Searching Case Laws & Precedent on Legal Query.....!
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Searching Case Laws & Precedent on Legal Query.....!
Scanned Judgements…!
Enactment of Section 73AA - Section 73AA was enacted by the Gujarat Act 37 of 1980, with its provisions coming into force on 01.02.1981 ["AGRICULTURAL PRODUCE MARKET COMMITTEE vs JITABHAI SONIABHAI TADVI - Gujarat"], ["MINABEN GIRISHCHANDRA vs STATE OF GUJARAT - Gujarat"], ["DECEASED GULABBHAI GHELABHAI BHAVASAR THROUGH HIS HEIR AND LEGAL REPRESENTATIVE vs STATE OF GUJARAT - Gujarat"].
Main Points and Insights:
Courts have consistently held that if a transfer occurred before 01.02.1981, it is not in violation of Section 73AA, and subsequent revenue record entries reflecting restrictions are not retroactive ["MINABEN GIRISHCHANDRA vs STATE OF GUJARAT - Gujarat"], ["PATEL DOLABHAI PANABHAI vs STATE OF GUJARAT(DECEASED) - Gujarat"].
Analysis and Conclusion:
In the realm of Gujarat's land revenue laws, one common query arises: when 73AA came in existence? This question is particularly relevant for landowners, especially those dealing with tribal occupancies, as Section 73AA imposes strict restrictions on land transfers. Understanding its origin and effective date can prevent costly legal disputes over property transactions.
This blog post delves into the enactment, enforcement, and judicial interpretations of Section 73AA under the Bombay Land Revenue Code, 1879 (as applicable in Gujarat). We'll explore how it affects transfers, backed by key court rulings. Note: This is general information based on legal precedents and not specific legal advice—consult a qualified lawyer for your situation.
Section 73AA targets protections for tribal landholders by restricting transfers of tribal occupancies to other tribals or non-tribals without prior Collector sanction. Introduced to safeguard tribal interests, it states: Section 73AA was enacted by the Gujarat Act 37 of 1980. PUNJABHAI JETHABHAI PATEL VS STATE OF GUJARAT - 2005 0 Supreme(Guj) 594 This provision applies specifically to post-enactment transfers, ensuring prospective operation only. VINODCHANDRA SAKARLAL KAPADIA VS STATE OF GUJARAT - 2020 3 Supreme 515
Key restrictions include:- No transfer without Collector's previous permission.- Remedies for contraventions under sub-section (4), with time limits.- Differentiation from earlier Section 73A, which had different applicability.
Section 73AA emerged through the Bombay Land Revenue Code (Gujarat Second Amendment) Act, 1980 (Gujarat Act 37 of 1980). This amendment addressed vulnerabilities in tribal land holdings by imposing new safeguards. As noted, Section 73AA was introduced as part of the Bombay Land Revenue Code (Gujarat Second Amendment) Act, 1980 (Gujarat 37 of 1980), imposing restrictions on transfers of tribal occupancies without Collector sanction. VINODCHANDRA SAKARLAL KAPADIA VS STATE OF GUJARAT - 2020 3 Supreme 515
The Act was designed to plug gaps in prior laws like Section 73A, focusing on transfers at any time after the date of commencement. VINODCHANDRA SAKARLAL KAPADIA VS STATE OF GUJARAT - 2020 3 Supreme 515Batukbhai Gopalbhai Patel VS Ravjibhai Bhangad Ukabhai Rathod - 2021 0 Supreme(Guj) 326 This legislative move reflected Gujarat's commitment to tribal welfare amid rising land disputes.
