Gujarat High Court
Narsinhbhai vs State on 18 January, 2010
Author: M.R. Shah
Bench: M.R. Shah
Gujarat High Court Case Information System
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SCA/12758/2009 9/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12758 of 2009
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NARSINHBHAI
RATNABHAI - Petitioner(s)
Versus
STATE
OF GUJARAT & 3 - Respondent(s)
=========================================================
Appearance :
MR
SP MAJMUDAR for
Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5, 1.2.6,1.2.7
MRVIMALAPUROHIT for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,
1.2.5, 1.2.6,1.2.7
GOVERNMENT PLEADER for Respondent(s) : 1,
None
for Respondent(s) : 2 - 4, 4.2.1,4.2.2
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 18/01/2010
ORAL
ORDER
By way of this petition under Article 227 of the Constitution of India, petitioners have prayed for an appropriate writ, direction and order quashing and setting aside the impugned order dated 1.4.2008 passed by the Gujarat Revenue Tribunal passed in Revision Application No.TEN.BA 305/1994 dismissing the same and confirming the orders passed by the Mamlatdar & ALT, Gandhinagar dated 31.1.1991 in Tenancy Case No.129 of 1989 as well as the order dated 2.1.1992 passed by the Deputy Collector (Land Reforms) Appeals, Gandhinagar in Tenancy Appeal No.SR/47/91.
The facts leading to the present special civil application in nutshell are as under.
That the petitioners were the owners of the land bearing Survey No.342, ad-measuring Acres 2.30 Gunthas of Village: Adalaj, District:
Gandhinagar. That out of the aforesaid land, the land ad-measuring Acre 0.24 Gunthas was sold to the respondent Nos. 1 to 3 herein by way of registered sale-deed dated 24.9.1981. That as the said sale transaction was in violation of the Bombay Prevention and Fragmentation and Consolidation of Land Act, proceedings were initiated by the Deputy Collector, Gandhinagar vide order dated 14.4.1987. The said transaction was declared as void. It is the case on behalf of the petitioners that Deputy Collector while declaring the aforesaid transaction as void, also directed restoration of the possession of the land in question by evicting the respondents-
purchasers. That being aggrieved and dissatisfied with the aforesaid order dated 14.4.1987 passed by the Deputy Collector, Gandhinagar in declaring the sale transaction as void, respondent Nos. 1 to 3 herein purchasers preferred the appeal / revision application before the Secretary (Appeals), Revenue Department, State of Gujarat being Revision Application No.8 of 1988 and the revisional Authority dismissed the said revision application vide order dated 30th May, 1988. That in the meantime, the Mamlatdar & ALT, Gandhinagar initiated the proceedings under Section 84-C of the Bombay Tenancy and Agricultural Land Act as the sale transaction in favour of the respondent Nos. 1 to 3- purchasers was hit by Section 84-C of the Bombay Tenancy and Agricultural Land Act as the respondent Nos.1 to 3 were non-agriculturist. That the Mamlatdar & ALT vide its order dated 4.9.1986 declared the sale transaction in favour of the respondent Nos. 1 to 3 as in breach of Section 63 of the Bombay Tenancy and Agricultural Land Act and directed vesting of the said land in the State Government without any encumbrances. That being aggrieved and dissatisfied with the order passed by the Mamlatdar & ALT, dated 4.9.1986 under Section 84-C of the Bombay Tenancy and Agricultural Land Act, respondent Nos. 1 to 3 (purchasers) preferred an appeal before the Deputy Collector, Gandhinagar being Tenancy Appeal No.241 of 1986 and the Deputy Collector (Land Reforms) Appeals vide order dated 31.12.1987 dismissed the said appeal. Being aggrieved and dissatisfied with the order passed by the Deputy Collector (Land Reforms) Appeals, Gandhinagar dated 31.12.1987 in Tenancy Case No.241 of 1986, respondent Nos. 1 to 3 herein preferred the revision application before the Gujarat Revenue Tribunal and the Gujarat Revenue Tribunal by impugned judgment and order dated 30th January, 1989 remanded the matter to the Mamlatdar and ALT. Thereafter, on remand, the Mamlatdar & ALT, registered a Case vide Tenancy Case No.129 of 1989 and passed an order dated 31.1.1991 to vest the land in question into State Government if the status-quo to its original position was not restored within 90 days. Being aggrieved and dissatisfied with the order passed by the Mamlatdar & ALT passed in Tenancy Case No.129 of 1989, respondent nos. 1 to 3 purchasers, preferred the appeal being Tenancy Appeal No.SR/47 of 1991 before the Deputy Collector (Land Reforms) Appeals, Gandhinagar and Deputy Collector (Land Reforms) Appeals, Gandhinagar vide order dated 2.1.1992 dismissed the said appeal by confirming the order passed by the Mamlatdar & ALT, dated 