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2009 Supreme(Guj) 231
2009 (3) GCD 2563 (Guj)
Hon’ble Mr. Justice D.A. Mehta
Bhil Khoda Ranmal & Anr.
Versus
Joint Secretary, Appeal & Ors.
Special Civil Application No. 10589 of 2008—Decided on 15/04/2009
Appearance :
Mr. S.K. Gadhavi, for Petitioners No. 1 - 2.
Ms. Manisha Lavkumar, AGP for the Respondents No. 1 - 2.
Mr. Mahendra U. Vora, for the Respondent No. 3.
Mr. Mahendra K. Patel, for the Respondent No. 4.
Point in Issue :
Whether in the facts, order of confiscation of land is validly made by authorities?
Headnote:Head Note :
Bombay Land Revenue Code, 1879 — Sections 73-AA(1), (2), (3) and (4) — Order of confiscation of land — Land was allotted to Respondent No. 3 — He committed breach of condition by sale of land to petitioners — Propriety of order — Held, in the case sale of land is by a tribal to another tribal, therefore, authority has no power to order confiscation of land — Impugned orders of Assistant Collector and revisional authority set aside.
Held :
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.
[Para 11]
Law Laid Down :
In case of transfer of land by a tribal to another tribal there is no provision for confiscation of land under the Act.
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. 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 Cod
