Gujarat High Court Case Information System
Print
LPA/1593/2007 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 1593 of 2007
In
SPECIAL
CIVIL APPLICATION No. 19071 of 2007
With
CIVIL
APPLICATION No. 10904 of 2007
In
LETTERS PATENT APPEAL No. 1593 of 2007
=========================================================
JAGDISHBHAI
SUKHABHAI AHIR - Appellant(s)
Versus
STATE
OF GUJARAT & 7 - Respondent(s)
=========================================================
Appearance
:
MR
RC JANI for
Appellant(s) : 1, 1.2.1, 1.2.2,1.2.3
Ms.Mini Nair, AGP for
Respondent(s) : 1,
UNSERVED-EXPIRED (N) for Respondent(s) : 2,
MR
SAURABH M PATEL for Respondent(s) : 3 -
8.
=========================================================
CORAM
:
HONOURABLE
MS. JUSTICE R.M.DOSHIT
and
HONOURABLE
MR.JUSTICE SHARAD D.DAVE
Date
: 02/09/2008
ORAL
ORDER
(Per
: HONOURABLE MS. JUSTICE R.M.DOSHIT)
Heard
the learned advocates. With the consent of the learned advocates,
the Appeal is heard and finally decided today.
This
Appeal preferred under Clause 15 of the Letters Patent arises from
the order dated 3rd August, 2007 made by the learned
Single Judge in the above Special Civil Application No.19071 of 2007.
The
appellant and six others purchased a piece of land admeasuring 5615
sq.mtrs. of land Survey No.282/2 Block No.210 situated at village
Lajpor, Taluka Choryasi, District Surat by registered sale deed dated
16th August, 1984. Pursuant to the said sale, revenue
entry No.1715 came to be made on 28th January, 1985 in the
Record of Rights. The said entry was not certified. In the year
1990, the said entry was taken into review. By order dated 17th
May, 1993 made by the Mamlatdar and Agricultural Lands Tribunal in
Tenancy Case No.233 of 1992, it was held that the said sale made in
favour of the seven purchasers was in contravention of Section 63 of
the Bombay Tenancy & Agricultural Lands Act, 1948 (hereinafter
referred to as the Tenancy Act ). The Mamlatdar, therefore,
ordered confiscation of the land to the State Government. Feeling
aggrieved, the appellant preferred Tenancy Appeal No.61 of 1993 which
came to be rejected by the Deputy Collector, Surat on 29th
October, 1993. The said order was confirmed in Revision before the
Gujarat Revenue Tribunal and also by the learned Single Judge.
Therefore, the present Appeal.
Mr.Jani
has appeared for the appellant. He has submitted that amongst the
seven purchasers of the land, the appellant was the only
agriculturist. Six others were non-agriculturists. The six others
were required to be joined as purchasers as the appellant had
borrowed money from the said six persons to purchase the land. In
course of time, the appellant has paid off the said six purchasers.
The said six purchasers have in the year 1998 relinquished their
right in the land. Thus, for all practical purposes, the appellant
was the only purchaser of the land. The appellant being an
agriculturist, the finding that the transfer was hit by Section 63 of
the Tenancy Act is erroneous. He has also submitted that the action
initiated by the Mamlatdar in the year 1990 was grossly delayed.
Such an action cannot be upheld. In support thereof, he has relied
upon the judgment in the matter of Friends’ Land Development Company
Vs. State of Gujarat [2006(3) GLR 2599].
In
the above matter of Friends’ Land Development Company, the purchase
of the land was made by the partnership firm wherein some of the
partners were non-agriculturists. The matter arose under the
Saurashtra Gharkhed, Tenancy Settlement and Agricultural Lands
Ordinance, 1949. The learned Single Judge observed that option may
be given to the petitioner firm for relinquishment of right by the
partners who were not agriculturists and the matter may be considered
for retaining of the land by the firm whose all partners are
agriculturists. Be it noted that in the present case, the purchase
is not made by a partnership firm, but individual persons as joint
owners or co-owners. Further, under the Ordinance of 1949, the State
Government has no authority to confiscate the land. In case the
transfer of the land is held to be bad, the land reverts back to the
vendor. The above judgment shall have no applicability on the facts
of the present case.
As
to the delay, it should be noted that the aforesaid mutation entry
made on 28th January, 1985 was not certified. The action
initiated under Section 84-C of the Tenancy Act, therefore, cannot be
said to be delayed so as to vitiate the said action.
We
also agree with the learned Single Judge that by executing a Deed of
Relinquishment by other purchasers in favour of the appellant, the
transfer of the land in favour of the non-agriculturists could not
have been saved.
We
have perused copy of the sale deed produced by Mr.Jani. It is
evident that the seven persons had purchased the land together as
joint owners. In the circumstances, we are of the opinion that each
purchaser had an equal share in the land. It is not in dispute that
the appellant was the agriculturist at all material times. The sale
of part of the land to the appellant would not be hit by Section 63
of the Tenancy Act. The Tribunal and the learned Single Judge have
manifestly erred in setting aside transfer of part of the land Block
No.210 made in favour of the appellant who admittedly was an
agriculturist. The order of the Mamlatdar & Agricultural Lands
Tribunal made on 17th May, 1993, therefore, requires to be
modified to the above extent.
As
the seven persons had jointly purchased the land admeasuring 5615
sq.mtrs., the appellant had become owner of approximately 802
sq.mtrs. of the land. We, therefore, allow this Appeal partially.
We declare that the transfer of 802 sq.mtrs. of land of Block No.210
of village Lajpor in favour of the appellant was not in contravention
of Section 63 of the Tenancy Act. The appellant is entitled to retain
802 sq.mtr. of the said land Block No.210.
It
is directed that the Mamlatdar and Agricultural Lands Tribunal,
Taluka Choryasi will modify his order dated 17th May, 1993
made in Tenancy Case No.233 of 1992 in respect of the land Block
No.210 of village Lajpor to the extent indicated hereinabove. The
appellant will be permitted to select portion of the land admeasuring
802 sq.mtrs. out of the said Block No.210 admeasuring 5615 sq.mtrs.
to be retained by him. For the remaining part of the said land Block
No.210 of village Lajpor, the order made by the Mamlatdar and
Agricultural Lands Tribunal is confirmed.
In
view of the above order, the Civil Application stands disposed of.
The parties will bear their own cost.
(Ms.R.M.Doshit,J)
(
Sharad D Dave, J )
srilatha
Top