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Gujarat High Court
Judgename :R.S.GARG
PADMINIKUMARI MINOR THRO HER GUARDIAN KRISHNAKUVARBA - Appellant
Versus
STATE OF GUJARAT - Respondent
CIVIL APPLICATION 6591 Of 2007
Decided On : 04/08/2007
(a) Gujarat Agricultural Land Ceiling Act, 1971 - Section 8 - Bar on transfer after specified date - Whether agreement to transfer amounts to transfer - Held, no - Agreement to transfer not to be treated as transfer - Impugned order of Deputy Collector refusing to entertain transaction upheld.
Held :
A fair reading of Section 8(1) would make it clear that the ban is against every type of transfer. The transfer may be by way of sale, gift, mortgage with possession, exchange, lease, surrender or otherwise or a partition of any land. Transfer, in fact, would have two components, transfer of the possession and transfer of the title, including rights and interest in the property. When somebody enters into an agreement to sell or purchase any property, then such agreement becomes a contract which is enforceable under the law and the party holding benefit under the contract is entitled to go to the Civil Court for performance of the contract for recession of the contract or revocation of the contract. In such a case, Court of competent jurisdiction would decide whether such contract should be enforced specifically or not. In case, Court grants a decree for specific performance of the contract, then, such person would be entitled to a sale-deed in his favour and if he does not happen to be in possession, he would also be entitled to a decree for possession. If such a suit is dismissed, then, agreement to sell would lose all its importance and would not carry any meaning. An agreement simply confers certain rights upon the purchaser so also on the seller, but that does not transfer the right, title and interest in the property. In the opinion of this Court even if the agreement was entered into on 08.05.1970, the sale agreement would not amount to a transfer and under such circumstances, the petitioner would not be entitled to submit before this Court that the transfer was effected before 24.01.1971 and under the circumstances, Section 8 was not to apply. This question is being raised for the first time before this Court, but unfortunately, was not raised before the subordinate authorities/ Tribunal. [Para 13]
Head Note :
(b) Constitution of India, 1950 - Article 227 - Petition under - Issues not raised in subordinate forum - First time raised before High Court - Practice deprecated - Practice and Procedure.
Held :
In a petition under Article 227 of the Constitution of India, High Court has to exercise its powers of superintendence and not powers of appellate or revisional Court. Any person aggrieved by some order is required to satisfy the Court that the orders suffers with patent illegality, latent defect either on face or on the procedure and the error is apparent on the face of the records. If particular question was never raised and argued before the Tribunal, then the order passed by the Tribunal cannot be condemned on such a ground. Even otherwise, this Court in exercise of its jurisdiction under Article 227 of the Constitution of India, is not required to correct every error of law. The High Court is required to correct those errors which lead to illegality and cause injustice to the party. If a particular question was not raised before the subordinate Tribunal then courtesy demanded that such question should be argued before the High Court with the permission of the Court. [Para 9]
Case Referred :
Lajjashanker Keshavji Joshi vs. State of Gujarat, 1985 (2) GLR 658.
Decided in Favour of :
Respondent
Petition Dismissed
( 2 ) BY this petition under Article 227 of the Constitution of India, the petitioner seeks to challenge the correctness, validity and propriety of the order dtd. 10/8/1981, passed by the Dy. Collector in Ceiling Case NO. 16 of 1981 (Sec. 8) refusing to accept the transaction of sale wherein, agreement to sell was entered on 8/5/1970 and the sale deed was executed on 28/4/1972 and; order dtd. 8/7/1999 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN/ba/428/93.
( 3 ) SHORT facts necessary for disposal of the present matter are that one Natvarsinhji Sartansinhji was holding 90 Acres and 20 Gunthas (it could be 26 Gunthas even) land at Kathwada in Prantij Taluka of Sabarkantha District. The case of the petiioners is that they agreed to sell the property in favour of Bhavansinh Dipsinh Rahevar on 8/5/1970 with a stipulation that 33 Acres and 26 Gunthas of land would be sold to the said purchaser. Agricultural Land Ceiling Act earlier provided larger limit of the agricultural land, but the Government of Gujarat decided to reduce it, therefore, an amendment was made in the year 1972. The Government of Gujarat passed Act No. 2 of 1974 and made it effective from 1/4/1976. Sec. 8 of Act No. 2 of 1974 provided that any transaction in relation to the land whereunder, the land is transferred in favour of transferee, if is made between 24/1/1971 and 1/4/1976, then such transaction would be deemed to have been taken to defeat the provisions of the Act, unless on an application under Sec. 8 of the Act, the Competent Authority holds that such transfer was bonafide.
( 4 ) THE sale deed was executed on 28/4/1972 and Mutation Entry No. 208 was made on 20/5/1972. After coming into force of Act No. 2 of 1974, petitioners predecessor-in-title namely Natvarsinhji made an application under Sec. 8, the Dy. Collector made an inquiry and rejected the said application vide his order dtd. 4/5/1977. Being aggrieved by the said order, Natvarsinhji filed Revision Application No. 699 of 1977 before the Gujarat Revenue Tribunal, the said revision was allowed by the Gujarat Revenue Tribunal vide its order dtd. 16/1/1978 and the matter was remanded to the Dy. Collector for making an inquiry afresh and deciding the matter in accordance with law.
( 5 ) AFTER the remand, the Dy. Collector registered the matter as Case No. Ceiling/sec. 8/60/81 and provided appropriate opportunity of leading evidence and hearing to the parties. On 26/7/1978, the parties closed their evidence and thereafter the matter was adjourned for one reason or the other. The application filed under Sec. 8 was dismissed vide order dtd. 10/8/1981. The original holder namely Natvarsinhji died on 30/12/1981, therefore, the present petitioners being successors and legal representatives of Natvarsinhji filed Revision Application No. TEN/ba/428/93 before the Gujarat Revenue Tribunal, the said Revision came to be dismissed on 8/7/1999, being aggrieved by the said orders, the petitioners are before this Court.
( 6 ) IT is to be noted that present writ application came to be filed in the year 1999 with two Annexures, copy of the order dtd. 10/8/1981 passed by the Dy. Collector, Sabarkantha (Annexure-A) and copy of the order dtd. 8/7/1999 passed by the Gujarat Revenue Tribunal (Annexure-B ). For almost about eight years, nothing was done and all of a sudden, on the eve of the arguments, Mr. J. M. Patel, appeared for the petitioner and filed an application dtd. 3/5/2007 seeking amendment. The original petition runs into 14 pages and the amendment application runs into 28 pages. Along with the amendment application, certain documents have been filed which include agreement dtd. 8/5/1970, copy of the sale deed dtd. 20/4/1972, copy of the order passed by the Gujarat Revenue Tribunal on 16/1/1978, copy of the statement of Natvarsinhji Sartansinhji dtd.
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