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LPA/2320/2009 4/ 4 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2320 of 2009
In
SPECIAL
CIVIL APPLICATION No. 13034 of 2008
With
CIVIL
APPLICATION No. 12597 of 2009
In
LETTERS PATENT APPEAL No. 2320 of 2009
For
Approval and Signature:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
HONOURABLE
MR.JUSTICE ANANT S. DAVE
=============================================
SHANTABEN
WD/O CHHATRASINH BHIMSINH KOSAMIYA - Appellant(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=============================================
Appearance
:
MR NV GANDHI for Appellant(s) :
1, 1.2.1, 1.2.2, 1.2.3,1.2.4
MR UNMESH TRIVEDI ASST. GOVERNMENT
PLEADER for Respondent(s) : 1,
MR MANAN A SHAH for Respondent(s) :
2 - 3.
=============================================
CORAM
:
HONOURABLE
THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA
and
HONOURABLE
MR.JUSTICE ANANT S. DAVE
Date
: /09/2010
CAV
ORDER
(Per
: HONOURABLE MR. JUSTICE ANANT S DAVE)
1. This
appeal under clause 15 of Letters Patent arise out of an oral order
dated 1.9.2009 passed in Special Civil Application No. 13034 of 2008
by learned Single Judge, whereby order dated 16.4.2008 passed by
Gujarat Revenue Tribunal (in short “G.R.T.”) in Revision
Application No.TEN/BS/138 of 1997 came to be confirmed.
2. The
petitioners/appellants are the vendors of the land bearing Block
No.314 of Village Kosam, Taluka:Olpad, District: Surat vide
registered sale deed dated 17.5.1982 and mutation entry No.1591 dated
12.8.1982 was entered into village revenue records. It is not in
dispute that land in question was sold to non-agriculturists. The
Mamlatdar & ALT, passed an order on 27.2.1987 in Ganot Case
No.84C/201/84, that if the land was not restored to its original
position within three months, it would vest into the Government.
After a period of eight yeas, land owner, the predecessor in title of
the petitioners, filed Tenancy Appeal No.91 of 1995 before Dy.
Collector, Surat and vide order dated 25.9.1997, the Dy. Collector
confirmed the order dated 27.2.1987 passed by the Mamlatdar &
ALT. That, revision application being TEN/BS/138 of 1997 was
preferred on 5.11.1997 and thereafter legal heirs were brought on
record only after the order of abatement was passed but later on it
was ordered to be heard on merit.
2.1. That
vendee of the above land also filed revision application No.
TEN/BS/179/ 2004 before the G.R.T. on 7.12.2004 challenging the order
of Mamlatdar & ALT dated 27.2.1987 and order dated 25.9.1997 of
the Dy. Collector. It is to be noted that the vendee had not
challenged the order of Mamlatdar dated 27.2.1987 before the Dy.
Collector but after a lapse of about 17 years the order was
challenged before the Revisional Authority.
2.2. In
the proceedings of appeal, challenging the entry No.1818 dated
5.9.1990, by which, land in question did vest into Government, RTS
Appeal No.50 of 1991 was preferred before Dy. Collector, Olpad, which
was remanded on 24.3.1992, so as to ascertain possession of the land
and accordingly the Mamlatdar after recording statement of the
concerned persons found that possession of the land was with original
landlord and informed the Dy. Collector accordingly.
3. However,
Dy. Collector, Olpad in RTS Appeal No.93 dated 7.12.1993 observed
that, proceedings of appeal are to be taken up by the aggrieved
person against the order dated 27.2.1987 passed by Mamlatdar under
Section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948
(in short “the Act”). Thus after eight years the tenancy
appeal was filed referred to in earlier para of this order.
4. So
far as vendee of the transaction vide registered sale deed dated
17.5.1982 is concerned, in no uncertain terms it was stated before
G.R.T. that the land in question was not handed over to the original
landlord and no transaction ever took place between vendee or vendor
to restore the land in question as required under Section 84C of the
Act.
5. In
above backdrop of facts, contention of learned advocate for the
appellants that the vendee and vendor had agreed and thereafter
restored possession of the land, cannot be believed in absence of any
record or evidence.
6. We
have perused the record of the case and the order of Mamlatdar &
ALT dated 27.2.1987 confirmed by the Dy. Collector in appeal vide
order dated 25.9.1997 and the order dated 15.4.2008 passed in
revision application by the G.R.T., clearly establish that initial
transaction of sale of the land vide registered sale deed dated
17.5.1982 was contrary to the provisions of Section 84C of the Act
and parties have failed to bring back the land in question into its
original position within prescribed time limit of 90 days under
Section 84C(2) of the Act and the above concurrent findings of three
authorities namely, competent, appellate and the revisional as
confirmed by learned Single Judge while exercising powers under
Articles 226 and 227 of the Constitution of India, do not require any
interference at the stage of this appeal, since no infirmity either
on fact or law is noticed.
7. Therefore,
decision of the learned Single Judge based on interpretation of
Section 84C (2) and (3) of the Act about automatic vesting of the
land subject to restoration of the land into its original position
within 90 days from the issuance of notice by the Mamlatdar, cannot
be said to be contrary to law, when a statement made before Mamlatdar
by the seller, about agreement to restore the land into its original
position, is not supported by any material on record and instrument
of transaction in this regard, that land was infact restored as such.
Thus, the order of Mamlatdar passed on 27.2.1982 and confirmed by
the appellate and revisional authority subsequently, do not call for
any interference.
8. This
appeal in absence of merit fails. Notice discharged. No order as to
costs.
9. In
view of the above, Civil Application for stay does not survive and
accordingly stands disposed of.
[S.J.
MUKHOPADHAYA, C.J.]
[ANANT
S. DAVE, J.]
//smita//
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