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SCA/9687/2010 7/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9687 of 2010
=========================================================
PALIBEN
SHUKHABHAI - Petitioner(s)
Versus
STATE
OF GUJARAT & 6 - Respondent(s)
=========================================================
Appearance
:
M/S
THAKKAR ASSOC. for
Petitioner(s) : 1,
MR M.R. MENGDEY, ASST.GOVERNMENT PLEADER for
Respondent(s) : 1,
None for Respondent(s) : 2 - 5, 7,
MR
TATTVAM K PATEL for Respondent(s) :
6,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 18/08/2010
ORAL
ORDER
By
way of this petition under Article 226 of the Constitution of
India, the petitioner – seller has prayed for appropriate writ,
order and/or direction to quash and set aside the judgement and
order dtd.25/6/2006 passed by the Gujarat Revenue Tribunal,
Ahmedabad in Revision
Application No.27 of 2008, by which the Gujarat Revenue
Tribunal has dismissed the said Revision
Application preferred by the petitioner confirming the order
passed by the Dy.Collector,
Choryasi Prant, Surat dtd.23/4/2008 in Tenancy
Case No. 27 of 2007 in dropping the proceedings against the
private respondents herein under sec.84(C) of the Bombay
Tenancy Act. That the petitioner was owner of the land in
question and he sold the said land in favour of the respondent Nos.4
to 7 herein by registered sale deed dtd.5/4/1990 on payment of full
consideration and Mutation
Entry No.316 dtd.1/1/1991 came to be recorded in the revenue
record mutating the name of the purchasers. That after a period of
nine years, the Collector, Surat initiated suo-motu proceedings of
Revision against the Mutation
Entry No.316 by registering RTS Case No.42 of 1995. That vide
order dtd.18/12/1999, the Collector cancelled the said Mutation
Entry No. 316. Being aggrieved by and dissatisfied with the
order passed by the Collector, Surat cancelling the Mutation
Entry No. 316, the respondent Nos.4 to 7 purchasers
preferred Revision
Application before the Secretary (Appeals), Revenue
Department, State of Gujarat, which came to be allowed vide order
dtd.18/12/1999 and Mutation
Entry No.316 came to be restored. That being aggrieved by and
dissatisfied with the order passed by the Secretary (Appeals),
Revenue Department, State of Gujarat dtd.18/12/1999, the State
preferred Special Civil Application No.9303 of 2003, which came to
be dismissed by this Court on the ground that, proceedings were
initiated by the Collector after unreasonable period. That
thereafter, after a period of almost 15 year of the transaction and
the registered sale deed in favour of the respondent Nos.4 to 7
dtd.5/4/1990, the Collector vide order communication dtd.29/1/2005
directed the Mamlatdar
and ALT to initiated proceedings under sec.70(O) of the
Bombay Tenancy Act
and to examine whether the respondent Nos.4 to 7 purchasers were
agriculturists or not. Accordingly, the Mamlatdar
and ALT initiated proceedings under sec.70(O) of the Bombay
Tenancy Act against the respondent Nos.4 to 7 by issuing
notice dtd.3/1/2007. That the Mamlatdar
and ALT by order dtd.31/8/2007 passed in Tenancy Case No.84
of 2006 recorded a finding that the respondent Nos.4 to 7 were
agriculturists and they have committed breach of the provisions of
sec.2(6) read with sec.63 of the Bombay
Tenancy Act while purchasing the subject land. Consequently, the
Mamlatdar and ALT issued direction under sec.84(C)(2) of the Bombay
Tenancy Act directing to restore the possession of the suit
land to its original position within a period of three months. Being
aggrieved by and dissatisfied with the order passed by the Mamlatdar
and ALT, the respondent Nos.4 to 7 preferred Tenancy
Appeal No. 27 of 2007 and the Dy.Collector vide order
dtd.23/4/2008 quashed and set aside the order passed by the
Mamlatdar and ALT
which came to be confirmed by the Gujarat Revenue Tribunal by the
impugned judgement and order in the Revision
Application filed by the petitioner – seller. Being
aggrieved by and dissatisfied with the order passed by the
Dy.Collector as
well as Gujarat Revenue Tribunal in quashing and setting aside the
order passed by the Mamlatdar
and ALT dtd.31/8/2007 passed in Tenancy Case No.84 of 2006,
the petitioner – seller has preferred the present petition under
Article 227 of the Constitution of India.
Mr.Navin
Pahwa, learned advocate appearing on behalf of the petitioner has
vehemently submitted that at the time when the petitioner sold the
land in question in favour of the respondent Nos.4 to 7, he was made
to aware that respondent Nos.4 to 7 purchasers are
agriculturists, however, subsequently, it has been found that the
respondent Nos.4 to 7 were not agriculturists at the relevant time.
