(Per : HONOURABLE MR.JUSTICE P.B.MAJMUDAR) By way of this appeal, the appellants have challenged the order passed by the learned Single Judge in Special Civil Application No.2917 of 2012. By the impugned order the learned Single Judge dismissed the writ petition filed by the appellants. The petition was filed challenging the order passed by the Deputy Collector by which the Deputy Collector, Bardoli has held that since the appellants have purchased the land of Adivasi without the permission of the Collector and since the transfer of the land by tribal to non-tribal is prohibited under the Act, the said transaction is held to be illegal and an order was passed that the said land should be mutated in the name of State Government in the revenue record. It is held that separate proceedings are to be taken up for breach of Section 73AA Land Revenue Code for the purpose of penalty, etc. It is not in dispute that the appellants are non-tribal persons.
Initially the appellants agreed to purchase the land of tribal and a Banakhat was executed between the tribal and the appellants on 27th June, 1979 on Rs.10/- stamp paper, which subsequently culminated into Sale Deed in the year 1994. Initially the Collector initiated proceedings in the year 1994 for breach of Section 73AA of the Land Revenue Code on the ground that the land is transferred from tribal to non-tribal and there is complete prohibition in the Act regarding the said transfer. Subsequently, how the said notice was withdrawn by the Collector on the ground that transaction was prior to incorporation of Section 73AA in the statute book. The Secretary, Revenue Department took the matter into suo moto Revision as according to the Secretary the order of the Collector is bad in law. It is not in dispute that as back as on 21st June, 2002 the Principal Secretary, Revenue Department, State of Gujarat by giving detail reason came to the conclusion that the land in question is transferred from tribal to non-tribal, which is totally prohibited under the Act the appellant has tried to take advantage of the poverty of the scheduled tribe person and the transaction is, therefore, heat by Section 73AA of the Act. A specific finding was given that the transaction is bad in law and the object of the Act is to prevent the land of tribal in favour of non-tribal so that nobody can try to induce tribals by giving petty amount for purchasing their land. The Principal Secretary accordingly set aside the order of the Deputy Collector, Vyara, Surat dated 30th June, 1994 and it is held that there is breach of Section 73AA of the Act, for which the Deputy Collector was directed to take appropriate proceedings in this behalf.
It is required to be noted that the order passed by the Principal Secretary was of the year 2002. The said order was not challenged further by the appellants and the said order has become final. On the basis of the aforesaid direction of the Principal Secretary, the Deputy Collector initially initiated proceedings for mutating the land in the revenue record in the name of State Government and passed order that appropriate order of penalty should be initiated. The order of the Deputy Collector dated 27th December, 2011 was challenged by the appellant by way of writ petition before the learned Single Judge. The learned Single Judge dismissed the writ petition by holding that so far second order of the Collector is concerned it is consequential to the first order and the first order passed by the Principal Secretary was not challenged earlier but is challenged after more than 10 years in the writ petition along with the order of the Deputy Collector.
Learned counsel for the appellants Mr.Pandya vehemently submitted that the order of the Deputy Collector is bad in law as it is well settled that government machinery must start functioning without unjust delay. It is submitted by him that even though the order of the Principal Secretary is of the year 2002, the Deputy Collector initiated proceedings after considerable time and the impugned order is passed in the year 2011. It is also submitted by Mr.Pandya that there is no breach of Section 73AA of the Act in the present case and subsequently the land was also converted into Non-Agricultural from Agricultural land. Mr.Pandya has also relied upon certain judgments on the ground of delay and latches.
We have heard Mr.Pandya at length and also gone through the appeal and compilation forming part of the appeal. It is required to be noted that provision of Section 73AA is enacted with a view to see that nobody can exploit scheduled tribe persons by purchasing their land as such persons may not have the same bargaining power. As per the aforesaid restriction in the Act, occupancy of scheduled tribe cannot be transferred to non-tribal person. It is not in dispute that as back as in the year 2002 the Principal Secretary had set aside the transaction by holding that there is breach of Section 73AA of the Act. On the basis of the same, consequential order was required to be passed by the Deputy Collector as once the transaction is cancelled, in the revenue record, appropriate name is required to be mutated of a concerned person or of Authority. It is unfortunate that inspite of the order of the year 2002, the concerned Deputy Collector set tight over the said order for 10 years for the reasons best known to him and the appellants were the beneficiaries of such inaction on the part of the concerned Deputy Collector. Be that as it may, since the order order of the Principal Secretary has attained finality in the year 2002, the consequential order passed by the Deputy Collector in the year 2011 is challenged by the present appellants-petitioners in the writ petition along with the order of the year 2002.
Considering the said factual background, in our view, the learned Single Judge was perfectly justified in holding that the order of the year 2002 could not have been challenged after more than 10 years. Even otherwise, by cogent reasons,the Principal Secretary has held in the year 2002 that the transaction is void as it is in violation of Section 73AA of the Act. The Deputy Collector thereafter passed the consequential order, no doubt after more than 10 years. By the said order a subsequent revenue entry is ordered to be posted in the revenue record, which revenue entry is mainly for fiscal purpose and the said entry was to be posted in view of cancellation of sale transaction on the basis of the order of the Principal Secretary, which was passed in the year 2002. So far as nature of the transaction is concerned, it has been held by the Principal Secretary in the year 2002 that transaction is bad in law and the Sale Deed is ordered to be cancelled. The appellants-petitioners waited for the consequential order for all these years.
Considering the aforesaid factual aspect, in our view, the learned Single Judge was absolutely justified in dismissing the writ petition. We accordingly do not find any substance in the matter and the same stands dismissed accordingly.
(P.B.
Majmudar, J) (Paresh Upadhyay, J) Anup Top