Courts have unanimously fixed 1 February 1981 as the date Section 73AA came into force. Judicial rulings emphasize: Section 73aa putting restriction on transfer of occupancies of tribal to tribals or non-tribals was brought into force for the first time on 1-2-1981 by Act No. 37 of 1980. VASANJIBHAI GOKALBHAI PATEL VS DEPUTY COLLECTOR,songadh - 1998 0 Supreme(Guj) 207 Similarly, The provision of Section 73-AA... of the Bombay Land Revenue Code, 1980 (Gujarat Second Amendment) Act, 1980 (Gujarat 37 of 1980) came into force on 1/2/81. Minaben Girishchandra VS State Of Gujarat - 2022 0 Supreme(Guj) 451
This date is critical because the section operates prospectively. Transfers before 1 February 1981 fall outside its ambit. For instance, a 1976 transfer was deemed non-contravening: 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 73AA. VINODCHANDRA SAKARLAL KAPADIA VS STATE OF GUJARAT - 2020 3 Supreme 515Batukbhai Gopalbhai Patel VS Ravjibhai Bhangad Ukabhai Rathod - 2021 0 Supreme(Guj) 326
Additional sources reinforce this. In one case, Gandhi submitted that the provisions of section 73AA of the Gujarat Land revenue Code, 1879 came into force on 01.02.1981, leading to findings that pre-1981 sales were unaffected. Padmaben D/o Babubhai Govindbhai VS Dhirubhai Fatehsinghbhai Gamit - 2024 Supreme(Guj) 136
Section 73AA(1) binds only transfers on or after 1 February 1981. Pre-existing deals, like a 1978 agreement to sell, were upheld as completing before restrictions: transfers before this date are explicitly exempt. VASANJIBHAI GOKALBHAI PATEL VS DEPUTY COLLECTOR,songadh - 1998 0 Supreme(Guj) 207
Sub-section (4) outlines enforcement:- For post-commencement contraventions, proceedings can start anytime within three years or later on application.- Pre-1981 breaches may invoke Section 73A, but only if notifications under that section preceded survey settlements—often not the case. VINODCHANDRA SAKARLAL KAPADIA VS STATE OF GUJARAT - 2020 3 Supreme 515Batukbhai Gopalbhai Patel VS Ravjibhai Bhangad Ukabhai Rathod - 2021 0 Supreme(Guj) 326
Thus it is clear that the said provision applies to contravention of sub-section (1) of 73AA any time on or after the date of commencement of the Bombay Land Revenue (Gujarat Second Amendment), Act, 1980. Batukbhai Gopalbhai Patel VS Ravjibhai Bhangad Ukabhai Rathod - 2021 0 Supreme(Guj) 326
Other judgments echo this non-retrospectivity: The retrospective application of Section 73(AA) of the Code is not valid for transactions predating its amendment. VISHANJI SHIVLAL MISTRY JETHVA vs STATE OF GUJARAT - 2021 Supreme(Online)(Guj) 6670 In a property dispute involving a 1978 sale deed, courts rejected Section 73AA challenges, affirming validity. Padmaben D/o Babubhai Govindbhai VS Dhirubhai Fatehsinghbhai Gamit - 2024 Supreme(Guj) 136
Gujarat High Court rulings provide clarity:
These cases illustrate: Verify transaction dates against 1 February 1981. VASANJIBHAI GOKALBHAI PATEL VS DEPUTY COLLECTOR,songadh - 1998 0 Supreme(Guj) 207
While the commencement date is fixed, nuances exist:- Section 73AA(4)(b): Limited action on pre-1981 transfers under prior laws, within three years of amendment/transfer.- Non-Agricultural Land: May not always trigger restrictions. Somabhai Sharubhai Gamit VS State of Gujarat - 2018 Supreme(Guj) 1739- Bona Fide Purchasers: Protected if in possession pre-challenge.
Recommendations:- Check revenue records (Village Form 7/12) for mutation dates.- Review Collector permissions and survey history under Sections 73A/73AA.- Challenge delayed proceedings via revision under Section 211.- For easements or agreements pre-1981, argue no 'transfer of occupancy.' Batukbhai Gopalbhai Patel VS Ravjibhai Bhangad Ukabhai Rathod
Property disputes in Gujarat often hinge on this timeline. Staying informed can safeguard your rights. For personalized guidance, reach out to a local land revenue expert.
References:1. VINODCHANDRA SAKARLAL KAPADIA VS STATE OF GUJARAT - 2020 3 Supreme 515 - Enactment and prospective application.2. VASANJIBHAI GOKALBHAI PATEL VS DEPUTY COLLECTOR,songadh - 1998 0 Supreme(Guj) 207 - Enforcement date and 1978 exemption.3. Batukbhai Gopalbhai Patel VS Ravjibhai Bhangad Ukabhai Rathod - 2021 0 Supreme(Guj) 326 - Non-applicability to 1976 transfers.4. Minaben Girishchandra VS State Of Gujarat - 2022 0 Supreme(Guj) 451 - Confirms 1/2/81 force date.5. PUNJABHAI JETHABHAI PATEL VS STATE OF GUJARAT - 2005 0 Supreme(Guj) 594 - Enactment details.6. Padmaben D/o Babubhai Govindbhai VS Dhirubhai Fatehsinghbhai Gamit - 2024 Supreme(Guj) 136 - 01.02.1981 confirmation.7. KANUBHAI VIRABHAI HEIRS OF DECVIRABHAI RAPABHAI BARIYA vs STATE OF GUJARAT - No pre-existence.8. VISHANJI SHIVLAL MISTRY JETHVA vs STATE OF GUJARAT - 2021 Supreme(Online)(Guj) 6670 - Non-retrospectivity.9. Batukbhai Gopalbhai Patel VS Ravjibhai Bhangad Ukabhai Rathod - Pre-73AA usage.10. Somabhai Sharubhai Gamit VS State of Gujarat - 2018 Supreme(Guj) 1739 - Procedural requirements.
#Section73AA, #GujaratLandLaw, #TribalLandRights
It can remain effective and in existence till it is invalidated and set aside. ... He, therefore, submitted that the power could be exercised as provided in the Code when it came to the notice and therefore, as provided in the provisions of Section 135 of the Code, when the transaction has taken place is in breach of Section 73AA ... Learned advocate Shri Gandhi referred to Section 73AA of the Code and submitted that Section 73AA refers “Restriction on transfer of occupancies of the tribal to tribal o....
