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2011 Supreme(Guj) 455

2011(3) GLR 2587
IN THE HIGH COURT OF GUJARAT
S. J. Mukhopadhaya, J. B. Pardiwala,JJ.
RAMESHBHAI AMBALAL SHAH
Versus
STATE OF GUJARAT & ANR.
Letters Patent Appeal No. 602 of 2011 in Spl.C.A. No. 13099 of 1994 with C.A. No. 4467 of 2011.
Decided on: 8-8-2011

Advocates Appeared:
S. N. Shelat, Sr. Counsel for P. R. Thakkar, for Appellant Nos. 1, 1.2.1, 1.2.2 and 1.2.3.
Ms. Manisha Lavkumar Shah, A.G.P., for Respondent No. 1.
N. D. Nanavati, Sr. Counsel for B. C. Dave, for Respondent No.2.

Headnote:

Constitution of India, 1950 - Articles 226 and 227 - Bombay Tenancy and Agricultural Lands Act, 1948, Sections 63 and 84-C - Mutation entry in respect of sale transaction was certified of sale was declared illegal by on ground that purchaser was not an agriculturist as he was not holding land - Single Judge set aside order of declaration on ground that there was delay - Restoration of possession to vendor when transaction of sale is declared invalid on ground that purchaser was not an agriculturist in that state - Held, Order of Single Judge proper and affirmed - vendor cannot claim restoration of possession because was a party to that illegality and cannot be allowed to take advantage of his own wrong - Concept ofin pari delictoin explained - Appeal dismissed

JUDGMENT

J. B. PARDIWALA, J. In this appeal, the appellants-original respondent Nos. 2/1 to 2/3 seek to challenge the judgment anti order dated 8-3-2011 passed by the learned Single Judge in Special Civil Application No. 13099 of 1994 whereby, the learned Single Judge allowed the petition preferred by the respondent No.2 herein by quashing and setting aside order dated 19-8-1994 passed by the Gujarat Revenue Tribunal, Ahmedabad, order dated 31-1-1990 passed in appeal by the Deputy Collector, Land Revenue (Appeal), Gandhinagar and order dated 3-12-1985 passed by the Mamlatdar and A.L.T., Gandhinagar.

2. Facts relevant for the purpose of deciding this appeal can be summarized as under :

2.1. Land bearing Survey Nos. 73/1 and 73/2 of village Bhat, District : Gandhinagar was purchased by respondent No.2 herein from the appellants herein by a registered sale-deed dated 6-5-1970. Revenue entries in this regard were mutated in the record of rights and certified by the revenue authorities on 28-10-1972. On the premise that respondent No. 1 herein original petitioner is not an agriculturist, as he owns land in Rajasthan and not in the State of Gujarat, the transaction of 1970 was taken up in suo motu review in purported exercise of powers under Sec. 84C of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short 'the Act') by the Mamlatdar and A. L. T., Gandhinagar in the year 1985.

2.2. The Mamlatdar and A.L.T., Gandhinagar declared the sale of 6-5-1970 as illegal being in breach of the provisions of Sec. 63 of the Act vide order dated 3-12-1985.

2.3. Aggrieved by the said order passed by the Mamlatdar and A.L.T., Gandhinagar, respondent No.1 herein preferred Appeal No.7 of 1987 before the Deputy Collector, Land Revenue (Appeal), Gandhinagar. The Deputy Collector a1so dismissed the appeal confirming the order passed by the Mamlatdar and A.L.T., Gandhinagar. Thereafter, respondent No.1 preferred revision before the Gujarat Revenue Tribunal and the Tribunal also rejected the revision application vide order dated 19-8-1994 confirming the orders passed by the Mamlatdar and Deputy Collector.

2.4. It is at this stage that respondent No. 1-original petitioner hid to come before this High Court by way of Special Civil Application No. 13099 of 1994 challenging the orders passed by the revenue authorities declaring the transaction of the year 1970 as hit by the provisions of Sec. 63 of the Act.

2.5. The learned Single Judge vide judgment and order dated 8-3-2011 took the view that there was gross delay at the end of the revenue authorities in taking the transaction of 1970 in suo motu review in purported exercise of powers under Sec. 84C of the Act on the ground that respondent No. 1 herein could not have purchased agricultural land in Gujarat as he was not an agriculturist insofar as the State of Gujarat is concerned, though he had agricultural land in the State of Rajasthan. The learned Single Judge took the view that the Mamlatdar and A.L.T., Gandhinagar ought to have exercised suo motu powers under Sec. 84C of the Act within reasonable time and as powers have been exercised after an unreasonable delay of 13 years, the learned Single Judge thought it fit to quash the orders. This is how the petition came to be allowed.

2.6. Very interestingly, the original owners of the property from whom respondent No. 1 purchased the land, are here in this appeal challenging the judgment and order passed by the learned Single Judge. The intention appears to be very clear. The appellants herein, who are the legal heirs of the original owner from whom respondent No. 1 purchased the land, want the land back on the ground that the sale of 1970 was not legal as the same was hit by the provisions of Sec. 63 of the Act.

2.7. While deciding Letters Patent Appeal No. 433 of 2011, this Court was constrained to observe that many persons like the present appellants have started abusing the process of law by taking undue advantage of such proceedings of the present nature
































































































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