The powers of the Collector under the Bombay Tenancy Act are statutory and cannot be overridden by government resolutions.

JUDGEMENT

(PER : HONOURABLE MR.JUSTICE S.G. SHAH) 1. We have heard learned counsel Mr. R.A. Patel, appearing for the appellant and learned AGP Mr.

A.N.Shah for the respondents.

2. The appellant has filed an application on 18th September 2001, seeking permission from the Mamlatdar for withdrawing the restrictions under Section 43 (1) of the Bombay Tenancy and Agricultural Lands Act 1948 ( For short the Act). It appears from the order of Collector dated 25th July 2006 that a resolution dated 7th October 2005, was passed and the Government confer the powers on the Collectors.

3. Exercising the powers in pursuance of above resolution, the Collector rejected the application dated 18.09.2001 of the appellant, on 25th July 2006. The appellant challenge such order before the Learned Single Judge on the ground that Section 70 (o) of the Act confers power to the Mamlatdar and Government Resolution can not override or supersede the provision of the Act and the Government could not confer the power on the Collector unless the Act is amended.

4. The Learned Single Judge by his judgment dated 22nd July 2010 dismissed the Special Civil Application No.

3845 of 2010, holding that Collector Anand has not committed any illegality or error in rejecting the application moved by the petitioner for removing the restrictions under section 43 of the Act. Learned Single Judge has also observed that though the land was declared restricted land by the order dated 31st August 1999 in Revision Application No. 501 of 1994 by Gujarat Revenue Tribunal, the present petitioner has purchased the land in the year 2000 by registered sale-deed and therefore such sale is subject to restrictions under Section 43 of the Act.

5. Though powers of Collector and Mamlatdar was also taken into consideration in said Revision Application No. 501 of 1994, it seems that the new purchaser again in the year 2001 filed an application for removing restrictions and when such application was rejected by the Collector vide order dated 25th July 2006, the same issue has been raised again in the present litigation that as per Section 43 (I) of the Act, not Collector but Mamlatdar and ALT only is entitled to adjudicate and decide such application. For such argument the petitioner is relying upon the provisions of Section 70 (a) of the Act.

6. For ready reference both of these provisions are reproduced here;

43. Restriction on transfers of land purchased or sold under this act.

(1) No land or any interest therein purchased by a tenant under section 17B,32,32F,32-I, or sold to any person under section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine ; and no such land or any interest, therein shall be partitioned without the previous sanction of the Collector. To sub-sec. (1), the following provisos shall be added, namely:-

“ Provided that no previous sanction of the Collector shall be required, if the partition of the land is among the members of the family who have direct blood relation or among the legal heirs of the tenant:

“ Provided further that the partition of the land as aforesaid shall not be valid if it is made in contravention of the provisions of any other law for the time being in force.:

“ Provided also that such members of the family or the legal heirs shall-hold the land, after the partition, on the same terms, conditions and restrictions as were applicable to suc