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Gujarat High Court · body

2016 DIGILAW 2041 (GUJ)

Natwarbhai Ranchhodbhai Patel v. State of Gujarat

2016-09-14

BELA M.TRIVEDI

body2016
JUDGMENT : 1. The petition has been preferred by the petitioner challenging the order dated 09.10.2000 passed by the Respondent No.1Special Secretary (Appeals), Revenue Department (hereinafter referred to as ‘the SSRD’ for short) in Revision Application No.SRD/LND/B/73/1981 at Annexure-B, whereby the Respondent No.1 has confirmed the order dated 12.03.1981 passed by the Respondent No.3 Deputy Collector, Rajpipla in the proceedings under section 73A of the Bombay Land Revenue Code (hereinafter referred to as “the Code” for short). 2. The short facts leading to the present petition are as under. 3. The petitioner had purchased the land bearing Survey No.163 admeasuring 9 acres, 12 gunthas belonging to Chindiapara village, Taluka Nandod, District Bharuch from the father of the respondent No.2 as per the registered sale-deed executed on 20.03.1967. According to the petitioner, name of the petitioner was also mutated in the revenue record in that regard. The Respondent no.3 about 13 years of the sale issued notice on 15.01.1981 calling upon the petitioner to show-cause as to why the sale of the land in question should not be declared invalid in view of section 73A of the said Code. The Respondent No.3 thereafter, passed the order dated 12.03.1981 holding that the petitioner was liable to be summarily evicted from the said land in question under section 79A for violation of section 73A of the Code. Being aggrieved by the said order the petitioner had preferred Revision application before the Respondent no.1, who vide the impugned order dated 09.10.2000 dismissed the said Revision Application and confirmed the order dated 12.03.1981 passed by the Deputy Collector. Hence, the present petition has been filed. 4. The Respondent has filed the reply stating inter alia, that the petitioner having purchased the land as per the sale-deed dated 20.03.1967 without obtaining permission of the Collector under section 73A of the said Code, the Respondent No.3 had rightly initiated the proceedings under section 73A of the said Code. The petitioner has filed an additional affidavit along with the statement (Annexure-C) stating inter alia, that the survey settlement had already taken place in respect of village Chindiapara prior to 1961 and therefore provisions of section 73A did not apply to the land in question. 5. The petitioner has filed an additional affidavit along with the statement (Annexure-C) stating inter alia, that the survey settlement had already taken place in respect of village Chindiapara prior to 1961 and therefore provisions of section 73A did not apply to the land in question. 5. The bone of contention raised by the learned counsel for the petitioners is that the provision contained in the Section 73A of the Code was not applicable to the land in question, which was situated at village Chindiapara, inasmuch as, as per the Land Revenue Department Record, the survey settlement of village Chindiapara had already taken place in the year 1923, which held the field even after 04.04.1961 when the Government issued the notification under Section 73A of the Code. He has relied upon the statement filed by the petitioner along with the additional affidavit in support of his submissions. He has also relied upon decisions of this Court in the case of Dhanabhai Bhikhabhai Vs. Rabubhai Narensinghbhai Naik & Ors., given in Special Civil Application No. 1191 of 1974 as also in the case of Gomtiben widow of Bhakttibhai Khusalbhai Bhakt Vs. Deputy Secretary and Others in Special Civil Applications No.8272 of 2000 with 8268 of 2000 decided on 01.02.2013. He also submitted that entry made in the year 1970 was sought to be revised by the Deputy Collector after an unreasonable period of 13 years, and therefore, also the entire proceedings initiated under Section 73A of the Code were liable to be set aside. The learned AGP has supported the findings recorded in the order passed by the Deputy Collector, however is not in a position to dispute the statement (Annexure-C) filed by the petitioner along with his additional affidavit. 6. In order to appreciate the contentions raised by the learned Advocates for the parties, it would be beneficial to reproduce section 73A of the Code, under which the action was sought to be taken by the Deputy Collector. Section 73A reads as under: “73A. Power to restrict right to transfer:- (1) Notwithstanding anything in the foregoing section, in any tract or village to which the State Government may, by notification published before the introduction herein of an original survey settlement under section 103, declare the provisions of this section applicable, occupancies shall not after the date of such notification be transferable without the previous sanction of the Collector. (2) The State Government may, by notifications in the Official Gazette, from time to time exempt any part of such tract or village or any person or class of persons from the operation of this section.” 