Gujarat High Court
Dahyabhai Bhikhabhai Patel vs State Of Gujarat on 8 October, 2004
Author: Jayant Patel
Bench: Jayant Patel
JUDGMENT Jayant Patel, J.
1. Rule. Mr. Gori, Ld. AGP waives service of rule on behalf of respondent No. 1 and 4. Mr. Shah appears and waives service of rule on behalf of respondent Nos. 2 and 3. With the consent of learned advocates for parties matter is taken up for final hearing today.
2. Upon hearing the learned advocates for the parties, it appears that there is no dispute on the point that the Entry No. 6540, dated 20.8.1987 was certified on the basis of family settlement. However, after a period of about 15 years the proceedings are initiated for cancellation of the entry on the ground that such transfer by way of family settlement is in contravention of the provisions of Section 43 and 84(C) of Bombay Tenancy and Agricultural Lands Act( hereinafter referred to as "the Act"). The authorities have found that there was breach of section 43 and 84(C) of the Act and therefore cancelled the certification of the entry and the proceedings are also ordered to be initiated under the Act. There is no dispute on the point that the lower authorities were exercising powers under Bombay Land Revenue Code and the alleged so called breach is committed in connection with the said entry under the provisions of the Act and therefore in view of the reasons recorded by this court on 28.9.04 in SCA No. 12547/04(Jayantilal Jethalal Soni v. State of Gujarat) the entry deserves to be continued with the clarification that the same is, rima facie, in breach of provisions of sections 43 and 84(C) of the Act and the certification shall be subject to the finalisation of the proceedings by the competent authority under the Act.
3. It further appears that the Mamalatdar has also initiated proceedings under section 84(C) of the Act and the petitioner has to file additional reply. Therefore, the petitioner may file reply to the proceedings under section 84(C) of the Act which are initiated by the Mamalatdar and while filing the reply and while raising defence to the show cause notice, the petitioner may also contend the grounds which may be available under law. Since the proceedings under section 84(C) are at the stage of show cause notice, same is not required to be interferred with at this stage leaving the contentions of both sides open on the said aspects.
4. In view of the aforesaid, petition deserves to be allowed partly by modifying the orders passed by the authorities below to the extent that the Entry No. 6540, dated 20.8.87 shall continue to remain in revenue record with the clarification that the Mamalatdar, Olpad has initiated proceedings under section 84(C) of the Act and certification is subject to the finalisation of proceedings by the competent authority under the Act.
So far as challenge to the show cause notice under section 84(C) of the Act is concerned, petition is premature and said challenge therefore is not required to be entertained at this stage.
5. Petition is allowed to aforesaid extent. Rule is made absolute accordingly. Considering the facts and circumstances, there shall be no costs.