Section 73AA was enacted by the Gujarat Act 37 of 1980. ... The short point, which arose in the present case is with regard to the applicability of the provisions of Section 73A of the Code in purported exercise of which the order came to be passed. ... Therefore, one cannot resort to the provisions which was not in existence at the relevant time when the transaction took place. ... of the provisions of section 73AA of the Code is concerned, sub-section (1) of section 73AA places a restriction on trans....
Considering the factual aspects of this case, when amended provisions came into existence, possession of the land was with Rustam Suleman Patel on the basis of the Agreement to Sell. ... Admittedly, provisions of Sections 73AA, 73AB and 73AC came to be added in the Bombay Land Revenue Code with effect from 1.2.1981. Thus, on the date of execution of Agreement to Sell with possession, there was no such restriction of transferring the land in favour of a non-tribal from tribal. ... It is also contended that only in the yea....
Considering the factual aspects of this case, when amended provisions came into existence, possession of the land was with Rustam Suleman Patel on the basis of the Agreement to Sell. ... Admittedly, provisions of Sections 73AA, 73AB and 73AC came to be added in the Bombay Land Revenue Code with effect from 1.2.1981. Thus, on the date of execution of Agreement to Sell with possession, there was no such restriction of transferring the land in favour of a non-tribal from tribal. ... It is also contended that only in the yea....
Entry No. 384 was mutated, there was no provision in existence ... The Collector came to the conclusion that Entry No. ... such as 73AA, which may require prior permission of the competent authority. ... In between, Entry No. 275 was mutated Revisional Authority found it to be in breach of section 73AA
Gandhi submitted that the provisions of section 73AA of the Gujarat Land revenue Code, 1879 came into force on 01.02.1981, and, therefore the Deputy Collector by order dated 25.07.1995 had considered this development of law, and had found that the sale was not hit by the provision of section 73AA, and ... The plea raised, was not considered by the trial Court and the issue was answered in negative; however, the appellate Court, having referred to the proceeding before the Deputy Collector and considering the position of law that section #....
Jadeja, that the transfer took place before sec. 73aa came into force and therefore, the proceedings initiated against the petitioner are required to be set aside as on the date there was no restriction as mentioned in Sec. 73aa. As there was transfer of possession, Mr. ... Jadeja, learned Advocate submitted that, the proceedings are initiated without considering that Sec. 73aa of the Bombay Land Revenue Code is inapplicable as transfer took place much before the said provision came into force. ... Jade....
Section 73AA was enacted by the Gujarat Act 37 of 1980. ... 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. ... Insofar as the applicability of the provisions of section 73AA of the Code is concerned, sub-section (1) of section 73AA places a restriction on transfers of occupancies from tribals to tribals and nontribals without the previous permission of the Collector. .....
As existence of both a dominant tenement and servient tenement is essential to the creation and existence of an easement it is difficult to conceive of a position where a person can claim easement by prescription when he owns both the tenements. ... The land owners of block nos.68, 238, 236, 237 and 253 have executed intersay agreement of easementary rights without any consideration for using the road from Olpad-Sayan main road passing through the said blocks which was being used as roads since before Section 73AA came ....
As existence of both a dominant tenement and servient tenement is essential to the creation and existence of an easement it is difficult to conceive of a position where a person can claim easement by prescription when he owns both the tenements. ... The land owners of block Nos.68, 238, 236, 237 and 253 have executed inter-say agreement of easementary rights without any consideration for using the road from Olpad-Sayan main road passing through the said blocks which was being used as roads since before Section 73AA came#HL_EN....
Restriction on transfer of occupancies of tribals to tribals or non-tribals. It is further revealed that the Collector has not followed the procedure contemplated under subsection (4) of section 73AA of the Code. At this stage, we would like to refer to provisions contained in section 73AA(4) of the Code, which reads as under: “Section 73AA. (1) xxx xxx xxx (2) xxx xxx xxx (3) xxx xxx xxx (4) Where a tribal- (a) in contravention of subsection (1) of this section, or of subsection (1) of section 73A or of any other law for the time being in force, transfers his occupancy to ....
It is the own case of the plaintiffs that RFPL constructed the RA in the year 1962-63; on 07.02.1973, RFPL applied for sanction plan to raise the construction in the remaining portion of the said plot; and the sanction was revalidated till 02.08.1975. The question arises when the said property came in existence. In the meantime, on 07.12.1973 i.e. after applying for sanction, RFPL sold the said plot to SRA who in turn sold the said plot to the plaintiffs on 11.12.1980.
The first respondent had issued G.O.Ms.No.86, dated 26.02.2001 and introduced a tender system. As such, each lease is liable to be renewed for twenty years. The said Government Order was set aside by this Court, which has become final. When the said Rule came into force, the petitioner's lease was in existence.
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