Amin vs Shantilal on 27 April, 2010

Gujarat High Court
Amin vs Shantilal on 27 April, 2010
Author: Ravi R.Tripathi,&Nbsp;
   Gujarat High Court Case Information System 

  
  
    

 
 
    	      
         
	    
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AO/45/2010	 5/ 5	ORDER 
 
 

	

 

IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
 

 


 

APPEAL
FROM ORDER No. 45 of 2010
 

=========================================================

 

AMIN
PATEL & COMPANY, THROUGH PARTNER, ARVINDBHAI PURSHOTTAM -
Appellant(s)
 

Versus
 

SHANTILAL
DALPATBHAI MISTRI & 6 - Respondent(s)
 

=========================================================
 
Appearance
: 
MR
JITENDRA M PATEL for
Appellant(s) : 1, 
None for Respondent(s) : 1 -
7. 
=========================================================


 
	  
	 
	  
		 
			 

CORAM
			: 
			
		
		 
			 

HONOURABLE
			MR.JUSTICE RAVI R.TRIPATHI
		
	

 

 
 


 

Date
: 27/04/2010 

 

 
ORAL
ORDER

The
present Appeal From Order is filed by the appellant/ original
plaintiff being aggrieved by an order passed by the learned 14th
Additional Senior Civil Judge, Vadodara below exh.5 in Special Civil
Suit No.135 of 2006 whereby the learned Judge by his order dated
7.11.09 is pleased to dismiss the application, exh.5. Learned
advocate Mr.Patel submitted that the learned Judge has committed
error in observing in para 16 as under:

It
is evident from the r5ecord that the plaintiff is not an
agriculturist. The suit lands is an agricultural land. Such suit
lands are prohibited lands. As the plaintiff is not an agriculturist
he cannot entered into agreement fro sale without prior permission of
the collector as provided u/s 63 of the Bombay Tenancy and
Agricultural Lands Act, 1948. No such statutory permission produced
on record by the plaintiff. So, it can be said that the agreement
for sale dated 4.4.1994 was executed in violation of sec.63 of the
Bombay tenancy Act. Thus, the said agreement was invalid in view of
sec.23 of the Contract Act and it became frustrated as per sec.56 of
the contract act. Thus, in my opinion, as the agreement for sale was
invalid ab initio, no legal right was conferred under the said
agreement. So, considering the factual as well as legal aspect, the
plaintiff has no prima facie case and also no balance of convenience
in his favour.

2. The
learned advocate for the appellant produced a copy of agreement to
sell dated 4.4.94 and invited attention of the court to para 6 &
7 of the same. Para 6 is to the effect that,

This
land is open land. This land is to be used by you for Non
Agricultural purpose. That is to be done by you and in that we will
give our signature, consent and statement, etc. Expenses will be
borne by you and amount, if any is to be deposited will be deposited
by you.

Learned
advocate for the appellant also invited attention of the Court to
para 7 of the agreement to sell. Para 7 reads as under:

After
this land is converted into NA, permission under sec.26 of the ULC
Act will be required to be obtained and that will be obtained by you.
For that purpose any signature, consent, affidavit, statement as may
be required will be given by us.

3. The
learned advocate for the appellant submitted that the subject matter
of the sale deed cannot be said to be that of agricultural land. He
submitted that from the aforesaid two paras of the sale deed it is
clear that what was agreed to be purchased by the plaintiff was NA
land.

4. Having
taken into consideration the contents of the said two paras and
taking into consideration the discussion made by the learned Judge it
is clear that the learned Judge is right if it is said that agreement
to sell is not qua agricultural land, then on the date of agreement
to sell the subject matter was not in existence because the land
which is agreed to be purchased after it is converted into NA land
was never an NA land on the date of agreement.

5. The
learned advocate for the appellant also invited attention of the
Court to the averments made in para 1 of the agreement to sell
wherein it is stated that,

The
land is situated in Village Harni, Taluka/ District Vadodara, Special
District Vadodara City, bearing Revenue Survey No.160, 161, and 176
admeasuring as per 7/12 extract respectively, 6273 sq. mtr, 7183 sq.
mtr and 2833 sq. mtr totalling to 16,289 sq. mtr are awarded Final
Plots no.3, 4 and 15 in Draft Town Plan Scheme, Harni by Vadodara
Urban Development Authority (VUDA)

6. The
learned advocate for the appellant submitted that in light of the
aforesaid facts once land has already come within the Town Planning
Scheme, the land loses its character of an agricultural land and
therefore, the plaintiff was able to draw entitlement from the said
agreement to sell.

The
Court does not find substance in the aforesaid submission for the
reason that only by virtue of inclusion of agricultural land in TP
Scheme the land does not lose its character of agricultural land.
Still the party concerned has to get it converted into NA land. That
being so, the Court is not able to accept the submission of the
learned advocate.

Therefore,
this Court is of the opinion that the court below has not committed
any error in rejecting the application. No merit is found in the
Appeal From Order. Hence dismissed.

(RAVI
R. TRIPATHI, J.)

karim

   

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