Gujarat High Court Case Information System
Print
SCA/7628/2007 12/ 12 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7628 of 2007
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================================
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, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
CHANCHALBEN
JETHABHAI BHIKHABHAI PATEL & 1 - Petitioner(s)
Versus
STATE
OF GUJARAT THRO.SECRETARY & 4 - Respondent(s)
=========================================================
Appearance
:
MR
BHARAT T RAO for
Petitioner(s) : 1 - 2.
MR AMIT PATEL, ASST. GOVERNMENT PLEADER for
Respondent(s) : 1,
None for Respondent(s) : 2 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 07/05/2007
ORAL
JUDGMENT
By
way of this petition under Article 227 of the Constitution of India,
the petitioners have prayed for an appropriate writ, direction
and/or order quashing and setting aside the judgment and order
passed by the Gujarat Revenue Tribunal dated 30.6.2005 passed in
Revision Application No. TENBS 221/1995 and to restore the order
dated 30.6.1995 passed by the Deputy Collector (LR), Surat passed in
Tenancy Appeal No. 2/1995 by which the order dated 30.7.1994 passed
by the Mamlatdar & ALT, Choryasi in Tenancy Case No.36/1994 was
confirmed by the Deputy Collector (LR), Surat.
The
dispute is with regard to the land bearing Survey No.76 Block No.81
situated at village Devadh, Taluka Choryasi, District Surat. The
petitioner No.1 was the owner of the aforesaid land. That the
respondent Nos.3 to 5 herein purchased the said land by registered
sale-deed dated 5.12.1980 and the necessary entry was mutated in the
revenue record being mutation entry No. 630 in the year 1980 itself
and it was also certified by the Competent Authority. That the
Deputy Collector, Choryasi initiated suo-motu revisional powers and
has taken the aforesaid sale-deed / transaction in suo-motu revision
in the year 1994 on the ground that the respondent Nos.3 to 5 were
non-agriculturists and the said transaction was in violation of
provisions of Section 63 of the Bombay Tenancy Act. The Deputy
Collector directed the Mamlatdar & ALT, Choryasi to initiate the
proceedings under Section 84(C) of the Act and accordingly, the
Mamlatdar & ALT, Choryasi initiated the proceedings which was
numbered as Tenancy Case No. 36/1994. The Mamlatdar & ALT, Surat
vide order dated 30.7.1994 held that the respondent Nos.3 to 5 were
not agriculturists when they purchased the land in question and
therefore, he held the said transaction as invalid and in breach of
provisions of Section 63 of the Act. Being aggrieved and
dissatisfied with the order passed by the Mamlatdar & ALT,
Choryasi dated 30.7.1994 passed in Tenancy Case No. 36/94, the
respondent Nos.3 to 5 preferred appeal before the Deputy Collector
(LR), Surat being Tenancy Appeal No. 2/1995 and the Deputy
Collector, Surat dismissed the said appeal confirming the order
passed by the Mamlatdar & ALT, Choryasi. Being aggrieved and
dissatisfied with the order passed by the Deputy Collector (LR),
Surat dated 30.6.1995 passed in Tenancy Appeal No. 2/1995 the
respondent Nos. 3 to 5 preferred revision application before the
Gujarat Revenue Tribunal being Revision Application No. TENBS
221/1995 and the Gujarat Revenue Tribunal by its impugned judgment
and order dated 30.6.2005 has been pleased to allow the said
revision application quashing and setting aside the order dated
30.6.1995 passed by the Deputy Collector (LR), Surat passed in
Tenancy Appeal No. 2/1995 as well as the order passed by the
Mamlatdar & ALT, Choryasi dated 30.7.1994 passed in Tenancy Case
No. 36/1994. Being aggrieved and dissatisfied with the judgment and
order passed by the Gujarat Revenue Tribunal dated 30.6.2005 passed
in Revision Application No. TENBS 221/1995 the petitioners ?
original land owners ? sellers have preferred the present Special
Civil Application under Article 227 of the Constitution of India.
Shri
B.T.Rao, learned advocate appearing for the petitioners has
vehemently submitted that the Gujarat Revenue Tribunal has
materially erred in allowing the said revision application and
quashing and setting aside the order passed by the Deputy Collector
(LR), Surat dated 30.6.1995 passed in Tenancy Appeal No. 2/1995
inasmuch as the transaction between petitioner No.1 and the
respondent Nos.3 to 5 and the sale-deed was in breach of provisions
of Section 63 of the Bombay Tenancy Act and the said transaction was
a nullity and therefore, the learned Tribunal ought not to have
confirmed the said transaction / sale-deed and ought not to have
quashed and set aside the order passed by the Deputy Collector (LR),
Surat. Shri Rao has also further submitted that after the order
passed by the Deputy Collector (LR), Surat dated 30.6.1995 passed in
Tenancy Appeal No. 2/1995, vide agreement dated 10.2.2005 entered
into between the petitioners and the respondent Nos.3 to 5, a sum of
Rs.10 Lacs was repaid to the respondent Nos.3 to 5 and remaining
amount was agreed to be paid within next 14 months and therefore, it
is submitted that after pocketed a sum of Rs. 10 Lacs, the
respondent Nos.3 to 5 cannot claim any right on the basis of the
sale-deed of 1980. It is further submitted that as the respondent
Nos.3 to 5 were non-agriculturists at the time when they purchased
the land in question, the transaction is hit by Section 63 of the
Act and therefore, it is requested to allow the present Special
Civil Application.
