Laxmiben vs Khatariya Magriya Legal Heir of Late Magriya Khatiya and 1 Another

Rajesh H. Shukla, J.—The present petition has been filed by the petitioner under Article 227 of the Constitution of India as well as under the provisions of the Land Revenue Code and the Rules made thereunder for the prayers inter alia that the order passed by the Deputy Collector dated 30.09.1977 at Annexure-A, order passed by the Collector dated 01.03.1978 at Annexure-B and the order passed by the State Government dated 08.09.1999 at Annexure-C may be quashed and set aside on the grounds stated in the petition. Heard learned counsel, Shri L.R. Pathan for the petitioner, learned counsel, Shri Joy Mathew for the respondent No. 1 and learned AGP Shri Bharat Vyas for the respondent No. 2.

Learned counsel, Shri Pathan referred to the papers and submitted that the petitioner is Vasava by caste and the land was purchased by sale, for which, entry was mutated in the revenue record on 06.08.1958, however, suo motu inquiry has been initiated at much belated stage in exercise of power u/s 73AA of the Act, which has led to the present proceedings and the petition. Learned counsel, Shri Pathan therefore submitted that the powers have to be exercised within reasonable period and exercise of such power beyond reasonable period cannot be accepted and things which have settled may not be unsettled. In support of his submission, he referred to and relied upon the judgment of the Hon''ble Division Bench of this High Court in case of Chandulal Gordhandas Ranodriya and Others Vs. State of Gujarat and Others,

Learned counsel, Shri Joy Mathew for the respondent No. 1 referred to the affidavit-in-reply including the details and submitted that the original tribal owner had made efforts to get the land back in light of the Government policy but could not succeed and, therefore, appropriate orders may be passed. He submitted that the notification and circular of the Government as referred to by learned AGP are held as valid by the courts including this High Court and the Hon''ble Supreme Court and, therefore, as the transaction is void, the present petition may not be entertained. He submitted that there was no sale inasmuch as stated to be only oral. He submitted that the amount was borrowed leading to this transaction and, therefore, the present petition may not be entertained.

Learned AGP Shri Vyas for the respondent No. 2 referred to the affidavit-in-reply and submitted that as stated, since the transfer of the land was by oral transaction and also contrary to the policy of the Government, the said land which has been allotted to scheduled tribe community may not be permitted to be transferred without permission. He submitted that the notification has also been issued on 04.04.1961 prohibiting such transfer of land belonging to scheduled tribe community to non scheduled tribe. He therefore submitted that therefore since the transaction was void, ab initio and illegal, suo-motu inquiry/proceedings were initiated u/s 73A of the Act and, therefore, it cannot be said that the order is improper or without jurisdiction.

In view of these rival submissions, it is required to be considered whether the present petition can be entertained or not.

As rightly submitted by learned counsel, Shri Pathan, there has to be justification for exercise of powers within a reasonable period when the statute provides for the procedure to be followed within reasonable period. If the statute does not provide for specific period, still such power could be exercised within reasonable period. As discussed at length in judicial pronouncement including the judgment of the Hon''ble Division Bench in case of Chandulal Gordhandas Ranodriya (supra). Therefore the moot question is what could be said to be a "reasonable period" with reference to Law Lexical as well as earlier judgment. However, the period of 18 years cannot be said to be a reasonable period and only on that count as observed in this judgment, things which have been settled cannot be permitted to be unsettled in purported exercise of power at any time. Further assuming that there is prohibition for transfer of land allotted to scheduled tribe community to non scheduled tribe community in light of the Government policy as per the Resolution of 04.04.1961, it has been held to be invalid. However if such policy is there and there is resolution of the Government, it is incumbent upon the authority to exercise such power within reasonable period when the entry was mutated much earlier. The submission made by learned counsel, Shri Mathew about the transaction that it was only for borrowing and for the not sale, the transaction took place and, therefore, there was no sale, is also misconceived and it is too late now to accept any such contention. Admittedly, after the entry was mutated, the respondents or predecessor in title had never complained nor raised any objection before mutating the entry before any authority throughout these years and the respondents herein have not raised any such objection except taking such contention in the present petition. Therefore, considering the observations made by the Hon''ble Apex Court as well as the Hon''ble Division Bench of this High Court in case of Chandulal Gordhandas Ranodriya (supra), the present petition deserves to be allowed. In the circumstances, the present petition stands allowed in terms of Para No. 10a. The impugned orders at Annexures-A, B & C are hereby quashed and set aside. Rule is made absolute. No order as to costs.