DAYALJINAGAR CO-OP HOUSING SOC LTD & 1 v. STATE OF GUJARAT & 1

================================================================ Appearance: MR DHIRENDRA MEHTA, ADVOCATE for the Petitioner(s) No. 1 - 2 Mr.Devnani, AGP for the Respondent(s) No. 1 - 2 ================================================================ CORAM: HONOURABLE MR.JUSTICE JAYANT PATEL Date : 19/12/2012 ORAL JUDGEMENT

The present petition is directed against the C/SCA/4386/2000 JUDGEMENT order passed by the Deputy Collector, Collector and the State Government in exercise of Bombay Land Revenue Code, 1879, whereby entry No.919 dated

05.02.1990 has been ordered to be deleted on the ground that the transfer was in breach of the provisions of Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as ‘the Tenancy Act’).

Short facts are that the petitioner had purchased the land bearing Survey No.68/1/A at Village Piplod, Taluka-Choryasi. The registered sale-deed was executed on 27.11.1989 by Kalidas Ratanji. Revenue entry was mutated vide entry No.919 dated 05.02.1990. The entry was also certified as per the petitioner. Thereafter, land was converted into non-agriculture use and said permission was granted. Thereafter, the Deputy Collector initiated suo-motu proceedings against the entry No.919 dated 05.02.1990 on the ground that the transaction was hit by the provisions of Section 63 of the Tenancy Act. He directed for cancellation of the entry as per Annexure-C. The matter was carried in appeal by the petitioner with the original owner before the District Collector and the District Collector vide order dated 21.03.1994 dismissed the appeal. The petitioner also carried before the State Government in revision and vide order dated 21.03.2000 at Annexure-F, the State Government has dismissed the revision. Under these circumstances, the present petition before this Court.

I have heard learned Counsel Mr.D.K.Mehta C/SCA/4386/2000 JUDGEMENT for the petitioner and learned AGP Mr.Devnani for the respondent authorities. The learned Counsel appearing for both the sides are on agreement on the point that as such the issue which arose for consideration in the present matter is covered by the decision of this Court in case of Jhaverbhai Savjibhai Patel v. Kanchanben Nathubhai Patel reported in 2005 (3) GCD 2513, whereby this Court has taken the view that if the Respondent authority is of the view that transaction of sale is in breach of the provisions of other enactment, the Revenue Authority will not be able to cancel the entry but the endorsement would be required to be made in the entry that the transaction is prima-facie in breach of other enactment. This Court in the said decision at Para No.6, by relying upon the earlier decision in the case of Jayantilal Jethalal Soni v. State of Gujarat observed thus:

6....... in a case where the transfer of a land is made by registered sale deed and if the revenue authority prima facie is of the view that such transfer is either barred under the other enactment or is resulting into a breach of other enactment or is to result into adversely affecting the rights under the other enactment and consequently sale is prohibited, then in that case, the appropriate course for the revenue authority would be to record the entry for registered sale deed with the express observations that the registered sale deed is prima facie in breach of the other enactment and simultaneously refer the matter to the competent authority under the other concerned enactment of which breach is committed and the entry should be made subject to the final decision which may be taken by the competent authority under the other concerned enactment.............

If the facts of the present case are considered, in light of the aforesaid decision, it does appear that the Revenue Authority was not justified in canceling the entry but it was required C/SCA/4386/2000 JUDGEMENT for the Revenue Authority to make endorsement in the entry. No further discussion is required on the said aspect, since the issue is already covered by the above referred decision of this Court and the order passed by the Revenue Authority for cancellation of the entry in toto cannot be entertained.

Hence, following order: (a) The impugned order passed by the Deputy Collector and its confirmation thereof by the Collector and the State Government are quashed and set aside so far as it relates to canceling the entry No.919 dated 05.02.1990, with the further observation and direction that endorsement shall be recorded in the said entry that prima-facie the transaction of sale is in breach of provisions of Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948. (b) It is also observed that it would be open to Revenue Authority to refer the matter to the competent authority under the Bombay Tenancy and Agricultural Lands Act, 1948. Thereafter, if any proceedings are initiated by any authority under the said enactment, the rights and contentions of both the sides including the aspect of delay shall remain open.