of the parties, the petition is taken up for final hearing and disposal today. Rule. Learned advocates appearing for the respective respondents are directed to waive service. 2. It is the case of the petitioners that land bearing Survey No. 191/1 paiki, admeasuring 10 Gunthas of new tenure, situated at Village Khedva, Taluka Bhildi, Dist. Banaskantha, stood in the name of one Shri Bhil Chhogaji Motiji, Respondent No. 3 herein, and the same was re-granted vide Entry No. 377 as per order of Deputy Collector, Palanpur on 04.01.1981 to Respondent No. 3. Admittedly Respondent No. 3, got the said land converted from new tenure to old tenure upon certain conditions. 3. It is further averred by the petitioners that vide Sale Deed Nos. 382/99 and 383/99 Respondent No. 3 sold the land to the petitioners on 15.02.1999. Respondent No. 2, Assistant Collector, District Banaskantha undertook suo motu revisional proceedings and made an order on 02.05.2000 whereby the said land was confiscated and directed to be vested in the State Government. The reason for making the order, as stated in the order made by Respondent No. 2 authority, is that Respondent No. 3 had committed breach of provisions of Section 73-AA(1) of the Bombay Land Revenue Code, 1879 (the Code). The petitioners carried the matter in revision before Respondent No. 1 authority who, vide impugned order dated 13.04.2007, confirmed the order made by Respondent No. 2 but at the same time also took note of the fact that there was a civil dispute as to the status of Respondent No. 4, who was claiming to be adopted son of Respondent No. 3 and, therefore, directed that Assistant Collector shall abide by the judgment and order of the Civil Court in this regard. 4. Learned Advocate for the petitioners submitted that the transaction in question was between a member of the Schedule Tribe and another member of the Schedule Tribe and thus was a permissible transaction subject to the condition that prior sanction of the authority was obtained as required by provisions of Sub-section (1) of Section 73-AA of the Code. 4. Learned Advocate for the petitioners submitted that the transaction in question was between a member of the Schedule Tribe and another member of the Schedule Tribe and thus was a permissible transaction subject to the condition that prior sanction of the authority was obtained as required by provisions of Sub-section (1) of Section 73-AA of the Code. It was submitted that even if there was breach of the said requirement, under Sub-section (3) of Section 73-AA of the Code an elaborate procedure was laid down by which the authority was required to carry out an inquiry and thereafter restore the possession of the land to the transferor Tribal on the same terms and conditions, but in no event could the authority confiscate the land. It was therefore submitted that the confiscation being illegal, both the impugned orders were required to be quashed and set aside. 5. Learned Assistant Government Pleader submitted that the land having been granted by the State Government if there was violation of provisions of Section 73AA of the Code the authority was justified in directing vesting of the land back to the State Government and the petitioners, being third parties, could not make any such grievance. It was submitted that in the circumstances, the orders made by the respondent authorities were justified and proper and no interference was warranted. 6. On behalf of Respondent No. 3, it was submitted that the orders made by respondent authorities were bad in law and in fact Respondent No. 3 had already, in written submission filed before Respondent No. 1 authority, stated that the entire transaction was sham, Respondent No. 3 having never affixed thumb impression, either to the sale document or to any other document. That Respondent No. 4 was also not a person who was adopted by Respondent No. 3 and for this purpose, necessary civil suit had been filed which was pending. Lastly it was submitted that Respondent No. 3 shall file an appropriate application as required by provisions of Sub-section (3) of Section 73-AA of the Code seeking restoration of the land in question in accordance with law. 7. It is not in dispute that Section 73-AA of the Code is a complete code by itself dealing with occupancy of a person belonging to any of the Schedule Tribes. 7. It is not in dispute that Section 73-AA of the Code is a complete code by itself dealing with occupancy of a person belonging to any of the Schedule Tribes. The relevant part of the provisions reads as under: “73-AA.(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 73-AB referred to as “(the Tribal)” shall not be transferred to 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 of 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 unauthorisedly 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.” 