31.1.1991. Being aggrieved and dissatisfied with the order passed by the Deputy Collector (Land Reforms) Appeals, Gandhinagar dated 2.1.1992 in Tenancy Case No.SR/47/91, petitioners- Sellers- original land owners preferred the revision application No.TEN.BA.305 of 1994 before the Gujarat Revenue Tribunal who by impugned judgment and order dated 1st April, 2008 dismissed the said revision application and confirming the order passed by the Deputy Collector (Land Reforms) Appeals, Gandhinagar. Being aggrieved and dissatisfied with the judgment and order dated 1.4.2008 passed in Revision Application No.TEN.BA305 of 1994 petitioners- sellers, original land owners, have preferred the present special civil application under Article 227 of the Constitution of India.
Shri S.P. Majmudar, learned advocate appearing on behalf of the petitioners has vehemently submitted that as such, the order passed by the Mamlatdar & ALT under Section 84-C of the Bombay Tenancy and Agricultural Land Act itself was illegal. It is submitted that once the sale transaction in favour of the respondent No.1 to 3 was already declared as void under the provisions of the Bombay Prevention and Fragmentation and Consolidation of Land Act, there was no question of further initiating any proceedings under Section 84-C of the Bombay Tenancy and Agricultural Land Act, as the sale was already declared void. It is further submitted by Shri Majmudar, learned advocate appearing on behalf of the petitioners that even the possession was already with the petitioners- original land owners and the possession of the land in question was not parted with the respondent Nos. 1 to 3 and therefore, the proceedings under Section 84-C could not have been initiated. It is submitted that considering Section 84-C if the status-quo ante prior to the transfer (found to be hit by Section 84-C) is restored within 90 days and the possession is restored, in that case, no order can be passed vesting the land into State Government. It is submitted that in the present case, as the possession was never parted, there was no question of restoring the position prevailing prior to execution of the sale deed and therefore, Mamlatdar & ALT, has erred in vesting the land into State Government by holding that parties have failed to restore the position within 90 days. By making above submissions, it is requested to allow the present special civil application.
Having heard Shri S.P.Majmudar, learned advocate appearing on behalf of the petitioners and learned AGP appearing on behalf of the respondent No.1 and considering the orders passed by Mamlatdar & ALT, Gandhinagar; Deputy Collector (Land Reforms) Appeals. Gandhinagar and Gujarat Revenue Tribunal, at the outset, it is required to be noted that it is the purchasers who challenged the order passed by Mamlatdar & ALT dated 31.1.1991 by which, it was ordered to vest the land in question into State Government if the land in question is not put to its original position within 90 days and the petitioners-sellers did not challenge the same. If the purchasers had handed over the possession to the petitioners on declaration of the sale as void under the provisions of the Fragmentation Act (as sought to be contended on behalf of the petitioners), and/or if the purchasers were not in possession of the land in question, in that case, the purchasers would not have challenged the order passed by the Mamlatdar & ALT under Section 84-C of the Bombay Tenancy and Agricultural Land Act. It is the case on behalf of the petitioners sellers that as the possession of the land in question was never handed over to the purchasers, there was no question of restoration of the possession to the petitioners. However, it is to be noted that in the order passed by the Deputy Collector, Gandhinagar dated 14.7.1987 under the Bombay Prevention and Fragmentation and Consolidation of Land Act, it was specifically directed by the Deputy Collector to restore the possession to the petitioners- sellers within 2 (two) months and the said order has become final. Nothing is on record that thereafter, the possession of the land in question was restored to the petitioners. Even nothing is on record that even the sellers original land owners returned the amount of sale consideration to the purchasers. Under the circumstances, in absence of any evidence on record showing restoring the possession back to the petitioners, when the Mamlatdar & ALT held that parties were not ready to restore the possession, when the order came to be passed under Section 84-C of the Bombay Tenancy and Agricultural Land Act which came to be confirmed by the Gujarat Revenue Tribunal, it cannot be said that the Authorities below have committed an error and/or illegality which calls for interference of this Court in exercise of powers under Article 227 of the Constitution of India.