It is further submitted that the Dy.Collector
as well as the Gujarat Revenue Tribunal have quashed and set aside
the order passed by the Mamlatdar
and ALT mainly on the ground that proceedings were
initiated by the Mamlatdar
and ALT belatedly and after unreasonable period. It is
further submitted that both the authorities below have not actually
gone into the merits of the case as to whether at the relevant time
the respondent Nos.4 to 7 were agriculturists or not. It is
submitted that, as such, the finding given by the Mamlatdar
and ALT that the respondent Nos.4 to 7 were not
agriculturists, is not upset either by the Dy.Collector
or the Gujarat Revenue Tribunal. It is submitted that sale in
favour of the respondent Nos.4 to 7 is declared invalid and
therefore, the land is required to be disposed of under sec.84(C) of
the Bombay Tenancy Act
and the petitioner as a seller can be re-granted the land in
question. Therefore, it is submitted that the petitioner has locus
to prefer the present petition.
Submitting
accordingly, it is requested to admit/allow the present Special Civil
Application.
Heard
the learned advocates appearing on behalf of the respective parties.
At
the outset, it is required to be noted that in fact, the petitioner
is the seller who sold the land in question in favour of the
respondent Nos.4 to 7 on payment of sale consideration way back in
the year 1990. It is also required to be noted that at the relevant
time the name of the purchasers respondent Nos.4 to 7 were
mutated in the revenue record in the year 1990, which was sought to
be set aside by the Collector and in fact, the Collector set aside
the same, however, the purchasers – respondent Nos.4 to 7 succeeded
before the Secretary (Appeals) and the
Mutation Entry No.316 dtd.1/1/1991 was ordered to be
restored and the order passed by the Secretary (Appeals) restoring
Mutation Entry No.316
dtd.1/1/1991 in favour of the respondent Nos.4 to 7 came to be
confirmed by this Court in Special Civil Application No. 9303 of
2003 and the learned Single Judge did not interfere with the order
passed by the Secretary (Appeals), Revenue Department, State of
Gujarat on the ground that the proceedings were initiated by the
Collector after unreasonable period. The said order has attained
finality and has become final and conclusive. Once it is held by
this Court in a proceedings with respect to Mutation
Entry for the land in question that the Mutation
Entry could not have been taken into suo-motu revision after
unreasonable period, it is not appreciable and understandable as to
how and for what reason the proceedings under sec.70(O) of the
Bombay Tenancy Act
were initiated and how the proceedings regarding legality of the
sale/transaction in favour of the respondent Nos.4 to 7 can be
initiated, that too after a period of 15 years. It is also required
to be noted that there is specific findings given by both the
authorities below that apart from the fact that there is
unreasonable delay of more than 15 years in initiating the
proceedings under sec.70(O) of the Bombay
Tenancy Act, the respondent Nos.4 to 7 have invested huge
amount in developing the land. The aforesaid finding is not
challenged by the petitioner. Under the circumstances, it cannot be
said that the Collector has committed any error in quashing and
setting aside the order passed by the Mamlatdar
and ALT u/s.70(O) of the Bombay
Tenancy Act which came to be confirmed by the Gujarat Revenue
Tribunal.
Even
otherwise, considering the decision of the learned Single Judge of
this Court in the case of Smt.Ratnaprabhabai D/o.Hirojirao
Naranrao Mane Vs. M/s.Tulsidas V. Patel and others, reported in
1982(2) GLR 213 as well as the decision of the Division
Bench of this Court in the case of Patel Ratilal Maganbhai and
others Vs. State of Gujarat and others, reported in
2003(1) GLR 562, present petition at the instance of the seller
who has sold the land by way of registered sale deed way back in the
year 1990 and has pocketed money, is not required to be entertained.
No relief can be granted in the petition at the instance of the
petitioner who is a seller. Considering the aforesaid decision this
Court would not like to exercise the discretion in favour of the
petitioner who is a seller who has sold the land by registered sale
deed long back and who has pocketed money.
Even
otherwise, it is required to be noted that, as such, the petitioner
was never aggrieved by the sale deed and/or transaction in favour of
the respondent Nos.4 to 7. No proceedings were initiated by the
petitioner earlier. It was the Collector who exercised the suo-motu
revisional powers that too after a period of 15 years. Therefore
also, when the petitioner had never challenged the transaction in
favour of the respondent Nos.4 to 7 earlier, it is not open for the
petitioner now to challenge the same. In the facts and circumstances
of the case and considering the findings recorded by the Gujarat
Revenue Tribunal, no case is made out to interfere with the orders
passed by the Dy.Collector
as well as Gujarat Revenue Tribunal in exercise of powers under
Article 227 of the Constitution of India. Therefore, the present
petition deserves to be dismissed and is accordingly dismissed.
[M.R.
SHAH, J.]
rafik
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