IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No 11389 of 2002
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ALAUDDIN IBRAHIM RAJPURA
Versus
DEPUTY COLLECTOR
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Appearance:
1. Special Civil Application No. 11389 of 2002
MR MA KHARADI for Petitioner No. 1
.......... for Respondent No. 1
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CORAM : MR.JUSTICE H.K.RATHOD
Date of Order: 25/11/2002
ORAL ORDER
Heard learned advocate Mr. Kharadi for the
petitioner. In this petition, in para 9(B), the
petitioner has prayed for directing the respondent to
restore the possession of the land situated in Survey No.
729 and 752/2 Paiki of village Ilol forthwith. Learned
advocate Mr. Kharadi for the petitioner has submitted
that the petitioner entered into a registered agreement
to purchase two pieces of land as mentioned in paragraph
3(1) of the petition and the possession was taken over by
the petitioner but the registered sale deed could not be
executed in view of the mortgage made by the vendor. In
the year 1981, the respondent authority initiated
proceedings under the Bombay Prevention of Fragmentation
and Consolidation of Holdings Act against the petitioner
and by order dated 30th September, 1986, it was held by
the respondent authority that there was violation of the
provisions of the said Act and, therefore, ordered to
restore possession of the land to the vendor and also
imposed fine of Rs.250.00. According to the petitioner,
said order remained unimplemented for some time and,
thereafter, the respondent authority get prepared the
panchanama and the possession was handed over to the son
of the vendor on 7th February, 1990. Learned advocate
Mr. Kharadi has submitted that the revisional authority
by order dated 28th January, 1991 holds that there was no
violation of the provisions of the said Act committed and
that order has not been carried out before any higher
forum. Mr. Kharadi further submitted that thereafter,
the petitioner approached this Court by filing special
civil application no. 11712 of 1994 and this Court
passed order on 26th September, 2001 and directed the
respondent No.2 to examine the application of the
petitioner dated 20th November, 1992 made by the
petitioner in view of the order dated 28th January, 1991
passed by the revisional authority and to pass
appropriate orders on such an application in accordance
with law after giving opportunity of hearing to the
respondent no.4 within two months from the date of
receipt of certified copy of the said order. It was also
directed to respondent No.2 to consider the orders passed
by the respondent no.1 dated 28th January, 1991 in
revision application no. 7 of 1990 while passing order
on the application dated 20th November, 1992. With said
observations and directions, aforesaid petition was
disposed of by this Court. Thereafter, the Deputy
Collector, Himatnagar decided the said application of the
petitioner dated 20th November, 1992 wherein prayer has
been made by the petitioner to restore possession of the
land in question and the application of the petitioner
for restoration of possession has been rejected by the
Deputy Collector on 30th August, 2002.
While rejecting the application of the petitioner
dated 20th November, 1992, it was observed by the Deputy
COllector concerned that on the basis of the agreement to
sale, the petitioner has already approached the Civil
Court namely Court of the 3rd Jt. Civil Judge,S.D.,
Himatnagar by filing Regular Civil Suit No. 95 of 1991
which was dismissed by the civil court on 20th July, 1998
only on the ground that there is no sale deed between the
parties and only because of an agreement to sale, prayer
made by the petitioner was rejected and was not granted.
In view of these factual aspects that before the
civil court, prayer made by the petitioner was for
restoration of the possession of the land in question on
the an agreement to sale, prayer made by the petitioner
was rejected and was not granted. Against the said order
of the civil court, the petitioner preferred appeal which
is pending before the District Court, Sabarkantha.
In view of these factual aspects of the matter,
since the prayer similar to the prayers made by the
petitioner before the civil court for restoration of the
possession of the land in question on the basis of an
agreement to sale has been made by the petitioner before
this court, this petition cannot be entertained.
Therefore, since the petitioner has already availed
alternative remedy by filing civil suit before the civil
court and has also preferred appeal after the said suit
was dismissed by the civil court for the same relief,
this petition is not entertained by this court without
considering the merits of the matter.
This petition is, therefore, dismissed.
Dt. 25.11.2002.(H.K. Rathod,J.) Vyas