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Ravjibhai Mavji Jogani vs State Of Gujarat on 20 October, 2000 cites

State Of Orissa vs Brindaban Sharma on 23 July, 1991

The respondent - authority who relied upon the report which has been made by the Deputy Collector to the Collector in which the Deputy Collector has specifically stated that the land has been sold to the tenant (father of the petitioners) in 1970 and that the resolution about the applicability of section 43 of the Tenancy Act was passed by the State Government on 10th February, 1987. The said respondent - authority has not taken into account as can be seen from his report, the specific order passed by the Collector granting permission to the Mamlatdar, Administrator to dispose of the property by an outright sale after clarifying that the provisions of the Tenancy Act were not applicable. The said resolution of 1987 was not retrospective in nature and unless the sale effected by the Mamlatdar was declared as void after resorting to the provisions under section 84-C of the Tenancy Act. The said report cannot confer jurisdiction on the Collector to exercise suomotu powers contrary to settle principle of law which has been laid down by this Court as well as Appex Court. It is also clear from the records that so far no proceedings under section 84-C of the Tenancy Act were taken as against the transaction effected by the Mamlatdar with the approval of the Collector. In light of this fact, the Collector now under the guise of exercise of power under rule 108(6) of the Land Revenue Rules cannot exercise powers on the supposition that the orders were void or without jurisdiction. It is also clear from the records that the Entry No.3548 made in the Year-1965 have taken up after period of 26 years. Though Collector has given different reasons for different entries, but there is no valid justification in respect to the Entry No.3548 which was made in the Year-1965. Shri Chhaganbhai Mavjibhai was deemed purchaser along with Lalji Rana who were jointly cultivating the said Survey No.332 in all admeasuring 23 acre 12 gunthas. The outright sale was made by the Mamlatdar in his capacity as Administrator with the permission of the Collector and the Charity Commissioner on 24th February, 1970 and, therefore, from that date the provisions contained in section 88E were not applicable as contended by respondent - authority. The restriction and prohibition contained in section 43 were made applicable only from 1987 and not prior thereto and as it was not in operation on the date on which the sale was effected in 1970. If the lands were of new tenure lands the Collector would not have granted permission after specifically stating his recital in the sale deed that the provisions of the Tenancy Act were not applicable. It is also the case of the respondent authority that the lands could have been transferred with his permission and, therefore, such transaction of the sale deed cannot consider to be hit by section 88E or by section 43 of the Tenancy Act. When the lands were converted into non-agricultural land by the District Panchayat which is made by competent authority under section 65 of the Land Revenue Code and the Collector had no jurisdiction to challenge the action which can be said to be his own action under the Code and no enquiry was made how the words new tenure came to be introduced subsequently after the lands were sold to Chhaganbhai Mavjibhai. It is also clear from the record that the order of the Mamlatdar dated 11th April 1991 was not taken up in revision at any time either by the Deputy Collector or the Collector and the same cannot be said to be without jurisdiction or ab initio void as contended by the respondent - authority. At the most, the lands in question would be governed by new tenure requiring prior permission of the Collector before disposal and nothing beyond that can be presume against the petitioners. In fact, a reality, the whole individuals proceedings has been initiated at the instance of the dissatisfied individuals and no proper enquiry was held by the respondent - authority. From the records, it is clear that the petitioners have invested large amount and, thereafter, subsequent transactions of sale have pointed out by the petitioners that the registered sale deed in favour of a third party and in such situation, the suomotu power should not be exercised by the respondent authority beyond the reasonable time which definitely adversely effected the existing right of the petitioners as well as third party because, during the period from 1965 to 1991 and before order was passed in the Year-1994, the property in question has changed hands and the persons who are going to be adversely affected are not joined as parties and, therefore, in absence of such affected persons no adverse order can be passed in their absence.
Orissa High Court Cites 9 - Cited by 74 - Full Document
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