7. From the bare reading of Section 73A, it transpires that before the introduction of original survey settlement under section 103 in respect of any tract or village, the State Government may by notification declare provision of section 73A applicable to such tract or village, and after publication of such notification, the occupancies thereof could not be transferred without the previous sanction of the Collector. 8. Having regard to the submissions made by the learned Counsels for the parties, it appears that the survey settlement had taken place in respect of the area covered under village Chindiapara in the year 1930 as per Annexure-C to the additional affidavit filed by the petitioner, and that the State Government had published the notification under section 73A on 04.04.1961. Meaning thereby before publication of the said notification the Survey Settlement was already introduced in the village Chindiapara. Under the circumstances, the provisions of Section 73A would not get attracted. 9. In similar situation, this Court in case of Devshankar Ambalal Jani Vs. State of Gujarat and Ors., reported in 1996 (2) GLH 330 , observed as under:- “13. The object of Section 73A is to protect members of scheduled tribes against exploitation. The provision aims at to put restriction on transferability of occupancy in certain tracts and area where such protection was necessary. It is true that section 73A provides that a notification can be issued under the section in respect of any tract or village in which original survey settlement is not introduced. The area of operation of the section is clearly demarcated. Thus, the section specifies the area in which it can be brought into operation and the person or class of persons in respect of whom it can be brought into operation. Thus, a prohibition injected against transfer of land in any tract or village to which notification is issued under Section 73A is to provide protection to persons belonging to scheduled tribes and in certain tracts and areas. Thus, a prohibition injected against transfer of land in any tract or village to which notification is issued under Section 73A is to provide protection to persons belonging to scheduled tribes and in certain tracts and areas. However, notification under Section 73A issued by respondent No.1-State of Gujarat dated 4.4.1961 clearly ipso facto says that it shall apply to all those villages in the scheduled areas in the State of Gujarat in which survey settlement under the Bombay Land Revenue Code has not been introduced and to which provisions of section 73A have not been made applicable before issue of notification. Since survey settlement in respect of the disputed land situated in Bhiloda in Sabarkantha district had been made in, as early as, in 1934, the said notification will not apply to the disputed land. Despite this, the impugned orders came to be passed exercising powers under section 73A relying on the said notification. The respondent authorities lost sight of this proposition that survey settlement had been made by the authority of the Erstwhile State of Idar and it came to be accepted by respondent No.1-State of Gujarat. Consequently, it becomes survey settlement under the Bombay Land Revenue Code, with the result, the impugned order of the Deputy Collector dated 26.9.1990 wherein it is held that there was violation of section 73A and, therefore, the transfer is held to be illegal, is itself illegal and it is wrongly confirmed by the Collector in appeal so also by respondent No.1 in revision.” 10. In the instant case, undisputedly the survey settlement had been introduced in respect of the area of village Chindiapara in the year 1930, which held the field beyond the period of 1961 and therefore, the Government Notification dated 04.04.1961 issued under section 73A of the Code restricting the transfer of land would not be applicable to the said area. The learned AGP has failed to point out as to how provision of section 73A of the Code would be attracted when the survey settlement had taken place in the year 1930. 11. The learned AGP has failed to point out as to how provision of section 73A of the Code would be attracted when the survey settlement had taken place in the year 1930. 11. Under the circumstances, without going into the merits or the issue whether the petitioner hold any valid title in respect of the land in question or not, the impugned orders deserve to be set aside only on the ground that the provisions of section 73A of the Code being not applicable to the land in question, the violation thereof would not arise, and the proceedings initiated under the said provision could not be vindicated. 12. In that view of the matter, the impugned orders passed by the Respondent authorities are set aside. The petition stands allowed to the aforesaid extent. Rule is made absolute accordingly. Petition allowed.