AHMEDBHAI ABDULGANI MEMON Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this group of 13 petitions the petitioners have challenged the constitutional validity of secs. 73A and 79A of the Bombay Land Revenue Code 1879 The petitioners are persons who have either by purchase or by conditional sale or by a transaction peculiar in the tract in which these transactions have taken place described as Valatdan have got certain lands transferred to them and the transferor in each case except in one petition to be presently referred to was a member belonging to scheduled tribe and the lands in dispute being situate in the area originally forming part of Gadhboria State and merged in Nasvadi taluka of Baroda District. The Government of Gujarat by its Notification No. LND 3916-41509-G dated 4th April 1961 issued in exercise of the powers conferred upon it under sec. 73A of the Bombay Land Revenue Code 1879 declared that the provisions of the said sec. 73A shall be applicable to all those villages in the scheduled areas of the State of Gujarat in which survey settlement under the Bombay Land Revenue Code has not been introduced and to which the provisions of the said sec. 73A have not been made applicable. The Government also by the said notification exempted from the operation of the said sec. 73A all persons not being members of scheduled tribes holding lands in the villages to which the said sec. 73A is declared to be applicable by the said notification. The cumulative effect of the notification would be that the occupancy of land held by the members belonging to scheduled tribes and situate within the area to which the notification was applied could not be transferred without the previous sanction of the Collector as provided for in sec. 73A of the Bombay Land Revenue Code. Between the years 1963 and 1968 the petitioners got transferred to themselves by the aforesaid three modes of transfer different pieces and parcels of land situated in that area and in which the transferors were the members of scheduled tribe. Somewhere in the year 1969-70 the authorities of the Revenue Department took notice of these unlawful transfers and proceeded to serve notices upon the transferees calling upon them to show cause why the transfers which were in contravention of sec. 73A should not be declared null and void and consequential orders be made. The petitioners who are transferees of occupancy of land have challenged the notice issued by the Assistant Collector and in some other cases the final order made by the Assistant Collector declaring the transfer of occupancy in favour of the petitioners null and void and restoring the land to the original transferors.

(2.) In Special Civil Application No. 1367 of 1970 there are in all 49 petitioners who are transferors of occupancy of land and the land in the case of each petitioner is situated in Sagbara taluka of Broach District. Sagbara Taluka is in the scheduled area to which notification under sec. 73A has been made applicable and the transfer in each case would therefore be null and void as it was made without obtaining prior sanction of the Collector. The petitioners apprehended that the authorities under the Bombay Land Revenue Code were about to take action declaring the transfer of occupancy null and void in each case and therefore they have approached this Court with a prayer for declaring sec. 73A ultra vires Articles 14 19 and 245 of the Constitution of India.

(3.) In the petitions the validity of impugned notices and orders were challenged on diverse grounds but at the hearing of the petitions Mr. S. B. Majmudar learned advocate who appeared in 11 petitions out of this group of 13 petitions and Mr. C. K. Patel learned advocate who appeared in Special Civil Application No. 790 of 1970 formulated the following propositions for our consideration:-