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The Indian Penal Code
Article 226 in The Constitution Of India 1949
The Revenue Recovery Act, 1890
Section 213 in The Indian Penal Code
Section 73 in The Indian Penal Code

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Gujarat High Court
Bhil Ambalal Bhanaji vs State Of Gujarat And Anr. on 18 June, 1996
Equivalent citations: (1998) 1 GLR 172
Author: A Divecha
Bench: A Divecha

JUDGMENT

A.N. Divecha, J.

1. The order passed by the Collector of Mehsana (respondent No. 2 herein) on 22nd February 1996, rejecting the petitioner's application for selling certain parcels of land, bearing Survey Nos. 34/1, 34/2, 35/1 and 35/2 situated at Patan ("The Disputed Lands" for convenience) to one Kuberbhai Umedbhai Patel is under challenge in this petition under Article 226 of the Constitution of India.

2. The facts giving rise to this petition move in a narrow compass. The petitioner is a tribal for the purposes of Section 73 AA of the Bombay Land Revenue Code ("The Code" for brief). He is in occupation and possession of the disputed lands. They are agricultural lands. It is the case of the petitioner that he was unable to cultivate them in view of his old age and debilities. He, therefore, applied to respondent No. 2 on 11th December 1991 for permission to sell the disputed lands to one Kuberbhai Umedbhai Patel ("The Proposed Purchaser", for convenience). A copy of his application is at Annexure "A" to this petition. By his order passed on 13th October, 1992, respondent No. 2 rejected it. Its copy is at Annexure "E" to this petition. The petitioner carried the matter in revision before the State Government (respondent No. 1 herein), presumably under Section 211 of the Code. By the order passed by and on behalf of respondent No. 1 on 19th April 1993, the petitioner's revisional application came to be rejected. Its copy is at Annexure "F" to this petition. It appears that the petitioner again applied to the Collector for permission to sell the disputed lands to the proposed purchaser. By the order passed by respondent No. 2 on 4th February 1995, that application was again rejected. The petitioner thereupon moved this Court by way of a writ petition under Article 226 of the Constitution of India. It came to be registered as Special Civil Application No. 1398 of 1995. It may be mentioned at this stage that the petitioner's application for permission to sell the disputed lands was rejected on the ground that the proposed purchaser was a non-tribal and, according to the authorities, there is no provision in the Code for transfer of a land belonging to a tribal to a non-tribal. The aforesaid writ petition came up for hearing before this Court on 5th September 1995. By its decision (Coram: S.M. Soni, J.) rendered on that day. this Court accepted the petition and the orders al Annexures "E", and "F" to this petition were quashed and set aside and the matter was remanded to respondent No. 2 for deciding the fate of the petitioner's application in the light of Section 73AA(2) of the Code. A copy of the aforesaid decision of this Court is at Annexure "G" to this petition. It appears that (hereafter the matter was taken up for hearing afresh by respondent No. 2 and, by his order passed on 22nd February 1996, the petitioner's application came to be rejected again on the ground that there exists no provision in the Code for transfer of a land held by a tribal to a non-tribal. Its copy is at Annexure "H" to this petition. The aggrieved petitioner has thereupon again approached this Court by means of this petition under Article 226 of the Constitution of India for questioning the correctness of the order at Annexure "H" to this petition.

3. It is strange and surprising that respondent No. 2 has not considered the provisions contained in Section 73AA(2) of the Code despite the direction contained in the aforesaid decision of this Court at Annexure "G" to this petition. Respondent No. 2 could not have ignored the specific reference made to the aforesaid statutory provision by this Court in its aforesaid decision. To ignore conveniently the direction contained in a judgment of this Court would certainly tantamount to its wilful defiance and would amount to contempt of this Court.

4. Even otherwise, the impugned order at Annexure "A" to this petition suffers from the vice of non-application of mind on the part of respondent No. 2. It would be quite proper at this stage to look at the relevant provisions contained in Section 73AA of the Code. They read:

73 AA. Restriction on transfer of occupancies of tribals to tribals or non-tribals: (1) Notwithstanding anything contained in Section 73, an occupancy of a person belonging to any of the Scheduled Tribes (hereafter in this section and in Section 73AB referred to as "the tribal") shall not be transferred to any person without the previous sanction of the Collector.

(2) The previous sanction of the Collector under Sub-section (1) may be given in such circumstances and subject to such conditions as may be prescribed.

... ... ...

From a bare perusal of the aforesaid statutory provisions, it becomes clear that a tribal can sell his lands to any person, including a non-tribal, subject to the previous sanction of the Collector. Sub-section (2) empowers the Collector to give the previous. sanction in certain circumstances and on certain conditions as prescribed.

5. In this connection reference deserves to be made to Rule 57L of the Gujarat Land Revenue Rules, 1972 ("The Rules" for brief) framed under Sections 213 and 214 of the Code. Under Sub-rule (3) thereof, the Collector is empowered to grant sanction for transfer of an occupancy belonging to a tribal to a non-tribal on fulfilment of the conditions laid down therein.

6. In view of the aforesaid statutory provisions contained in Section 73AA of the Code read with Rule 57L of the Rules, there is no escape from the conclusion that the Collector may give his previous sanction for transfer of an occupancy held by a tribal in favour of a non-tribal. The impugned order of the Collector at Annexure "H" to this petition is based on the conclusion that there is no provision in the Code for transfer of an occupancy of a tribal to a non-tribal. That conclusion is certainly out of the non-application of mind on the part of its author in view of the aforesaid statutory provisions contained in Section 73AA of the Code read with Rule 57L of the Rules.

