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2008 (2) GCD 1324 (Guj)
Hon’ble Mr. Justice K.M. Thaker
Patel Rameshbhai Ramabhai & Anr. [Kheda]
Versus
State of Gujarat & Anr.
Special Civil Application No. 7124 of 1997—Decided on 15/01/2008
Bombay Tenancy & Agricultural Lands Act—Section 32, 43, 84(c)—Initiation of proceedings under Section 84(c)—Delay in—Effect of
Head Note :
Bombay Tenancy and Agricultural Lands Act, 1948 (Central Act 67 of 1947)—Section 32, 43 and 84(c)—Initiation of proceedings under Section 84(c)—Delay in—Effect of—Father given his part of land to his son by way of family arrangement—Said arrangement came to be recorded by way of mutation in June, 1976—Proceedings under Section 84(c) were commenced in the year 1985 after delay of almost 9 years—This is not case where authorities alleged any fraud—No allegations of fraud on part of petitioners—Deputy Collector while exercising suo motu power under Section 76(A) disregarded the statements and readiness of Petitioner No. 2 without any justifiable reason—Petitioners are not only in possession but Petitioner No. 1 continues to cultivate the land in question personally—Held, initiation of proceedings under Section 84(c) suffers the vice of inordinate delay impugned orders are set aside.
Held :
In the present case, it is not in dispute that it is actually the father who has given his part of the land to his son by way of family arrangement. It is also not in dispute that the said arrangement between the father and son came to be recorded in Form No. 6 by way of mutation Entry No. 951 in June 1976 and the name of Petitioner No. 1 was mutated with reference to the land bearing Survey No. 224. It is also not in dispute that the proceedings under Section 84(c) were commenced in the year 1985. Thus, there has been a delay of almost 9 years in commencing the said proceedings. It is also relevant to note this is not the case where authorities allege any fraud. There are no allegations of fraud on part of petitioners. It is pertinent to note that when the petitioners understood the position then immediately during the proceedings before the Deputy Collector, they had offered to restore original position and the Deputy Collector has recorded the said aspect in his order. [Para 11]
There has not been any fraud or misrepresentation or suppression by the petitioners. However, while passing the orders, the authority has disregarded the aforesaid aspects and the Deputy Collector while exercising suo-motu powers under Section 76(A) disregarded the statements and readiness of Petitioner No. 2 without any justifiable reason. [Para 13]
K.M. Thaker, J.—Mr RA Patel, Advocate for petitioner, made request for leave to amend. Granted. Accordingly, Para-1 of petition is amended.
2. The petitioners have preferred present petition against the order passed by the Mamlatdar-ALT being order dated 26.11.1990 and order dated 08.09.1992 passed by the Deputy Collector as well as order dated 13.02.1997 passed by the Gujarat Revenue Tribunal. The petitioners have also challenged order dated 22.04.1997 passed by the Gujarat Revenue Tribunal in review application preferred by the petitioners against the earlier order dated 13.02.1997.
3. The only ground, on which the petitioners have preferred present petition against the aforesaid orders is that the action initiated by the respondents against the action of Petitioner No. 2 of family arrangement, was initiated after inordinate delay of almost 9 years and, therefore, the said action and subsequent actions are hit by the vice of delay and, therefore, are unsustainable.
4. The facts, which have been stated by the petitioners in support of the grounds of the petition and reliefs prayed for therein, are as follows:—
4.1. The dispute in present petition is related to Survey No. 224 and Survey No. 225 of village Ahima, Taluka Anand admeasuring about 10 Acres and 75 Gunthas and 2 Acres and 1 Guntha, respectively. The petitioners have stated that the father of Petitioner No. 2 was, since 1940-41, tenant of the land in question and subsequently, the said land was purchased by the father of Petitioner No. 2 under Section 32 of the Bombay Tenancy and Agricultural Lands Act. The father of Petitioner No. 2 purchased the said land somewhere in the year 1966 and thereafter, he was cultivating the said land.
4.2. When the father of the Petitioner No. 2 purchased the said land, it was subjected to the statutory restrictions under Section 43 of the Act.
4.3. The father of the Petitioner No. 2 continued to cultivate the land in question and after sometime, the Petitioner No. 2 continued to cultivate the land in question. In other words, the petitioners have contended that the land in question was being personally cultivated by the father of the Petitioner No. 2 and thereafter by Petitioner No. 2. The Petitioner No. 2, after cultivating the land in question for sometime, i.e. for about 10 years, found himself unable to continue the cultivation activities personally in respect of the entire holding i.e. aforesaid two survey numbers being Survey No. 224 admeasuring 10.75 and Survey No. 225 admeasuring 2.01 and that, therefore, he handed over the land bearing Survey No. 224 to his son i.e. the Petitioner No. 1 herein.
4.4. In view of the said action of the Petitioner No. 2, a mutation entry being Entry No. 951 came to be made in Form No. 6 on 22.06.1976. As per the said entry, the name of Petitioner No. 1 i.e. son of the Petitioner No. 2 was mutated against the Survey No. 224 admeasuring 10.75.
4.5. It is the case of the petitioners that the Petitioner No. 1 continues to personally cultivate the said land. The further case of the petitioners is that despite the fact that the aforesaid was a family arrangement and the action was taken by way of internal arrangement between the father and son which did not amount to sale or distribution and/or partition and did not constitute violation of Section 43, suddenly, after lapse of almost 9 years since the entry came to be mutated a notice came to be issued by the respondents against the petitioners’ alleging breach of Section 43.
4.6. The petitioners have further submitted that upon receipt of the said notice, the petitioners had remained present before the Mamlatdar-ALT and during the hearing the petitioner were told that the action of the Petitioner No. 2 amounted to breach of Section 43 and the authority also directed the petitioners to hand over the possession to the State Government. The petitioners have submitted that they explained the facts to the said authority, however, the explanation was not ac
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