2005 Supreme(Guj) 594

Gujarat High Court
Judgename :H.N.Devani
PUNJABHAI JETHABHAI PATEL - Appellant
Versus
STATE OF GUJARAT - Respondent
SPECIAL CIVIL APPLICATION 10930 of 1995
Decided On : 09/07/2005

Headnote:Point in Issue :

       Land Revenue - Transfer of tribal land to non tribal - Exchange mode - Impugned transfer made prior to imposition of bar - Held, valid.

       Head Note :

       (a) Bombay Land Revenue Code, 1879 - Sections 73-A/211 and 73-AA (As introduced by Gujarat Second Amendment) Act, 1980 - Transfer of tribal land to non-tribal through exchange mode - Transfer affected prior to imposition of bar under Section 73-AA - Original survey by erstwhile State of Idar in the year 1936 - Provisions of Section 73-A made applicable in 1961 - Similarly exchange deed executed in 1976 whereas bar under Section 73-AA made effective from 1980 - Hence, no prior permission as envisaged under Section 73-AA was required - Also, provisions of Section 73-A was also not applicable - Thus, impugned exchange of land held valid - Impugned orders of Collector and revisional authority thus set aside.

       Held :

       In the facts of the present case, the alleged breach of Sections 73-A and 73-AA of the Code is on account of the exchange effected by the registered deed dated 28.04.1976, whereby the lands admeasuring 2 gunthas of survey No. 94/2 situated in the Sim of Mouje Bundheli, Taluka Bhiloda had been exchanged for the land of survey No. 101 of the same village, admeasuring 2 acres 11 gunthas. [Para 13]

       In the facts of the present case it is an admitted position that a survey settlement had been made by the erstwhile State of Idar in the Year 1936 which covered Bhiloda Taluka, including village Bundheli wherein the subject lands are situated. The question as to whether the settlement of survey for land revenue made by the erstwhile State of Idar, prior to the introduction of the Bombay Land Revenue Code could be said to be a survey settlement under the Code came up for consideration before this Court in the case of Devshankar Ambalal Jani vs. State of Gujarat, 1997 (1) GLR 279 and it was held that the survey settlement carried out by some authority before the introduction and remaining in force at the date of commencement of the Bombay Land Revenue Code (Amendment) Act, 1939 becomes a survey settlement under the Bombay Land Revenue Code. It was further held that the survey settlement of land carried out by the authority of the erstwhile State of Idar and accepted by the State of Gujarat had become a survey settlement under the Bombay Land Revenue Code. Thus on facts it cannot be disputed that the survey settlement was made in respect of Bhiloda Taluka including village Bundheli in the year 1936, whereas the provisions of Section 73-A of the Code had been made applicable to the same by a notification dated 04.04.1961. The basic requirement for applicability of the provisions of Section 73-A of the Code is that the notification under Section 73-A should precede the original survey settlement, which is not fulfilled in the present case inasmuch as the original survey settlement was introduced much before the notification under Section 73-A of the Code. Hence, the learned Advocate for the petitioner is right in contending that the provisions of Section 73-A of the Code are not applicable to the subject lands, and, therefore, prior sanction of the Collector was not required for transferring the same. This view is fortified by the aforesaid decision of this Court wherein this Court had noted the fact that the notification under Section 73-A of the Code issued by the Respondent No. 1 State of Gujarat dated 04.04.1961 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 the provisions of Section 73-A have not been made applicable before issue of notification. It was held that since survey settlement in respect of the disputed land situated in Bhiloda in Sabarkantha district had been made in, as early as 1934, the said notification will not apply to the disputed land. [Para 15]

       Insofar as the applicability of the provisions of Section 73-AA of the Code is concerned, Sub-section (1) of Section 73-AA places a restriction on transfers of occupancies from tribals to tribals and non-tribals without the previous permission of the Collector. Section 73-AA was enacted by the Gujarat Act 37 of 1980. Under the provision of Clause (a) of Sub-section (4) of Section 73-AA, the Collector can suo motu, at any time, on an application made by the tribal transferor or his successor at any time within three years from the said date or the date of such transfer, whichever is later, initiate proceedings in contravention of Sub-section (1) of Section 73-AA in case where a tribal transfers his occupancy to any person other than a tribal at any time after the date of commencement of the Bombay Land Revenue Code (Gujarat Second Amendment) Act, 1980 (Gujarat 37 of 1980). Thus it is clear that the said provision applies to contravention of Sub-section (1) of 73-AA any time on or after the date of commencement of the Bombay Land Revenue (Gujarat Second Amendment), Act, 1980. Hence, transfer of occupancy by a tribal to a non-tribal prior to the coming into force of the Amendment Act of 1980 cannot be said to be a contravention falling within the ambit of sub-section (1) of Section 73-AA. In the facts of the present case the transfer of occupancy by way of exchange has been effected in 1976, that is much before the coming into force of the Amendment Act of 1980, hence, the same cannot in any manner said to be in contravention of Sub-section (1) of Section 73-AA of the Code. [Para 16]

       The petition is required to be allowed on the basic ground that the provisions in respect of which contravention is alleged and consequent action has been taken are not applicable to the transaction in question, it is not necessary to deal with the contention as regards limitation as well as on the merits of the transaction. [Para 18]

       Neither the provisions of Section 73-A of the Code, nor the provisions of Section 73-AA of the Code are applicable to the transfer in question. Accordingly, the impugned orders dated 30.06.1995 passed by the State Government (Annexure "F"), the order dated June 1993 passed by the Collector, Sabarkantha (Annexure "E"), the order dated 29.05.1989 passed by the Deputy Collector, LAND-8 Scheme, Sabarkantha, Himmatnagar (Annexure "D") as well as the order dated 13.01.1989 passed by the Collector, Sabarkantha (Annexure "C"), are quashed and set aside. [Para 19]

       Head Note :

       (b) Transfer of Property Act, 1882 (Central Act 4 of 1882) - Section 118 - Exchange - Is recognised mode of transfer.

       Held :

       Both the sections quoted above, prohibit the transfer of occupancies as specified therein without the prior sanction of the Collector. "Exchange" which is defined under Section 118 of the Transfer of Property Act, 1882 is a recognised mode of transfer under the said Act. Hence, the contention raised by the learned Advocate for the petitioner that the provisions of Sections 73-A and 73-AA of the Code do not envisage a transfer by way of exchange does not merit acceptance. [Para 14]

       Law Laid Down :

       Impugned transfer of land from tribal to non-tribal by way of exchange was valid.

       Case Law Analysis :

       Devshankar Ambalal Jani vs. State of Gujarat, 1997 (1) GLR 279 [Para 10].-Relied on

       Cases Referred :

       State of Gujarat vs. Patel Raghav Natha, 1969 (10) GLR 992, Mohamad Kavi Mohamad Amin vs. Fatmabai Ibrahim, 1997 (6) SCC 71;; Bhagwanji Bawanji Patel vs. State of Gujarat, 1971 (12) GLR 156;; Thakoreshri Naharasinghji Dolasinhji vs. State of Gujarat, AIR 1980 SC 59.

       Decided in Favour of :

       Petitioner

       Petition Allowed