2013 Supreme(Guj) 531

Gujarat High Court
Hon’ble Mr. Justice Rajesh H. Shukla
Trustnagar Co-operative Housing Society Ltd.
Versus
Musamiya Imam Haider Bax Razvi & Ors.
Special Civil Application No. 1035 of 20001—Decided on 27/12/2013

Point in Issue :
Whether order of Deputy Collector and Deputy Secretary (Appeal) Revenue Department that petitioner society was unauthorised holder or land sustainable.

Headnote:Head Note :

       Constitution of India, 1950 — Articles 14, 19, 300-A, 226 and 227 — Bombay Land Revenue Code, 1879 — Bombay Tenancy and Agricultural Lands Act, 1948 — Sections 63, 64-A, 27 — Gujarat Deveasthan Inam Abolition Act, 1909 — Section 4(11)(c) — Gujarat Town Planning and Urban Development Act, 1976 — Notification/circular dated 21.07.1967 providing areas reserved for non-agricultural and industrial development — Declaration/order that the petitioner society is an unauthorised holder of land — Prayer to quash and set aside declaration/order — Scope — The provisions of Section 64-A of Bombay Tenancy Act read with the circular dated 21.07.1967 makes the position clear that the transaction of either out right purchase of the land in question by the petitioner society of Special Application No. 1150/2000 and Special Application No. 1161/2000 is much before the Abolition Act came and the purchase of tenancy right by petitioner society in Special Civil Application No. 1035/2000 would not be hit by the provisions of Section 63 of Bombay Tenancy Act and in that view by Section 64-A Bombay Tenancy Act read with the circular — Further the petitioner society in Application No. 1035/2000 has also purchased the tenancy rights by registered sale deed and as provided in definition of authorised holder the petitioner society is very much in possession and exception of land in question — The said occupation and the title of the petitioner society can not be said to be illegal — In fact permission was required which has also been obtained and the construction and development has taken place over the earlier — Therefore considering the relevant provisions and statutes coupled with passage of time resulting into a irreversible situation same can not be said to be illegal and present petitions are therefore allowed setting impugned order orders of Deputy Collector and Deputy Secretary (Appeal) Revenue Department in all applications.

       Held :

       The provisions of Section 64-A of the Bombay Tenancy Act read with the Circular dated 21.7.1967 at Annexure-B in Special Civil Application No. 1158 of 2000 would make the position clear that the transaction of either outright purchase of the land in question by the Petitioner Society of Special Civil Application No. 1158 of 2000 and Special Civil Application No. 1161 of 2000 is much before the Abolition Act came and the purchase of tenancy right by the Petitioner Society in Special Civil Application No. 1035 of 2000 would not be hit by the provisions of Section 63 of the Bombay Tenancy Act, and in view of the aforesaid Section 64-A of the Bombay Tenancy Act read with the Circular. In fact the Circular is specifically issued for clarification to avoid further proceedings under Section 84C. Therefore, when such transaction, as discussed above has taken place, it would not attract the provisions of the Bombay Tenancy Act coupled with the fact that in case of the Petitioner — Society in Special Civil Application No. 1158 of 2000 and Special Civil Application No. 1161 of 2000, the permission under Section 63 has also been granted. There is hardly any substance in the submissions made by learned AGP, and the order, which referred to this aspect, cannot be sustained. Further, the Petitioner Society in Special Civil Application No. 1035 of 2000 has also purchased the tenancy right by registered sale deed, and, as provided in the definition of the ‘Authorized Holder’ and the ‘Inferior Holder’, the Petitioner Society is very much in possession and occupation of the land in question.

        [Para 15]

       When the NA permission has been granted and when the land is covered under the municipal area and also the TP Scheme, the impugned orders cannot be sustained on the ground of any breach or violation of either the Abolition Act or the Bombay Tenancy Act. In fact, at the most, what was required, was the permission, which, as stated above, has also been obtained, and the construction and development has taken place over the years. Further, the occupation and the title of the Petitioner Society cannot be said to be illegal, and at the most, it was subject to some permission and procedure under the Bombay Tenancy Act, which has also been granted to the Petitioner Society in Special Civil Application No. 1158 of 2000. [Para 15]

       Therefore, considering the aforesaid provisions and the aforesaid statutes coupled with the passage of time resulting into a irreversible situation, which has emerged, which cannot be said to be illegal, the present petitions deserve to be allowed, and accordingly stands allowed. The impugned orders passed by the Deputy Collector and the Deputy Secretary (Appeals), Revenue Department at Annexure-A and Annexure-B in Special Civil Application No. 1035 of 2000, are hereby quashed and set aside. Similarly, the impugned orders passed by the Deputy Collector and Deputy Secretary (Appeals), Revenue Department at Annexure-N and Annexure-O in Special Civil Application No. 1158 of 2000 as well as the impugned orders passed by the Deputy Collector and the Deputy Secretary (Appeals), Revenue Department at Annexure-B and Annexure-C in Special Civil Application No. 1161 of 2000, are hereby quashed and set aside. [Para 16]

       Law Laid Down :

       When the land is included in the T.P. Scheme or NA Permission is granted the provision of Section 63 of the Bombay Tenancy Act would not be attracted.