Now, it is the contentions on behalf of the petitioners that once the sale in favour of the respondent Nos. 1 to 3- purchasers declared void under the provisions of the Fragmentation Act, further proceedings under Section 84-C of the Bombay Tenancy and Agricultural Land Act could not have been initiated. This contention has no substance at all. Both the proceedings, i.e. under the Bombay Prevention and Fragmentation and Consolidation of Land Act and the proceedings under Section 84-C of the Bombay Tenancy and Agricultural Land Act for breach of Section 63 of the Bombay Tenancy and Agricultural Land Act are different and distinct. There are different consequences under the aforesaid proceedings in a proceedings under Section 84-C of the Act of Bombay Tenancy and Agricultural Land Act. If the status-quo ante is not restored, in that case, land would vest into State Government. It is also required to be noted that as such, when the proceedings under Section 84-C of the Bombay Tenancy and Agricultural Land Act for breach of Section 63 of the Bombay Tenancy and Agricultural Land Act was initiated, the sale in favour of respondent Nos. 1 to 3 was not declared void under the provisions of the Bombay Prevention and Fragmentation and Consolidation of Land. It appears that both the proceedings i.e. proceedings under the provisions of Bombay Prevention and Fragmentation and Consolidation of Land Act as well as under Section 84-C of the Bombay Tenancy and Agricultural Land Act were simultaneously going on. Even otherwise, as stated above, both the proceedings are separate and distinct and have different consequences and therefore, contention on behalf of the petitioners that as the sale with respect to land in question were void under the Bombay Prevention and Fragmentation and Consolidation of Land Act, no proceedings under Section 84-C of the Bombay Tenancy and Agricultural Land Act was maintainable, cannot be accepted.
It is also required to be noted that initially, the Mamlatdar & ALT, Gandhinagar passed an order on 4.9.1986 in Tenancy Case No.3670/1986 under Section 84-C of the Bombay Tenancy and Agricultural Land Act, which was never challenged by the petitioners and it was the purchasers who challenged the same upto Gujarat Revenue Tribunal who remanded the matter to the Mamlatdar & ALT by order passed in TEN.BA 569 of 1988. It is also required to be noted that even subsequent to the order passed by the Mamlatdar & ALT, Gandhinagar on remand, order dated 31.1.1991 passed under Section 84-C of the Bombay Tenancy and Agricultural Land Act was never challenged by the petitioners- sellers before the Deputy Collector and it was the respondent Nos. 1 to 3 original petitioners who challenged the order passed by the Mamlatdar & ALT dated 31.1.1991 before the Deputy Collector. Considering the aforesaid, it can be said that respective parties did restore the status-quo ante and therefore, all the Authorities below have rightly passed the order under Section 84-C of the Bombay Tenancy and Agricultural Land Act vesting the land in question with State Government. All the aforesaid aspects are elaborately dealt with by the Gujarat Revenue Tribunal in the impugned judgment and order.
In view of the above, there is no substance in the present petition which deserves to be dismissed and is accordingly dismissed.
(M.R.SHAH, J.) (ashish) Top