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2006 Supreme(Guj) 539
Gujarat High Court
Judgename :JAYANT PATEL
ABHESINH MOHANSINH - Appellant
Versus
STATE OF GUJARAT - Respondent
Special Civil Application 8152 Of 1997
Decided On : 08/30/2006
Headnote:
Bombay Tenancy and Agricultural lands Act – Section 63 – Constitution of India – Article 227 – Order of cancellation of entry in mutation – Dismissal of Appeal – Petitioner sold the land vide register sale-deed in favour of respondents No. 2 to 3 on 16the mutation entry was recorded in the revenue record and the same was certified – Assistant Collector thereafter on 9/11/1990 after period of about 7 years issued a show-cause notice taking the said entry in revision on the alleged ground that the transfer was in violation of the provisions of Section 63 of Bombay Tenancy and Agricultural lands Act (hereinafter to be referred to as the act ) stating that the purchaser was not the agriculturist. It appears that on 28/2/1991, the Assistant Collector passed the order to cancel the entry No. 2366 in R. T. S. proceedings and he also consequently passed the order of declaring the transaction – Matter was carried in appeal by the respondents No. 2 to 4 before the Collector against the order of the assistant Collector cancelling the entry – Held, When the authority under the Act has held the transaction as valid; it hardly lies in the mouth of the seller who is party to the transaction to contend that the transaction be declared invalid, more particularly, when he has enjoyed the benefit of the transaction by pocketing the consideration long back and he has lost the remedy even by filing civil suit or declaration that the transaction is null and void or illegal. The remedy of getting back the land which is not permissible directly, cannot be allowed to be done indirectly by invoking the jurisdiction of this Court under Article 227 of the Constitution. Therefore, the distinction as sought to be canvassed on behalf of the petitioner is ill-founded and is of no help to the petitioner – There was delay of seven years. Such exercise of the discretion by the Tribunal for quashing of the proceedings under the Act on the ground of delay of seven years after the land was transferred, cannot be said as having committed any jurisdictional error, nor exercise of discretion can be said as perverse in any manner. On the contrary even as per the settled legal position, the tribunal as rightly quashed the proceedings on the ground of delay and latches – It may be recorded that while considering the matter on the aspects of delay and the initiation of the proceedings after a lapse of unreasonable period, the Tribunal has relied upon the decision of the Apex Court in case of Raghavnatha v. State of Gujarat, reported at A. I. R. 1969 SC 1297 (sic), as well as, other decisions of this Court and therefore, if the Tribunal has exercised the power by following decisions of the Apex court as well as of this Court, the same are in conformity with the principles of judicial discipline – It cannot be said that any error is committed by the Tribunal which deserves to be interfered with by this court in exercise of powers under Article 227 of the Constitution – Petition dismissed. (Paras 7,8 and 9)
( 1 ) WITH the consent of learned Advocate appearing for both the sides, the main special Civil Application itself is taken up for final hearing.
( 2 ) THE short facts of the case are that the petitioner sold the land vide register sale-deed in favour of respondents No. 2 to 3 on 16/5/1983. On 9/12/1983 the mutation entry No. 2366 was recorded in the revenue record and the same was certified on 2/6/1984. The Assistant Collector, Olpad thereafter on 9/11/1990 after period of about 7 years issued a show-cause notice taking the said entry in revision on the alleged ground that the transfer was in violation of the provisions of Section 63 of the Bombay Tenancy and Agricultural lands Act (hereinafter to be referred to as the act ) stating that the purchaser was not the agriculturist. It appears that on 28/2/1991, the Assistant Collector passed the order to cancel the entry No. 2366 in R. T. S. proceedings and he also consequently passed the order of declaring the transaction. The matter was carried in appeal by the respondents No. 2 to 4 before the Collector against the order of the assistant Collector cancelling the entry. However, ultimately on 19/9/1991, the collector dismissed the appeal.
( 3 ) IT appears that thereafter the mamlatdar and A. L. T. initiated the proceedings under Section 84 C of the Act, and ultimately, on 24/2/1992 the order passed by the Mamlatdar and A. L. T. permitting the restoration of the land, failing which it was ordered that the land shall be forfeited to the State Government. It appears that the respondents No. 2 to 4 also preferred writ petitions before this court being Special Civil Application no. 2367 of 1992 after the order passed by the Mamlatdar. However, as the alternative remedy was available, this Court did not entertain the petition vide order dated 3/4/1992. The respondents No. 2 to 4 thereafter preferred the appeal against the order of the mamlatdar and A. L. T. under Section 84 C of the Act before the Assistant Collector and on 19/5/1992, the Assistant Collector dismissed the appeal. The matter was thereafter carried before the Revenue tribunal in revision and Revenue Tribunal ultimately passed the judgment and order dated 4/5/1997 whereby the revision is allowed and the order of the Mamlatdar as well as the Assistant Collector in appeal are quashed and set aside and it is under these circumstances, the petitioner has approached to this Court by preferring the present petition.
( 4 ) I have heard Mr. Mehta, learned counsel appearing for the petitioner and ms. Patel, learned A. G. P. for respondents no. 1 and 5 and learned Advocate, mr. Kharadi for private respondents.
( 5 ) AS such, it appears that the original petitioner transferred the land in favour of respondents No. 2 to 4 by receiving the consideration and the petitioners are party to the said transaction of sale. In Special civil Application No. 4647 of 2005, this court had an occasion to consider the question as to whether the seller of the property who is party to the transaction of the sale-deed after having pocketed the consideration would be entitled to invoke the jurisdiction of this Court under Article 227 of the Constitution or not and this court in its judgment dated 18/3/2005 observed inter alia as under. "in any case, the State has not preferred petition before this Court and the petitioner s father who was party to the transaction, as such, cannot be said to be aggrieved by the decision of the State government. So will be the case, in the event, the petitioners are representing the interest as legal heirs of the party to the transaction. One who is a beneficiary of the transaction, once having taken benefit, cannot be allowed to contend that the transaction is illegal or is in contravention to statutory provision and, therefore, even though he has enjoyed the benefit of transaction, the property, which is already sold, should be given back to him or should be taken away by the statutory authority. At t