7. It transpires from the impugned order at Annexure "H" to this petition that respondent No. 2 has decided the case on the basis of one communication of 1st February 1996 from the State Government to the effect that there is no provision in the Code for transfer of a tribal occupancy to a non-tribal. Section 73AA(2) empowers the Collector to give his previous sanction for such transfer in the circumstances and conditions as may be prescribed. It means that the decision to give the previous sanction should be that of the authority named in the aforesaid statutory provision It is needless to say that the authority named in that statutory provision is the Collector of the concerned area. It should be decision in the light of the circumstances and the conditions prescribed by the Rules. As pointed out hereinabove, Rule 57L(3) of the Rules prescribes conditions in that regard. The concerned Collector has to decide the fate of an application by a tribal for transfer of his occupancy in favour of a tribal or a non-trial in the light of Rule 57L of the Rules. In any case, it should be his decision and not any one else's decision. If, instead of deciding himself, he reproduces the decision of the higher authority, it would amount to abdication of function and acting under its dictation. In that case, the decision will not be of his own, but will be of someone else's. He becomes merely an agent for communication of someone else's decision (may be that someone may be his superior authority). A decision based on abdication of function and under dictation of the superior authority is no decision in the eyes of law and it cannot be sustained in law. This is a well-settled principle of administrative law.

8. In this connection, reference deserves to be made to the binding ruling of the Supreme Court in the case of Orient Paper Mills v. Union of India . In that case, the Deputy Superintendent was empowered to levy excise under the relevant statute. Instead of deciding the matter independently, he ordered levy of excise in accordance with the directions issued by the Collector. That action was challenged before the Supreme Court. The Supreme Court accepted that challenge and set aside the order passed by the Deputy Superintendent on the ground that such assessment stood vitiated as it was not the assessment made by the authority empowered to do so, but it was someone else's assessment. The aforesaid Supreme Court ruling is binding to this Court. It is on all fours applicable in this case. In the present case, the Collector did not decide the case. It is not the case of the Collector that he was required to refer the matter to the State Government in view of the relevant provisions contained in Rule 57L(3) of the Rules. He has merely acted on the instructions of the State Government. The impugned order at Annexure "H" to this petition is not an outcome of his discretionary power, but he has acted under dictation of the State Government. In that view of the matter, the impugned order at Annexure "H" to this petition cannot be sustained in law in view of the aforesaid binding ruling of the Supreme Court.

9. Learned Assistant Government Pleader Shri Sompura on instructions from one official present today from the office of respondent No.2 has stated that respondent No. 1 State Government has issued instructions to all Collectors not to accord any previous sanction for transfer of an occupancy held by a tribal to a non-tribal as there is no such provision in the Code. 1 think no such instructions could have been issued by the State Government, and if such instructions are issued, they have to be ignored as ultra vires Sections 73AA(1) and (2) of the Code. The Legislature. in us wisdom, has conferred discretion on the Collector and such discretion cannot be circumscribed by any other authority in any manner. The only limitation on exercise of such discretion is that it has to be exercised judiciously. Deciding the fate of an application for the previous sanction in consonance with Sections 73AA(1) and (2) of the Code in the light of Rule 57L of the Rules would amount to judicious exercise of his discretion on the part of the concerned Collector. Respondent No. 2 has not chosen to exercise his judicious discretion in the matter and his impugned order at Annexure "H" to this petition cannot, therefore, be sustained in law also on this ground.

10. As indicated earlier, respondent No. 2 has defied the direction given by this Court in his decision at Annexure "G" to this petition. Ordinarily, I might have thought it fit to issue a notice of contempt proceedings to respondent No. 2. However, in view of the aforesaid statement made by learned Assistant Government Pleaser Shri Sompura for the respondents on the basis of instructions from the official present today from the office of respondent No. 2 that the State Government has issued some administrative instructions not to permit transfer of any tribal occupancy in favour of any non-tribal and since respondent No. 2 would like to obey the Government Instructions, I have chosen not to issue any contempt notice to respondent No. 2. It would, however, be advisable and desirable on his part to have made a reference in his impugned order at Annexure "H" to this petition why he could not consider the provisions of Section 73AA(2) of the Code as mentioned in the aforesaid decision of the High Court at Annexure "G" to this petition in his impugned order at Annexure "H" to this petition.

11. In view of my aforesaid discussion, I am of the opinion that the impugned order at Annexure "H" to this petition cannot be sustained in law. It has to be quashed and set aside. The matter deserves to be remanded to respondent No. 2 for restoration of the proceedings to file and for his fresh decision according to law in the light of this judgment of mine.

12. In the result, this petition is accepted. The order passed by the Collector of Mehsana (respondent No. 2 herein) on 22nd February 1996 at Annexure "H" to this petition is quashed and set aside. The matter is remanded to respondent No. 2 for restoration of the proceeding to file and for his fresh decision according to law in the light of this judgment of mine.

13. Since the original application was made as early as on 11th December 1991 at Annexure "A" to this petition, respondent No. 2 is directed to decide its fate as expeditiously as possible, but in any case latest by 30th September 1996. It would be open to the petitioner to produce a certified copy of this judgment before respondent No. 2 for expeditious disposal of the matter. Rule is accordingly made absolute to the aforesaid extent with no order as to costs.