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SCA/6250/2002 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6250 of 2002
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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 ?
=========================================================
SHANKERBHAI
HEMABHAI S/O HEMABHAI VANKAR & 6 - Petitioner(s)
Versus
STATE
OF GUJARAT & 4 - Respondent(s)
=========================================================
Appearance
:
MR
BHARAT JANI for
Petitioner(s) : 1 - 7.
GOVERNMENT PLEADER for Respondent(s) :
1-2,
RULE SERVED for Respondent(s) : 3 -
5.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 21/10/2010
ORAL
JUDGMENT
By
way of present petition, the petitioners have inter alia prayed for
quashing and setting aside the impugned order dated 14th
September 2000 passed by the respondent No.1 allowing the Revision
Application and setting aside the order dated 15th April
1986 passed by the respondent No.2.
It
is the case of the petitioners that the father of the respondent
Nos.3 to 6 was the owner of the land bearing Survey No.380 situated
at village Dharpur, Taluka Patan. He made an application under
Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948
(hereinafter referred to as ‘the Act’) to the respondent
No.2-Collector for obtaining permission for selling the said land
paiki 20 gunthas to the father of the petitioners, wherein it was
specifically mentioned that the father of the petitioners was an
agriculturist and having experience of agriculture. Thereafter, the
Collector, Mehsana, vide order dated 15th April 1986
granted the permission for selling the land as per the terms and
conditions under Rule 36 read with Section 63 of the Act and in
that manner, the land in question was sold to the father of the
petitioners. As per the transaction of sale, the Talati Cum Mantri
made the entry of transaction in the record of rights on 07th
August 1986. However, after four years, the respondent No.2
preferred Revision Application before the respondent No.1
challenging the order dated 15th April 1986 passed by the
respondent-Collector (the then). During the pendency of the Revision
Application, the father of the petitioners as well as respondent
Nos.3 to 6 expired and therefore, their heirs and legal
representatives have been brought on record. Thereafter, the
respondent No.1 vide order dated 14th September 2000 has
been pleased to set aside the order dated 15th April
1986. Hence, present petition.
Mr.Bharat
Jani, learned advocate for the petitioners, has submitted that the
respondent No.1 has erred in holding that there is breach of
provisions of The Fragmentation Act by dividing 20 gunthas land from
the land bearing Survey No.320; that no reasons have been given by
the respondent No.2 for preferring Revision Application at such a
belated stage i.e. after a period of more four years; that the
validity of a transaction on the basis of provisions of Section 63
of the Act cannot be decided by the revenue authorities in RTS
proceedings; that the documentary evidence produced the petitioners
has not been taken into consideration and appreciated by the
Revisional Authority and that the petitioners are in adverse
possession of the land in question since 1988. Hence, it is prayed
that the impugned order may be quashed and set aside by upholding
the order dated 15th April 1986 passed by the respondent
No.2.
The
learned Assistant Government Pleader has submitted that the impugned
order passed by the respondent No.1 is just and proper and the
authority has passed the order after appreciating the pros and cons
of the matter. There is no illegality much less any perversity in
the findings recorded by the respondent No.1. Hence, present
petition is required to be dismissed.
Having
considered the contentions raised by the learned advocate for the
petitioners, averments made in the petition, contents of the
impugned order and the documentary evidence produced on record, it
transpires that the respondent No.2-Collector has referred to the
papers received from the office of the Mamlatdar vide communication
dated 03rd April 1986. However, it is pertinent to note
that the respondent No.2 has not appreciated the said documents and
other documents which are referred to in the said order dated 15th
April 1986 in their true spirit and perspective. Apart from the
same, the learned advocate for the petitioners has contended that
the father of the petitioners purchased the land in question in the
year 1986 and the Revision Application has been preferred after a
delay of four years in the year 1990. Thus, by taking over all view
of the matter, the impugned order is required to be set aside and
the matter is required to be remanded to the respondent
No.2-Collector for deciding the matter after appreciating and
considering the aforesaid documents forwarded by the office of the
Mamlatdar vide communication dated 03rd April 1986 as
well as the documents referred to in his order dated 15th
April 1986.
For
the forgoing reasons, present petition is hereby partly allowed. The
impugned order dated 14th September 2000 passed by the
respondent No.1 in Revision Application preferred by the respondent
No.2 is hereby quashed and set aside. The matter is remanded to the
respondent No.2-Collector for deciding the same afresh after taking
into consideration the papers received from the office of the
Mamlatdar vide communication dated 03rd April 1986 and
other relevant papers meeting with the lacunas shown by the
respondent No.1 in the impugned order. The respondent No.2-Collector
is directed to decide the matter within a period of four months from
the date of receipt writ of present judgment. It is, however,
clarified that till the decision is not taken by the respondent
No.2-Collector, the possession of the petitioners over the land in
question will not be disturbed. Rule is made absolute to the
aforesaid extent. No order as to costs.
(K.S.
Jhaveri, J)
Aakar
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