Gujarat High Court
Dawoodbhai Ismailbhai Patel vs State Of Gujarat & on 25 April, 2016
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/8067/1999 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8067 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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DAWOODBHAI ISMAILBHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
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Appearance:
MRS KETTY A MEHTA, ADVOCATE for the Petitioner
MS ASMITA PATEL, ASSISTANT GOVERNMENT PLEADER for Respondent(s) No. 1
MR JAGATSINH L VASAVA, ADVOCATE for Respondent(s) No. 2
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
Date : 25/04/2016
ORAL JUDGMENT
1. This petition, under Article 226 of the Constitution of India has been preferred, Page 1 of 5 HC-NIC Page 1 of 5 Created On Wed Apr 27 01:34:56 IST 2016 C/SCA/8067/1999 JUDGMENT challenging the judgment and order dated 15.07.1999, passed by the Special Secretary (Appeals), Revenue Department, State of Gujarat, in Suo Motu Revision No.6 of 1998.
2. The short point involved in the petition is, whether the transfer of a land belonging to an Adivasi by way of a Will is a legal, or valid, devolution, or not.
3. Mrs.Ketty A. Mehta, learned advocate for the petitioner, has submitted that the issue involved in the petition is covered by a judgment of the Division Bench of this Court in the case of Shamjibhai Keshavjibhai Kansagar (Patel) and Ors. v. Principal Secretary, Revenue Dept. (Appeals) and Ors., reported in AIR 2011 Gujarat 55, wherein, a stand is taken that a Will cannot be executed in contravention of law and the occupancy rights of tribals cannot be transferred by a tribal to any other tribal or nontribal, in view of the restriction under Section 73AA of the Bombay Land Revenue Code, 1879. Similarly, a tenantowner of Page 2 of 5 HC-NIC Page 2 of 5 Created On Wed Apr 27 01:34:56 IST 2016 C/SCA/8067/1999 JUDGMENT agricultural land cannot wish nor can show his intention to transfer his right on agricultural land to a nonagriculturist, by executing a Will in contravention of Section 63 of the Bombay Tenancy Act, 1948.
4. It is fairly submitted by Mrs.Mehta that the issue is covered against the petitioner by the above judgment. She has, however, submitted that the petitioner had instituted Civil Suit No.50 of 1999, which was dismissed by the Trial Court. An appeal, being Civil Appeal No.6 of 2009, filed against the judgment of the Trial Court, is pending. The rejection of the petition on the ground of the above judgment, therefore, may not come in the way of the Appellate Court.
5. Mr.J.L.Vasava, learned advocate for respondent No.2, is also of the same view and has no objections to the petition being disposed of on the basis of the above judgment.
6. Ms.Asmita Patel, learned Assistant Government Pleader, submits that the petition would no longer survive, therefore, the same may be Page 3 of 5 HC-NIC Page 3 of 5 Created On Wed Apr 27 01:34:56 IST 2016 C/SCA/8067/1999 JUDGMENT disposed of as the issue involved is covered by the judgment of the Division Bench of this Court in Shamjibhai Keshavjibhai Kansagar (Patel) and Ors. v. Principal Secretary, Revenue Dept. (Appeals) and Ors. (supra).
7. In view of the above consensus between learned counsel for the respective parties, the following order is passed:
The petition, being covered against the petitioner by the judgment of the Division Bench of this Court in Shamjibhai Keshavjibhai Kansagar (Patel) and Ors. v. Principal Secretary, Revenue Dept. (Appeals) and Ors. (supra), is dismissed, without entering into the merits of the case, as conceded by learned counsel for the petitioner.
However, the dismissal of the petition will not come in the way of the Appellate Court while deciding Civil Appeal No.6 of 2009. The said appeal shall be decided in Page 4 of 5 HC-NIC Page 4 of 5 Created On Wed Apr 27 01:34:56 IST 2016 C/SCA/8067/1999 JUDGMENT accordance with law.
8. The petition is disposed of, accordingly. Rule is discharged. The interim relief granted earlier, stands vacated. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) sunil Page 5 of 5 HC-NIC Page 5 of 5 Created On Wed Apr 27 01:34:56 IST 2016