Research › Browse › Judgment

Gujarat High Court · body

1993 DIGILAW 282 (GUJ)

AHMED ABDUL RAHIM SHAIKH v. ASSISTANT COLLECTOR

1993-06-28

D.G.KARIA

body1993
D. G. KARIA, J. ( 1 ) THE short point that arises in this petition under Article 227 of the Constitution of India is whether the provisions of sections 63 and 84 C of the Bombay Tenancy and Agricultural Lands Act 1948 (for short the Act) would apply to the land which has been permitted to be used for non-agricultural purpose under section 65 of the Bombay Land Revenue Code. ( 2 ) ONE Shri Ranchhodbhai Bechardas was admittedly a deemed purchaser of the land under section 32 G of the Act bearing Survey No. 83/3 admeasuring OA-34 Gunthas at village Mota Varachcha. It is not in dispute that name of said Shri Ranchhodbhai was mutated in Entry No. 733 as the purchaser of the said land. The land is situated near Gamtal of village Nana Varachcha. Shri Ranchhodbhai made necessary application for converting the said land into non-agricultural use. The Assistant Collector Choryasi Prant Surat by his order dated March 18th 1972 granted the permission for the said land to be so used for non-agricultural purpose. Ranchhodbhai thereafter sold the land in question to original petitioner Ahmed Abdul Rahim Shaikh by a registered sale deed on June 8th 1972 When the petitioner became the owner of the said land the permission for non-agricultural use was cancelled by the Assistant Collector Choryasi Prant Surat by his order dated 3rd January 1973 The petitioner therefore challenged the said order- of cancellation of N. A. Permission before the Gujarat Revenue Tribunal by filing revision application No. TEN. B. A. 3/79. The Tribunal by its order dated September 7th 1974 remanded the matter to the Assistant Collector Choryasi Prant Surat since the applicant and Shri Ranchhodbhai the deemed purchaser of the land were not offered any opportunity of being heard in the matter before cancelling the N. A. Permission. It was contended that once the non-agricultural permission was granted nature of the land changed and the provisions of the Act were not applicable. It was also contended that there were no conditions in the N. A. Permission prohibiting the said Shri Ranchhodbhai from making any transfer of the land. It was also contended that in view of the non-agricultural permission having been granted in respect of the said land provisions of sec. 43 of the Act would not be applicable. It was also contended that there were no conditions in the N. A. Permission prohibiting the said Shri Ranchhodbhai from making any transfer of the land. It was also contended that in view of the non-agricultural permission having been granted in respect of the said land provisions of sec. 43 of the Act would not be applicable. Therefore there was no breach of any of the conditions attached to the non-agricultural use permission. The Revenue Tribunal had remanded the matter to the Assistant Collector to hear the parties afresh. ( 3 ) DURING the pendency of the aforesaid revision application No 3/73 one Dahyabhai Devjibhai and 4 others sought to be impleaded as parties. The Tribunal therefore directed that the Assistant Collector may also hear said Shri Dahyabhai and others and thereafter decide whether they had any locus standi in the matter. The Assistant Collector Choryasi Prant Surat on the matter being remanded heard the parties including Shri Dahyabhai Devjibhai and four others. By the order dated October 10th 1978 Assistant Collector held that since Shri Dahyabhai Devjibhai and others had no locus standi they were not necessary parties. The said judgment and order was carried further to the Gujarat Revenue Tribunal by filing two revisional applications being Revision Application No. TEN. B. S. 261 and 289 of 1978. The Tribunal by its order dated Match 30 1979 again ordered to remand the matter for bringing the heirs of deceased Ranchhodbhai on record and consider the matter afresh if Dahyabhai Devjibhai and others were necessary and proper parties to the proceedings and also to decide if the question under the Prevention of Fragmentation and Consolidation of Holdings Act was involved. After the said remand the Assistant Collector came to the conclusion by his order dated August 11 1980 that said Shri Dahyabhai and others had no locus standi and were not necessary parties to the proceedings. The Assistant Collector however held that the sale entered into between Ranchhodbhai and the petitioners was hit by section 43 of the Act. He ordered that the Mamlatdar should therefore take proceedings for recovery of possession of the said land under section 84 C of the Act. ( 4 ) THE petitioners and the heirs of the deceased Ranchhodbhai being aggrieved by the aforesaid judgment and order of the Assistant Collector preferred Revision Application No. TEN. He