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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, J.
SHRI KHODALDHAM TRADERS – Petitioner
Versus
STATE OF GUJARAT – Respondent
Special Civil Application No. 3635 of 2023
Decided On : 23-03-2023
Code - Government Land - 61, 79A - The court dismissed the petition to quash notices issued under Section 202 of the Bombay Land Revenue Code, 1879, as the petitioner was occupying Government land and no interference was required. The court referred to Sections 61 and 79A of the Code, which provide for penalties for unauthorized occupation of land and summary eviction of persons wrongfully in possession of land, respectively. The court highlighted that these provisions would not be applicable when the person occupying the land is on Government land.
Fact of the Case:
The petitioner, a proprietorship firm, was in possession of a portion of Government land and received notices to remove unauthorized construction. The petitioner claimed to have acquired the land through an agreement for sale and possession agreement.
Finding of the Court:
The court found that the land in question was Government land, and the petitioner's occupation was not disputed. The court held that no interference was required in the eviction process initiated by the respondent No. 2.
Issues: The main issue was whether the notices issued under Section 202 of the Code to evict the petitioner from the Government land were valid.
Ratio Decidendi: The court referred to Sections 61 and 79A of the Code, highlighting that these provisions would not be applicable when the person occupying the land is on Government land. The court also cited the decision of the Full Bench in the case of Government of Gujarat vs. Amraji Motiji Thjakor, emphasizing that a notice under Section 202 does not in itself account to a decision or order of eviction of a person wrongfully in possession of land, but is only a mode of enforcement of such decision or order recorded under the substantive provisions of the Code or any other Act for the time being in force conferring power on the Collector to evict such person.
Final Decision: The petition was dismissed as the court found no merit in interfering with the eviction process initiated by the respondent No. 2.
ORDER :
1. Heard learned advocate Mr.Bhaumik Dholariya for the petitioner and learned Assistant Government Pleader Mr.Krutik Parikh for the respondent-State who appears on advance copy.
2. By this petition under Article 226 of the Constitution of India, the petitioner has prayed to quash and set aside the notices dated 8th February, 2023 issued by the respondent No. 2-City Mamlatdar, Asarwa purportedly under Section 202 of the Bombay Land Revenue Code, 1879 (for short ‘the Code’).
3. The brief facts of the case are as under:
3.2. It is the case of the petitioner that Survey No. 826/1 of Moje: Naroda, Taluka: Asarwa, District: Ahmedabad originally was 10 Acre 34 Gunthas of land. One Munir Abdul Hussein Jivabhai purchased half of the land admeasuring 5 Acre 17 Gunthas from Survey No. 826/1 by registered sale-deed dated 18.02.1941. It is the case of the petitioner that Entry No. 2493 came to be mutated recording the said transaction on 09.03.1941. As there was mistake in mentioning name of Abdul Hussein, Entry No. 4726 came to be mutated correcting name as Munir Abdulhusen Jivabhai in the land bearing Survey No. 826/1 and other lands. Munir Abdul Hussein passed away on 16.04.1968 and on his death, heirship Entry NO. 7390 came to be mutated on 23.08.1971 mutating the names of heirs of Munir Abdul Hussein.
3.3. It is the case of the petitioner that Jibaben Nathaji, the daughter of Detarji was tenant of the rest of the land admeasuring 5 Acre 17 Gunthas and her name came to be mutated pursuant to the Entry No. 8763. Jibaben Nathaji passed away on 29.03.1998 and upon her death, heirship Entry No. 10133 came to be mutated entering her heirs Aataji Bhalaji and Pashaben Bhalaji.
3.4. It is the case of the petitioner that the proceedings under the Gujarat Tenancy and Agricultural Lands Act, 1948 (for short ‘the Tenancy Act’) were initiated and part of Survey No. 826/1 to the extent of 5 Acre 17 Gunthas was found to be in breach of provisions of the Act, 1948 and therefore was ordered to be entered in the name of the Government.
3.5. It is the case of the petitioner that the petitioner has come across such proceedings whereby the Mamlatdar and ALT City in Ganot Case No. 31 of 1989 vide order dated 01.04.1991 held Karsanji Thakarshi Sukhadiya as the tenant and also fixed the price in his favor and granted the same land to him by fixing the price with restricted tenure land. The petitioner further came to know that the heirs of deceased Nasim Munir challenged the said order dated 01.04.1991 passed by the Mamlatdar and ALT City in Ganot Case No. 31 of 1989 by preferring Tenancy Appeal No. 29 of 2003 before the Deputy Collector (Land Reforms and Appeal), Ahmedabad.
3.6. The Deputy Collector (Land Reforms and Appeal), Ahmedabad vide order dated 27.07.2004 set aside the said order dated 01.04.1991 and the said proceeding was not carried further and attained finality.
3.7. It is the case of the petitioner that Mansukhbhai Dahyabhai Radadiya appraised the petitioner that the heirs of the original owner viz. heirs of deceased Bashir Munir Ahemadi, heirs of deceased Zahir Munir Ahemadi, Farzaben Munirbhai and heirs of Nasim Munir Ahemadi transferred 21701 square meters (25954 square yards) of the land bearing Survey No. 826/1 paiki in favor of Mansukhbhai Dahyabhai Radadiya in October, 2004 and the petitioner was informed that a Development Agreement dated 16.10.2004 was also executed by the aforesaid heirs of the original owner in favor of Mansukhbhai Dahyabhal Radadiya.
3.8. The petitioner purchased a portion of land admeasuring 1264 square yards situated on northern side adjacent to Kharicut Canal Road from Survey No. 826/1/1 of Moje: Naroda, Taluka: Asarwa, District: Ahmedabad from Mansukhbhai Dahyabhai Radadiya through Sale Agreement dated 15/18.12.2018 by paying consideration of Rs.88,48,000/-. In ad
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