It
is required to be noted that the petitioner No.1 has sold the land
in question in favour of the respondent Nos. 3 to 5 by registered
sale deed and has pocketed the money. The transaction of 1980 was
taken under suo-motu revision by the Deputy Collector in the year
1994 i.e. after the period of 14 years of the transaction and even
after 14 years of the necessary entries in the revenue record.
Considering the fact that the suo-motu power was exercised after the
period of unreasonable delay i.e. after the period of 14 years, the
Tribunal has quashed and set aside the order passed by the Deputy
Collector. As the powers were exercised after the period of 14 years
and the same were found to be exercised after unreasonable delay and
when the Tribunal has set aside the said order, it cannot be said
that the Tribunal has committed any illegality in setting aside the
order passed by the Deputy Collector (LR), Surat. On the contrary,
the order passed by the Gujarat Revenue Tribunal is in consonance
with the decisions of this Court as well as the Hon’ble Supreme
Court with regard to exercising the powers belatedly.
It
is also required to be noted that so far as the petitioners are
concerned, the petitioner No.1 is the original land owner who has
sold the land in question to the respondent Nos. 3 to 5 by
registered sale deed in the year 1980. Once he has sold the land and
he is the party to the transaction and has pocketed the money at the
relevant time, it is not open for the petitioner No.1 to challenge
the said transaction of which he is a party to the said transaction.
Identical question came to be considered by the learned Single
Judge of this Court in case of Dashrathlal M. Patel &
Others V/s. State of Gujarat & Others reported
in 2007 (1) GLH 106 and
as per the said decision, when the seller who executed the sale deed
in favour of the purchaser and after receiving the consideration
challenged the transaction as illegal on the statutory provision and
when the petition was preferred under Article 227 of the
Constitution of India, the learned Single Judge in the said decision
has observed that, the petition under Article
227 of the Constitution of India at the instance of such a seller is
not required to be entertained.
The Learned Single Judge has also considered another decision of
this Court in the case of
Prahladbhai Monahbhai Patel V/s. Vithalbhai Mohanbhai Patel in
Special Civil Application No. 4647 of 2005 and
the following observations of the said decision :-
?S#.
Having considered the above, it appears that it is an admitted
position that the father of the petitioner, by accepting
consideration, has executed sale deed in favour of the respondent
no.1. Therefore, father of the petitioner, whose interest is
being represented by the petitioner, is a party to the
transaction, which is found to be in breach of the statutory
provisions by the Prant Officer. The State Government, in
exercise of the revisional jurisdiction has found that the action
is taken after unreasonable delay, inasmuch as the transaction is
of 1963 and even if it is considered that the action was taken
immediately after entry was mutated in the revenue record, then
also, the effect of the delay cannot be said as wiped out. In any
case, the State has not preferred petition before this
Court and the petitioner’s father who was party to the
transaction, as such, cannot be said to be aggrieved by the
decision of the State Government. So will be the case, in the
event, the petitioners are representing the interest as legal
heirs of the party to the transaction. One who is a
beneficiary of the transaction, once having
taken benefit, cannot be allowed to contend that the
transaction is illegal or is in contravention
to statutory provision and, therefore, even though he has
enjoyed the benefit of transaction, the property,
which is already
sold, should be given back to him or should be taken away by the
statutory authority.(Emphasis supplied) At this stage, it would
be worthwhile to refer to certain observations of the Division
Bench of this Court in the case of Patel Ratilal Maganbhai &
others Vs. State of Gujarat, 2003 (1) GLR 562. This Court had,
in the said decision, while considering the challenge made by one
of the parties to the transaction of sale against the decision
of the authority, observed inter alia at para-13 as under:-
“… Seller of the transaction in case of voluntary sale is required to file a suit before the appropriate court for declaration that the sale is void, even if he is seeking a declaration that the transaction of sale is void on account of non-availability of permission of the competent authority. Since it is a question of voluntary sale, seeking declaration of such voluntary sale as void at the instance of the seller of the land, taking into consideration the decision of the Full Bench in the case of Jadav Prabhatbhai Jethabhai, 2001 (1) GLR 16, such seller much approach the Court within the period of limitation for declaration that the sale is invalid or void and the period of limitation as provided under law is of three years from the date of such sale.”??
Under
the circumstances, when the Deputy Collector exercised the powers
after the period of 14 years i.e. after unreasonable delay and the
said order came to be set aside by the Gujarat Revenue Tribunal, it
cannot be said that there is any illegality committed by the Gujarat
Revenue Tribunal which calls for the interference of this Court in
exercise of the powers under Article 227 of the Constitution of
India. Even otherwise, considering above, the petitioner No.1 cannot
challenge the order passed by the Gujarat Revenue Tribunal as he
himself was a party to the transaction and the sale deed. If there
are any rights in favour of the petitioners on the basis of
subsequent development and/or transaction and/or agreements, the
same would be a fresh cause of action and for that the petitioners
can initiate appropriate proceedings before the appropriate forum,
however, so far as challenge to the order passed by the Gujarat
Revenue Tribunal impugned in the present Special Civil Application
is concerned, it cannot be said that the same warrants any
interference of this Court in exercise of the powers under Article
227 of the Constitution of India. Under the circumstances, present
Special Civil Application is required to be dismissed and is
accordingly, dismissed.
[
M.R.Shah, J. ]
kdc
Top