ordered that the Mamlatdar should therefore take proceedings for recovery of possession of the said land under section 84 C of the Act. ( 4 ) THE petitioners and the heirs of the deceased Ranchhodbhai being aggrieved by the aforesaid judgment and order of the Assistant Collector preferred Revision Application No. TEN. B. S. No. 184/80 before the Gujarat Revenue Tribunal who by his judgment and order dated April 15th 1983 dismissed the revision application. The Tribunal held that the issue involved in the said revision application was clearly covered by the earlier decision dated March 29th 1977 of the Tribunal in Revision Application No. TEN. B. S. 237/75. The Tribunal observed as follows:"in that decision of this Tribunal it has been categorically decided that there was a breach of sec. 43 of the Act and hence 84 C proceedings require to be taken. That order dated 20. 3. 77 has not been challenged so far and so it becomes final and conclusive". ( 5 ) THE petitioners have also annexed the said decision of the Tribunal rendered on March 29th 1977 in Revision Application No. TEN. B. S. 237/75. That revision application was allowed and the matter was sent back to the Assistant Collector for considering whether there was a breach of conditions under sec. 43. Thus findings regarding violation of sec. 43 of the Act if any were sought. It is therefore not correct to say that the Tribunal had categorically decided that there was a breach of sec. 43 of the Act in respect of the said land. It appears that the Tribunal has misread the decision dated March 29th 1977 in as much as the matter was remanded back to the Assistant Collector for considering whether there was a breach of conditions under section 43 of the Act or not. There was no clear or categorical decision of the Tribunal that there was a breach of sec. 43 of the Act. ( 6 ) THERE is no breach of any condition of the order whereby N. A. Permission was granted. Section 43 of the Act provides for restriction on transfer of the land purchased or sold under the Act. There was no clear or categorical decision of the Tribunal that there was a breach of sec. 43 of the Act. ( 6 ) THERE is no breach of any condition of the order whereby N. A. Permission was granted. Section 43 of the Act provides for restriction on transfer of the land purchased or sold under the Act. Section 43 contemplates that no land or any interest therein prurchased by a tenant under the various sections mentioned therein or sold to any person under section 32 P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred by sale gift exchange mortgage lease or assignment without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest therein shall be partitioned without the previous sanction of the Collector. Thus the provision is with regard to the agricultural land. When the said land ceases to be the agricultural land and changes its nature section 43 cannot be said to be applicable to the said land. Mrs. K. A. Mehta learned Advocate appearing for the petitioners submitted that the Tribunal had no jurisdiction in the matter for the reason that the N. A. permission was granted under the provisions of the Bombay Land Revenue Code. In the facts of the case when the land was no longer the agricultural land the provisions of section 43 cannot be resorted to. Consequently section 84 C of the Act cannot be pressed into service in respect of the land which is no longer an agricultural land. Mrs. Mehta invited my attention to the Circular of the Government notified on January 3 1968 clarifying that the provisions of the Bombay Tenancy and Agricultural Lands Act 1948 will not apply to lands which are converted into N. A. use with the permission of Collector/district Development Officer and the N. A. use of such lands has been commenced. The said Circular of the Government will also apply to the facts and circumstances of the present case. ( 7 ) IN the result the petition succeeds. The impugned judgment and order of the Gujarat Revenue Tribunal rendered in Revision Application No. TEN. B. S. 184/80 on April 15th 1983 is quashed and set aside. The said Circular of the Government will also apply to the facts and circumstances of the present case. ( 7 ) IN the result the petition succeeds. The impugned judgment and order of the Gujarat Revenue Tribunal rendered in Revision Application No. TEN. B. S. 184/80 on April 15th 1983 is quashed and set aside. It is held that provisions of section 43 of the Bombay Tenancy and Agricultural Lands Act 1948 will not be applicable to the land in question which is permitted to be used for non- agricultural purposes. The Mamlatdar Choryasi Prant Surat is therefore directed not to initiate any proceedings under section 84 C of the Bombay Tenancy and Agricultural Lands Act 1948 rule is made absolute accordingly with costs. .