CHAUDHARY K GOBARBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Learned advocate Shri Jitendra M. Patel is appearing for the petitioners. Learned AGP Shri R.V.Desai is appearing for the respondents. This petition was admitted by this court on 15th April, 1991 by issuing rule thereon and the interim relief was ordered to continue while admitting this petition. In this petition, the respondents have not filed any affidavit in reply against the averments made in the petition.

(2.) Brief facts of the present petition are that the land bearing survey No. 211 situated in the sim of village Satlasana in Kheralu Taluka admeasuring 4A.27 G. was owned by one Bai Amarba daughter of Kaluji Ramaji. One Nathaji Jesangji and Kaluji Mansangji were the tenants of the said land in the year 1957. That the proceedings under sec. 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 were initiated in the year 1961. The tenants of the land have shown their unwillingness to purchase the land. Therefore, an order under sec.32G dated 6.6.1961 was passed by the Mamlatdar and ALT Kheralu declaring the purchase of the land ineffective. Thereafter, since the purchase was made ineffective, the land was at the disposal of the collector under sec.32P of the Act and the Mamlatdar exercising the powers of the collector under section 32P of the Act , by order dated 24.12.1962 has terminated the tenancy of the tenants and given lands to the landlord for personal cultivation under section 32P (2)(b) of the said Act. From the date of the said order, the landlord was in possession of the land and the said order under sec.32P of the said Act was not challenged by the tenant and thus, both the orders under sec.32G and 32P became final and binding to the parties. Thereafter, necessary entry no. 787 was made in the revenue record on 16.5.1975 notifying the fact that the possession of the land was given to the landlord for personal cultivation under section 32P (2)(b) of the Act which entry was certified by the Mamlatdar. Thereafter, heirs of the original landlord made an application before the taluka development officer for converting 1 Acre 13 Gunthas of the land from s.n.211 for NA Purpose for making plots for the residential purpose. The taluka development officer under his order dated 15.4.1985 granted NA Permission in respect of the said land. Thereafter, original land owner Nandaba Kaluji Thakore sold all the 35 plots to 21 different persons including the petitioners by separate sale deeds in May and June, 1985.Petitioner No.1 purchased plot No. 1/1, 1/2 and 2 i.e. three plots by registered sale deed dated 5.6.1985 for Rs. 7,500.00 from the owner Nandaba Kaluji Thakore and petitioner No.2 purchased plot NO.3 and 4 by registered sale deed dated 5.6.1985. The original owner sold 30 plots to other 19 persons by separate 19 sale deeds executed in or around the same time. Thereafter, the names of all these 21 purchasers were entered into the revenue record in the village form No. 7, 7A and 12. The Mamlatdar posted entry No.1462 dated 7.8.1985 notifying the aforesaid lands. In the said entry, the Mamlatdar has certified entries in favour of all the plot holders from sr.no.1 to 19 but has not certified entry of the petitioners whose name is shown in the said entry at sr. no. 20 and 21 on the ground that the original owner has raised objections before him. The petitioner submits that the original owner Nandaba Kaluji Thakore had given in writing on 17.7.1985 that she has not received full amount from the petitioners and, therefore, entry in favour of the petitioners should not be certified but she has no objection to certify the entries for the rest of the plots. The case was thereafter taken on the dispute register and the Mamlatdar, by his order dated 10.10.1986, cancelled the sale deed for five plots of the petitioners. Thereafter, the petitioners had preferred appeal no. 54 of 1986 before the Deputy Collector, Patan which was dismissed by order dated 11.5.1987. The Deputy collector has also dismissed all the objections of the original owner and has decided the question of tenancy inasmuch as he has held that the land was at the disposal of the collector under section 32P of the Act and, therefore, the landlord has no right to transfer the land. Thereafter, the petitioners had preferred revision application before the Collector, Mehsana against the order of the Dy. Collector dated 11.5.1987 which was dismissed by the COllector by order dated 26.12.1988. Thereafter, revision application was preferred before the State Government. The State Government, without deciding short controversy whether the Mamlatdar was justified in not certifying the entry in favour of the petitioners for five plots, held as if he was deciding the case under the Tenancy Act that under sec.32P, the land owner has no right to transfer the land and he has held that the land vested in the State Government under sec. 32P of the Act and has decided all the questions under sec.32P though the order under sec.32G and 32P were final and no party had challenged the said order. Thereafter, review application was filed by the petitioners before the State Government and in response thereto, the petitioners received letter from the State Government dated 21.11.1990 that if the petitioners are aggrieved by the said order, the petitioners can file an appeal before the competent court. Thereafter, the petitioners had also made an application to the Mamlatdar for getting certified copy of the order passed under section 32P of the Act dated 24.12.62 terminating tenancy of the tenants and granting the land to the owner for personal cultivation but the Mamlatdar has, by his reply dated 14.9.1990, informed that the record of 1962 regarding said entry No. 787 is not available and no copy can be given to the petitioners. Thereafter, the petitioners have approached this court by means of this petition challenging order of the Mamlatdar at Annexure "H", order of the Deputy Collector at Annexure "I", order of the Collector at Annexure "J", order of the State Government at Annexure "K" on the grounds raised in the memo of petition.

(3.) I have heard the learned advocate Shri J. M. Patel for the petitioners. I have also heard the learned AGP Mr. Desai appearing for the respondents.