8. On a plain reading the scheme that unfolds is that a member of a Schedule Tribe cannot transfer his occupancy to any person without previous sanction of the Collector as stipulated by Sub-section (1) of Section 73-AA of the Code. On a plain reading the scheme that unfolds is that a member of a Schedule Tribe cannot transfer his occupancy to any person without previous sanction of the Collector as stipulated by Sub-section (1) of Section 73-AA of the Code. Under Sub-section (2) of Section 73AA of the Code the Collector is empowered to grant previous sanction in such circumstances and subject to such conditions as may be prescribed. Admittedly in the facts of the present case no such previous sanction was sought and, therefore, operation of Sub-section (2) of Section 73-AA of the Code does not come into play. 9. Under Sub-section (3) of Section 73-AA of the Code it is specifically provided that when a Tribal transfers the possession of his occupancy to another Tribal without obtaining previous sanction either the transferor or the successor in interest may, within two years of such transfer, apply to the collector that the possession of such occupancy may be restored to the transferor. Upon receipt of such an application the Collector shall, after issuing a show cause notice in the prescribed form to the transferee, hold an inquiry and thereafter make a declaration that the transferee or the successor in interest shall not be entitled to retain possession of the occupancy and that the occupancy shall be restored to the transferor Tribal or the successor in interest upon same terms and conditions on which the transferor held the occupancy immediately before the transfer and subject to his acceptance of the liability to make payment of arrears of land revenue in respect of such occupancy. The declaration shall result in the consequence to the effect that the transferee shall be deemed to be unauthorizedly occupying the occupancy. 10. After such a declaration is made, in terms of the Proviso to Sub-section (3) of Section 73-AA of the Code, it is stipulated that the declaration shall stand revoked if the transferor fails or refuses in writing to accept the restoration of the possession of such occupancy within the prescribed period. 11. Thus, the authority has limited and specific powers under Section 73-AA(3) of the Code which include, in the first instance, to issue a show cause notice to the transferee, secondly hold an inquiry, and thereafter make a declaration. The contents of the declaration have already been noted hereinbefore. The authority cannot go beyond such powers to order confiscation. 11. Thus, the authority has limited and specific powers under Section 73-AA(3) of the Code which include, in the first instance, to issue a show cause notice to the transferee, secondly hold an inquiry, and thereafter make a declaration. The contents of the declaration have already been noted hereinbefore. The authority cannot go beyond such powers to order confiscation. The powers to order confiscation are available independently in Sub-section (4) of Section 73-AA of the Code in a case where the transfer of the occupancy by a Tribal is to a non-tribal. The embargo envisaged by Sub-section (1) of Section 73-AA of the Code is both in relation to a Tribal and a non-tribal transferee as the language of the said provision stipulates transfer by a Tribal “to any person”. Whereas Sub-section (3) of Section 73-AA of the Code is applicable only in a case of transfer by a Tribal to another tribal. In the facts of the present case, it is not in dispute that the authority has not recorded any finding that the transfer is by a Tribal to a non-tribal. Therefore, the case is governed only by Sub-section (3) of Section 73-AA of the Code and the authority cannot invoke powers under Section (4) of Section 73-AA of the Code and confiscate the land. 12. However, as noted hereinbefore, Respondent No. 3 has made a submission to the effect that Respondent No. 3 intends to make an application before the authority seeking restoration of the possession of the occupancy. In the circumstances, it would serve the ends of justice if the following directions are made. 13. The impugned orders made by the Assistant Collector and the revisional authority on 02.05.2000 and 21.04.2007 respectively to the extent the orders direct confiscation of land are held to be bad in law and stand quashed and are set aside. However, in the facts of the present case, as Respondent No. 3 has expressed a desire to move the authority under provisions of Sub-section (3) of Section 73AA of the Code, the possession of the occupancy shall not be transferred to the petitioners, if Respondent No. 3 moves such an application within a period of three weeks from today before the appropriate authority without waiting for a certified copy of this order. In the event such an application is made by Respondent No. 3, the respondent authority shall deal with the said application in accordance with law, more particularly provisions of Section of Section 73AA(3) of the Code. 14. The petition is allowed accordingly in the aforesaid terms. Rule made absolute. There shall be no order as to costs.