DEVSHIBHAI G PATEL v. STATE OF GUJARAT & Ors.

=========================================== DEVSHIBHAI G PATEL - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) =================================================== Appearance : MR MUKUND M DESAI with MR JAYRAJ CHAUHAN for the Petitioner MS MAITHILI MEHTA, AGP for Respondent(s) : 1 - 3. None for Respondent(s) : 4, NOTICE SERVED for Respondent(s) : 4.2.1,4.2.2 - 5. =================================================== CORAM : HONOURABLE MR.JUSTICE D.A.MEHTA Date : 17/12/2008 ORAL JUDGMENT (1) This petition under Article 227 of the Constitution of India has been preferred challenging order dated 30.11.1988 made by Deputy Collector, Gandhinagar in Revision SCA/8347/1996 JUDGMENT Application No.54 of 1987 and the order of Gujarat Revenue Tribunal (the Tribunal) dated

14.06.1996 in TEN.BA No.213/89 confirming the order of the Deputy Collector. (2) The petitioner purchased land bearing Survey No.347/2, admeasuring 1 acre 33 gunthas of Village Vadodara, Taluka & Dist. Gandhinagar for a consideration of Rs.6,000/- by a registered sale deed on 05.03.1981. An entry in record of rights came to be made being Entry No.2357 dated 06.03.1981. The said entry was certified on 27.05.1981. The Mamlatdar and ALT, Gandhinagar (ALT) issued notice under Section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948 (the Tenancy Act) on 27.11.1984. The ALT came to the conclusion that Dhaniben, wife of the petitioner, was holder of agricultural land bearing Survey No.370, situated in the same village and hence, though the petitioner himself was not holding any agricultural land SCA/8347/1996 JUDGMENT in his name, the transfer of the land in question is not in violation of provisions of Section 84C of the Tenancy Act. Accordingly, notice dated 27.11.1984 came to be withdrawn and the proceedings dropped by the ALT. (3) Vide notice dated 24.08.1987 the Deputy Collector took up the matter in suo motu revision under Section 76A of the Tenancy Act and set aside the order of ALT, as not being legal and correct, and remanded the matter back to the ALT for deciding afresh. (4) The petitioner carried the matter in revision before the Tribunal. During pendency of the revision application before the Tribunal the petitioner appeared before the ALT and his statement was recorded by the ALT on

16.02.1990. The ALT thereafter passed an order on 17.02.1990 in Tenancy Case No.3 of 1999 and forfeited the land in favour of the State Government free from all encumbrances as the purchase was in violation of provisions of SCA/8347/1996 JUDGMENT Section 63 of the Tenancy Act. (5) While passing the impugned order on 14.06.1996 the Tribunal, after narrating the aforesaid facts, has recorded that the petitioner did not inform the ALT about pendency of the revision application before the Tribunal despite the fact that the petitioner had deposed before the ALT on 16.02.1990. The Tribunal has further recorded that the order dated 17.02.1990 made by the ALT has not been challenged even after lapse of six years. Hence, the Tribunal came to the conclusion that the revision application before the Tribunal had been rendered infructuous and accordingly the same was rejected. It is this order of the Tribunal which is under challenge. (6) The learned advocate for the petitioner, after taking the Court through the facts of the case, submitted that the order of Deputy Collector dated 30.11.1988 was itself bad in SCA/8347/1996 JUDGMENT law as the revisional proceedings had been initiated after a period of more than one year and hence, the entire proceedings commencing from the order of the Deputy Collector are bad in law and nullity. It was further submitted that the petitioner was an agriculturist and was holding land in District Kachchh and the Government Resolution dated 29.04.1980 was applicable to the facts of the case entitling the petitioner to purchase agricultural land. It was further submitted that in similar set of circumstances this Court has consistently held that revisional powers cannot be exercised after expiration of one year from the date of concerned order, the requirement that a person must be residing within eight Kms. for purchasing the agricultural land was not applicable and for this purpose reliance has placed on decisions of this Court in case of Thakorbhai Tribhovandas Rao & Ors. Vs. State of Gujarat & Ors., 1995(1) GLR 636 (Guj.) and Meruben & Anr. Vs. Additional SCA/8347/1996 JUDGMENT Special Secretary, Revenue Department, (Disputes) & Ors., 2002 (1) GLR 640 (Guj.). It was also submitted that in similar set of circumstances this Court, in unreported decision in case of Ramjibhai Harjibhai Patel Vs. State of Gujarat & Ors., in Special Civil Application No.7658 of 1989, rendered on

26.09.2005, has held in favour of the petitioner therein. Therefore, it was urged that the impugned order of Tribunal dated

14.06.1996 and the order of Deputy Collector dated 30.11.1988 are required to be quashed and set aside. (7) The facts are not in dispute. The Tribunal has rightly observed that the order made by the Deputy Collector on 30.11.1988 had attained finality in as much as the order of remand, despite pendency of the revision appication before the Tribunal, had been permitted to operate, and the ALT had subsequently passed a fresh order on 17.02.1990 holding that the SCA/8347/1996 JUDGMENT petitioner had violated provisions of Section 63 of the Act and was thus not entitled to hold the land in question. There is nothing on record to show that the finding of the Tribunal to the effect that despite having deposed before the ALT on 16.02.1990 the petitioner had not informed the ALT about pending revision application is incorrect. However, what is more fatal to the case of the petitioner is having accepted the fresh order made by the ALT on 17.02.1990, as recorded by the Tribunal, the same having not been challenged at least till the date the Tribunal has passed the impugned order, namely,

14.06.1996. Thus, on one hand the order of remand made by the Deputy Collector had operated and thus exhausted itself, and on the other hand, the said order stood merged in the impugned order of the Tribunal. Therefore, it is not possible to agree with the contention of the learned advocate for the petitioner that the said order is bad in law having been SCA/8347/1996 JUDGMENT made beyond a period of one year and even on merits. In fact the Tribunal has not gone into merits of the controversy and has not recorded any opinion. In the circumstances, it is not open to the High Court to travel beyond the impugned order of the Tribunal in exercise of jurisdiction under Article 227 of the Constitution. The Court is only required to examine as to whether the Tribunal had acted in consonance with the jurisdiction vested in the Tribunal and the decision making process while passing the impugned order dated

14.06.1996 is in accordance with law. On none of the counts can the impugned order of the Tribunal be faulted with as suffering from any legal infirmity. (8) Even on merits, as recorded by the Tribunal, once the order of the ALT, made in fresh round on 17.02.1990, had attained finality, the petitioner not having challenged the same, there is no question of entering into any SCA/8347/1996 JUDGMENT discussion on merits of the controversy. In the circumstances, it is not necessary to deal with any of the judgments cited on behalf of the petitioner. (9) The petition is accordingly rejected. RULE discharged. Interim relief stands vacated. There shall be no order as to costs. Sd/- [D. A. MEHTA, J] B h a v e s h * ***