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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
J.B.PARDIWALA, NIRAL R. MEHTA, JJ.
BEDIBEN D/O BUDHIYABHAI RATHODW/OAJESHBHAI KALPESHWAR JHA - Appellant
Versus
DISTRICT COLLECTOR & others - Respondent
LETTERS PATENT APPEAL NO. 960 of 2017 In SPECIAL CIVIL APPLICATION NO. 2645 of 2012 With CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2017 In LETTERS PATENT APPEAL NO. 960 of 2017
Decided On : 01-12-2021
Constitution of India, 1950 - Article 226, 342 - Bombay Land Revenue Code, 1879 - Section 73AA, Section 73AA, 79A, 2(6), 202, 32(M), 43(G) - Bombay Land Revenue (Gujarat Second Amendment) Act, 1980- Section 73AB - Gujarat Land Revenue Rules, 1972 - Rule 108(5) - Restriction on transfer of occupancies of tribals to tribals or non-tribals - Appellant who is seeking equitable relief from Court is a rustic tribal woman - This aspect also needs to be kept in mind while dealing with issue of delay and laches - Whether to grant any relief is one of discretion for Court to follow from case to case - Whether he is willing to purchase occupancy and cultivate land personally - Whether land should be ultimately granted to appellant or not will be subject to appellant fulfilling conditions as laid in sub-clause (5) of Section 73AA of Code – Held, Court may not inquire into belated and stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion, and there is no inviolable rule that whenever there is delay, Court must necessarily refuse to entertain writ application - Each case must depend on its own facts - Appellant who is seeking equitable relief from Court is a rustic tribal woman - This aspect also needs to be kept in mind while dealing with issue of delay and laches - Petition stands disposed of.
JUDGMENT :
J.B.PARDIWALA, J.
1. The appeal is ordered to be admitted and the same is taken up for final hearing forthwith. Mr. Joshi, the learned AGP, waives service of notice of rule for and on behalf of the respondents.
2. This appeal under Clause 15 of the Letters Patent is at the instance of an unsuccessful writ applicant of a writ application and is directed against the judgment and order passed by a learned Single Judge of this Court dated 22nd March, 2017 in the Special Civil Application No.2645 of 2012, by which, the learned Single Judge declined to grant any relief to the appellant herein and thought fit to dispose of the writ application with few observations.
3. We need not delve much into the facts giving rise to this appeal as the facts have been elaborately stated in the impugned order passed by the learned Single Judge. We quote the entire order.
2. In present petition, the petitioner has prayed, inter alia, that:-
“10A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus / certiorari or any other appropriate writ, order or direction to quashed and set aside non-action of the Res.No.1 District Collector, Surat by directing him to take appropriate steps envisaged under Section 73AA, 79A and 202 of the code for the land bearing survey number 173/3 and 175/1 of village Katargam, Taluka: City District Surat, in the interest of justice.
(B) YOUR LORDSHIPS may be pleased to call for the explanation from the District Collector, Surat for the non compliance of mandatory statutory duty cast under provisions of the Gujarat Land Revenue Code despite reminded time and again and further be pleased to direct the State Government to take appropriate disciplinary steps against the defaulting authority in the interest of justice.
(C) YOUR LORDSHIPS may be pleased to call for the explanation from the District Collector, Surat for the non compliance of mandatory provisions of the Gujarat Land Revenue Code despite reminded time and again and further be pleased to direct the State Government to take appropriate disciplinary steps against the defaulting authority, pending admission, hearing and final disposal of the present petition.”
3. Actually, a petition under Article 226 of the Constitution of India for “setting aside non-action of the authority”, does not deserve to be entertained, more particularly when the authority, in response to any request for particular action, has not refused to take the action.
4. Further, in present petition, any order of the nature which the petitioner has requested for is, if granted at this stage, likely to affect the provision related to time limit prescribed for taking action in accordance with applicable provisions. Therefore also, the request in the petition does not deserve to be accepted, otherwise, it would negate the provision prescribing time limit.
5. So as to appreciate the position that the relief prayed for in the petition cannot be entertained and granted, it is appropriate to take into account factual background. The petitioner has averred and stated that:-
“(3.1) The petitioner approached to the office of the District Collector u/s.73AA for the possession of such occupancy of the land bearing survey number 173/3 and 175 of Village: Katargam, District: Surat. The Office of the Collector, pursuant to the aforesaid application, directed the office of the Dy. Collector to instate proceedings u/s. 73AA and hence notice dated 03-05-07 u/s. 73AA of the code by the Dy. Collector.
(3.2) The proceedings initiated by the Dy. Collector u/ s.73AA of the code vide notice dated 03-05-07 was registered as Case No.JAMAN/73AA(4)/2/07. The Dy. Collector, after affording appropriate opportunity of being heard all the affected parties, was pleased to pass order dated 29-12-08 by holding the transfer of land against the provision of Se.73AA(1) and set it aside by exercising the powers u/s 73AA(4) of th
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