1996 Supreme(Guj) 408

Gujarat High Court
Judgename :A.N.Divecha
Nathubhai Meraman Darji - Appellant
Versus
Special Secretary (Appeals) - Respondent
S.C.A. 3111 of 1993
Decided On : 08/23/1996

Headnote:(a) Saurashtra Gharkhed Tenancy Settlement and Agricultural Laws Ordinance Act, 1949 - Sec. 54 - Bar on transfer of agricultural land in favour of non-agriculturist - Plea of - No such plea taken either before Assistant Collector nor before Collector - Plea raised for the first time in revision before Special Secretary (Appeals) Revenue Respondent No. 1 - Held, it was a question of fact therefore, plea in that regard could not have been taken for the first time in revision before respondent No. 1 - That apart whether transaction was in contravention of the statutory provision has to be decided in accordance with provision contained therein & not in collateral RTS proceedings. Evergreen Apartment Co-operative Housing Society Ltd. vs. Special Secretary (Appeals), Revenue Department, 1991 (1) GLH 155 referred in support.So far as the finding that the petitioner was not an agriculturist is concerned, the plea in that regard appears to have been taken for the first time in revision before respondent No. 1. It was taken neither before respondent No. 3 nor respondent No. 2 as transpiring from their respective orders at Annexures-B and D to this petition. Whether or not the petitioner was an agriculturist was a question of fact. The plea in that regard could not have been taken for the first time in revision before respondent No. 1.[Para 4]The sale in favour of a non- agriculturist is hit by Sec. 54 of the Ordinance. Whether or not the sale transaction between the parties was in contravention of the aforesaid statutory provision has to be decided in accordance with the provisions contained therein. It could not be decided in collateral proceedings popularly known as the RTS Proceedings.[Para 5](b) Constitution of India, 1950 - Art. 226 - Sale of a agricultural land - Proceeding challenging legality of sale - Collector respondent No. 2 indicated that decision of Civil Court in suit filed by Respondent No. 5 in this regard will be binding to the parties - Held, no interference in that order is called for - Ratilal Chunilal Solanki vs. Shantilal Chunilal Solanki, 1996 (2) 37 (2) GLR 525 referred in support.It is not in dispute that respondent No. 5 has filed Civil Suit No. 244 of 1990 in the Civil Court at Veraval for challenging the legality of the sale deed executed by his grandfather in favour of the present petitioner. By his order at Annexure-D to this petition, respondent No. 2 has clearly indicated that the decision of the Civil Court in the aforesaid suit proceeding will be binding to the parties. In that view of the matter, the interference with that order at Annexure-D to this petition passed by respondent No. 2 herein was not called for.[Para 7](c) Bombay Land Revenue Code, 1879 - Secs. 135(c) & 135(d) - Mutation in record of rights - Set aside on the ground that no notice under Sec. 135D was served on the executant of the sale deed - It is admitted position that petitioner purchased disputed land from deceased by means of registered sale deed - He was therefore, not required to follow the procedure of Sec. 135D - Assistant Collector respondent No. 3 was therefore, not justified to set aside sale on that ground.It is an admitted position on record that the petitioner purchased the disputed land from the deceased by means of a registered sale deed. He was therefore not required to report that transaction to the Village Accountant. The Village Accountant was required to take note of that transaction on account of its registration according to the Indian Registration Act, 1908. In that case, the question of following the procedure of Sec. 135-D of the Code would not arise when a transaction is represented by a registered document, its suo motu cognizance is required to be taken by the Village Accountant for the purpose of its mutation in the concerned revenue record. If that transaction is disputed, the disputing party will have to approach the competent civil Court for annulling or avoiding such transaction as provided in Sec. 31 of the Specific Relief Act, 1963. It would not be open to him to dispute the validity of the transaction in what is popularly known as the RTS proceedings. I think respondent No. 3 was not justified in setting aside the entry at Annexure-A to this petition on the ground that the required notice under Sec. 135-D of the Code was not served to the deceased. I am of the opinion that the deceased was not required to be served with the notice under the said statutory provision.[Para 8](d) Gujarat Land Revenue Rules, 1972 - Rule 108(6) - Power under - Exercise of - Power under rules are exercisable by State Government & not by any inferior officer - In the case impugned order B dated 28.2.1991 passed by Assistant Collector was without jurisdiction.Respondent No. 3 had no jurisdiction to decide the matter by his order at Annexure-B to this petition in view of the ruling of this court in the case of Kalpataru Land Development Pvt. Ltd. vs. Assistant Collector, Surat, reported in 1996 (2) 37 (2) GLR at pag 600. It has been held therein that the powers under Rule 108(6) of the Rules are exercisable by the State Government and not by any inferior officer like the Assistant Collector or the Deputy Collector. The aforesaid ruling of this court is in all fours applicable in the present case. It is obvious that the order at Annexure-B to this petition was passed by respondent No. 3 in his capacity as the Assistant Collector in exercise of revisional jurisdiction under Rule 108(6) of the rules. He could not have done so[Para 9]