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1998 Supreme(Guj) 207
Gujarat High Court
Judgename :B.C.PATEL
VASANJIBHAI GOKALBHAI PATEL - Appellant
Versus
DEPUTY COLLECTOR,songadh - Respondent
S.C.A. 4307 of 1987
Decided On : 04/18/1998
Headnote:(a) Bombay Land Revenue Code, 1879 - Sec. 73-AA & 73-AA(4), Sec. 211 - Bombay Tenancy & Agriculture Act, 1948 - Sec. 43(1)(a) - Civil Procedure Code, 1908 - Order 21, Rule 102 - Transfer by sale by a holder of new tenure after due permission under Sec. 43(1)(a) - Dy. Collector initiating proceedings under Sec. 73-AA treating the transfer invalid - Held, Sec. 73-AA would be inapplicable in the present case as `transfer had taken place much before the coming into force of Sec. 73-AA.
Mr. Jadeja, learned advocate for the petitioner submitted that in view of this, there was sufficient material before the authority that the transfer took place before Sec. 73-AA came into force and that too when one authority was satisfied about the genuineness of the transaction the Deputy Collector as well as the Deputy Secretary ought to have discharged the notice and ought not to have passed the impugned orders. This submission is to be accepted.
There was uncontroverted testimony of respondent no. 2 to the effect that the transfer took place on 28.2.78 i.e., the date when agreement to sell came to be executed, the provisions contained in Sec. 73-AA of Bombay Land Revenue Code, 1879 could not have been attracted. Sec. 73-AA putting restriction on transfer of occupancies of tribals to tribals or non tribals was brought into force for the first time on 1.2.81 by Act No. 37 of 1980.
Thus, in view of this specific position pointed out by Mr. Jadeja, that the transfer took place before Sec. 73-AA came into force and therefore, the proceedings initiated against the petitioner are required to be set aside as on the date there was no restriction as mentioned in Sec. 73-AA.
Sec. 73-AA restricts transfer of possession of occupancy to another. It would be in the fitness of things to consider the provisions contained in Order 21 Rule 102 of Code of Civil Procedure, by this Court in case of Lajjashanker Keshavji Joshi vs. State, reported in 1985 (2) GLR 658.
[Para 7]
(b) Words & Phrases - Bombay Land Revenue Code, 1879 - Sec. 73-AA - Held, the word `transfer here should be taken to connote a transfer of title and not of actual possession necessarily.
Merely because under a statute permission was required to be taken which was granted on 18.1.80 and thereafter the sale deed was executed, it does not mean that the section can be said to be applicable. The word `transfer is required to be understood in a wider sense. It is not necessary that when actual transfer of a property takes place, there must be transfer of title.
[Para 7]
(c) Bombay Land Revenue Code, 1879 - Secs. 73-AA & 73-AA(4) - Held, that even assuming that Sec. 73-AA is applicable, in terms of Sec. 73-AA(4), exercise of power beyond reasonable period (beyond three years in this case) is not permissible & notice therefore illegal.
[Para 8]
Action should have been taken within a period of three years i.e., reasonable time where no time limit is prescribed. When no period of limitation is prescribed, then power must be exercised within a reasonable period and the length of reasonable time must be determined by facts and circumstances of the case and the nature of the order. He invited my attention to a reported judgment of the Apex Court in the case of State of Gujarat vs. Raghav Natha, reported in 10 GLR 992.
As the Apex Court pointed out that this power must be exercised within a reasonable period and the length of time must be determined by the facts and circumstances, and the nature of the order being revised.
Action was not taken immediately on presentation of the document but after a period of three years action is taken and considering the facts and circumstances of this case, it would not be just and proper to hold that the power is exercised within a reasonable time.
[Para 9]
( 1 ) PETITIONER has challenged the orders passed by the Dy. Collector, Songadh, District Surat in Case No. JMN/73aa/vihan-52/85, dated 30-11-1985 vide Annexure A and confirmed in Revision under Sec. 211 of the bombay Land Revenue Code by Dy. Secretary, Revenue, State of Gujarat dated 27th february, 1987 being No. S. R. D. /jmn/562/86 vide Annexure B.
( 2 ) RESPONDENT No. 2 Shri Bhagabhai Manchhabhai Rathod was holding a new tenure land admeasuring 0 acre 36 gunthas of block No. 71 (of Survey No. 624) at village Vihan, Taluka Kamrej, District Surat. From the proceedings, it appears that the said Shri Bhagabhai Manchhabhai Rathod - respondent No. 2 herein was in need of money as he was required to pay Government debt as well as other debts. On 28th February, 1978, an agreement to sell came to be executed and an application for permission was forwarded under Sec. 43 of the Bombay Tenancy and Agricultural lands Act, 1948. Prant Officer on 18-11-1980 after being satisfied granted permission under Sec. 43 of the said Act. Thereafter, a registered sale deed came to be executed on 14-7-1981 which also reveals that the said Bhagabhai Manchhabhai respondent No. 2 herein is a tribal. The land in question was 36 gunthas, less than one acre for which amount of Rs. 7,000. 00 was paid and as held by the Dy. Collector, the price fixed was quite reasonable.
( 3 ) PROCEEDINGS came to be initiated by issuance of show-cause notice on 16-8-1984 under Sec. 73aa of Bombay Land Revenue Code, 1879 by the Deputy collector, calling upon the petitioner herein as to why the transfer should not be declared as invalid, why transaction should not be set aside and after restoring the land to the Government why three times fine of the value of the land should not be imposed.
( 4 ) IT is in view of the said show-cause notice that the petitioner as well as Shri bhagabhai Manchhabhai appeared before the authority and Shri Bhagabhai manchhabhai Rathod - respondent No. 2 herein pointed out that new tenure land was required to be transferred for which permission was granted by Prant Officer and in view of this, document was executed and registered on 14-7-1981. He was not even willing to take possession of the land if he was offered the same. Not only this, but in affidavit dated 17-12-1979 (at page 85 of the record as mentioned in the order by respondent No. 1) it has been pointed out that the land in question was transferred on 28-2-1978, i. e. , the date on which agreement to sell came to be executed and the request was made to withdraw the said show-cause notice.
( 5 ) DESPITE (1) the possession being handed over on 28-2-1978, (2) under permission granted by the Prant Officer under Sec. 43 of the Bombay Tenancy and agricultural Lands Act, 1948, the entry being made in Form No. 6 at serial No. 3038 dated 20th February, 1982 indicating the permission granted by the Prant Officer, olpad on 18-11-1980 and (3) on 14-7-1981, a registered sale deed being executed, after a period of three years notice came to be issued. The Deputy Collector passed an order holding that the transfer is in contravention of the provisions of the said act and he forfeited the land in question and imposed a fine of Rs. 7,000. 00 by an order dated 30-11-1985 vide Annexure A. The said order came to be challenged by preferring a revision application wherein the aforesaid aspects were pointed out, but the application came to be rejected vide Annexure B.
( 6 ) MR. Jadeja, learned Advocate submitted that, the proceedings are initiated without considering that Sec. 73aa of the Bombay Land Revenue Code is inapplicable as transfer took place much before the said provision came into force. He further submitted that even assuming that the provision is applicable, exercise of power beyond reasonable period is not permissible and therefore, also the notice issued and orders passed thereon must be quashed.
( 7 ) MR. Jadeja, learned Advocate appearing for the petitioner pointed out that whe
