Back
2021 Supreme(Online)(Guj) 6670
HIGH COURT OF GUJARAT
DR. A. P. THAKER, J
VISHANJI SHIVLAL MISTRY JETHVA – Appellant
Versus
STATE OF GUJARAT – Respondent
R/SPECIAL CIVIL APPLICATION NO. 10560 of 2017
For the Appellants/Petitioners: MR HITESH N ACHARYA
For the Respondents: MR NIKUNJ KANARA
The retrospective application of Section 73(AA) of the Code is not valid for transactions predating its amendment.
Headnote:(A) Constitution of India - Articles 226 and 227 - Review of revenue orders - The petitioner challenged orders remanding the matter back to the Collector for rehearing, after 36 years delay in cancellation of entries - The Court found the proceedings void due to the non-applicability of Section 73(AA) of the Code and unreasonable delay. (Paras 9, 10)
(B) Statutory Restrictions - Applicability of Section 73(AA) - The provisions regarding transfers of land by tribals do not apply retrospectively to transactions that occurred before the amendment of 1981, hence the Collector's order was quashed. (Paras 8, 9)
| Table of Content |
|---|
| 1. petition initiates challenge to revenue orders. (Para 1 , 2) |
| 2. arguments regarding the delayed challenge and statutory interpretation. (Para 4 , 5) |
| 3. court discusses the legal impact of delays and the application of relevant statutory provisions. (Para 6 , 8) |
| 4. the statute is not applicable to past transactions; reasoning provided. (Para 9) |
| 5. final ruling on the legality of previous orders. (Para 10) |
JUDGEMENT
1. By filing this petition under Articles 226 and 227 of the Constitution of India, the petitioner has challenged order dated 29.4.2016 passed by Secretary Appeals, Revenue Department, in Revision Application No.MVV/ HKP/KACHCHH/57/2015 remanding the matter to learned Collector and also to quash and set aside the order dated 21.10.2015 passed by Collector in Sankalan/Appeal/ JMN/108(6) Case No.39 of 2013.
2. The brief facts of the case are that Karamsinh Govabhai Mistry was original owner of the land bearing Survey Nos.432, 433 and 565 (Old Survey No.1229) amdeasuring Acre 8-0 gunthas of Mouje-Anjar, District-Kachchh to the father of respondent no.7 viz. Koli Devabhai Samatbhai and one Punjabhai Desar. Thereafter both of them sold the land in question to respondent no.8 by a registered Sale Deed and entry was mutated in the revenue record vide entry No.1493 dated 1.8.1972 and the same came to be certified on 25.4.1973.
2.1 The promulgation entry was also made vide entry no.705 dated 29.5.1978 in Form No.6. The petitioner purchased the land in question from respondent no.8 on 28.5.1979 by registered Sale Deed and entry was mutated vide entry no.877 dated 27.8.1980, which came to be certified on 7.1.1981 in the revenue record. That as per error register, by order of the Deputy Collector in promulgation, entry No.8067 dated 26.9.2008 was mutated. Same was certified on 21.12.2008.
2.2 That the petitioner came in possession and cultivating the land and his name was also entered into in Village Form No.7/12 since 1981. Thereafter, after 36 years, respondent no.7 approached Collector for cancellation of entry no.705 dated 29.5.1978 and subsequent entry no.877 dated 27.8.1980 and entry no.8067 with separate application for condonation of delay. That respondent no.2-Collector, without passing any order on delay condonation application, straightaway passed interim order on 11.6.2013, whereby he directed to maintain status quo qua the land in question till further order. Due to that order, name of respondent no.7 was reflected in Village Form No.7/12 and name of the petitioner came to be removed from Village Form No.7/12, which was there since 1981. Thereafter, Collector straightaway allowed the appeal of respondent no.7 on merits and cancelled promulgation entry no.705 dated 29.5.1978 and subsequent entry no.877 dated 27.8.1980 and entry no.8067 dated 26.9.2008 and directed Prant Officer, Anjar, to proceed for violation of Section 73 (AA) and set aside interim stay. Same was challenged before learned SSRD, who remanded the matter back to the Collector for re-hearing.
2.3 It is contended that, after almost one year, the Collector has not yet started the proceedings as ordered by learned SSRD. It is contended that though the order of the Collector is quashed, respondent no.4 has yet not removed the name of respondent no.7 and not re-entered the name of petitioner in the revenue record. It is also contended that Section 73 (AA) is not applicable and it was not open for learned SSRD to remand the matter back to Collector for de novo hearing. It is also contended that application for condonation of delay filed by respondent no.7 is yet not decided. It is also contended that the petitioner is in possession since execution of registered Sale Deed in 1981. On this ground, it is submitted that the impugned order passed by learned Collector as well as learned SSRD are not tenable in the eyes of law and that
