TRUSTEE OF DABABHAI TRUST Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Ms.Ketty Mehta, learned advocate appearing on behalf of the petitioners and Mr.I.M.Pandya, learned AGP appearing on behalf of the respondent authorities.

(2.) The present petition has been admitted by this Court and granted ad interim relief in terms of para 14(B) on 19th July, 2000 and the same is continued till date. Today with the consent of the learned advocates for the parties, the matter is taken up for final hearing and the same is proposed to be finally disposed of by this judgment.

(3.) The brief facts of the present petition are as under The land of Survey No. 433, 434 and 461 of village Kholwad, Taluka Kamrej, Block 443/A was owned by Dadabhai Trust. The said land was given by the trust to one Shri Dayabhai Nathabhai Patel as tenant. On 30th September, 1965 said Dayabhai Nathabhai Patel expired. His heirs namely the petitioner Nos. 2.1 to 2.5 purchased the land in question as tenant under theprovisions of the Bombay Tenancy and Agricultural Lands Act [ hereinafter to be referred to as `the Act' ]. That the Dadabhai Trust was a registered trust and as it was manaigng hospital and educational institution, only certain provisions namely Section 88(B) of the said Act would be applied and the tenants did not become deemed purchasers. The petitioner trust gave an application for giving exemption under Section 88 (B) of the said Act. On 21st April, 1992, the Assistant Collector , Olpad rejected the said application on the ground that entry No. 3022 dated 11th June, 1991 which was made in favour of the petitioner Nos. 2/1 to 2/5 as purchasers of the land in question after they purchased on 9th November, 1990 was taken in suo motu revision. That on 14th May, 1992, the notice were given to the petitioners regarding suo motu revision of entry No. 3022 dated 11th June, 1991. Thereafter the petitioners gave reply to the said notices interalia stating that the land was purchased by the tenants and therefore there was no question of sale of the land to non agriculturist and that there was no question of agriculturist not having any other agricultural land within 8 km. Other contentions were also raised in the reply. The petitioners also along with the reply annexed xerox copies of the village form No. 7/ 12 from the years 1978-79 to 1991-92 to show that the tenant and his heirs were all throughout in possession, occupation and use of the land in question. On 10th August, 1992 the Assistant Collector, Olpad by his judgment and order held that the entry No. 3022 dated 11th June, 1991 regarding Block No. 443/A be cancelled. Being aggrieved by the aforesaid order, the petitioners preferred appeal before the Collector, Surat and pointed out that some contention has been raised by the Assistant Collector, Olpad. On 26th March, 1993 the Collector, Surat by his judgment and order rejected the said appeal and confirmed the order of the Assistant Collector, Olpad. Being aggrieved by the said judgment and order dated 26th March, 1993, the petitioners preferred revision application before the Special Secretary (Appeals), Revenue Department, Gujarat State, Ahmedabad. The petitioners also submitted written arguments before the Special Secretary (Appeals). On 12th April, 1999 the Special Secretary (Appeals), Revenue Department Gujarat State by his judgement and order rejected the said revision application of the petitioners and confirmed the order of Collector, Surat. However, the authority has directed that as the revision of the trust preferred under the provisions of the said Act is pending, the order be executed in accordance with the decision that may be given by the Gujarat Revenue Tribunal. The petitioners challenging the said order dated 12th April, 1999 on the ground that the lower authority failed to appreciate that there are errors apparent on the face of the record and order of the lower authority is contrary to law, ultra vires and bad in law on the ground that only after the question regarding breach of Section 63 and 64 of the said Act is decided, entry can be changed by the authority under the provisions of the Bombay Land Revenue Code. That petitioner trust is registered trust and is carrying on educational institution and managing hospital and therefore the trust is entitled to exemption under the provisions of the said Act and the Assistant Collector, Olpad could not have decided the question of cancellation of entry unless Gujarat Revenue Tribunal had taken a decision regarding exemption under Section 88 (B) of the said Act and therefore, according to the petitioners, exercise of powers for cancellation of entry was unjustified, unreasonable and contrary to law. Because if the trust is entitled to exemption under Section 88 (B) of the said Act, provisions of Section 63 and 64 of the said Act do not apply to the land in question. That the provisions of Section 3 of the Gujarat Agricultural Lands Ceiling Act did not apply inasmuch as the land was question was never in actual and physical possession of the trust and it was always in possession of the tenant and that the ground of breach of provisions of Section 3 of the Gujarat Agricultural Lands Ceiling Act did not survive and entry could not have been cancelled on that ground as the land was sold to agriculturist and the provisions of Section 63 or 64 of the said Act did not apply. According to the petitioners, in view of settled legal position, the revenue authority cannot decide question of breach of any provisions of the said Act. That the order regarding cancellation of entry on the basis of the breach of provisions of the said Act was without jurisdiction.