PATEL RATILAL MAGANBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In the present Letters Patent Appeal the main question arises for the consideration of this court that whether this court should exercise the powers under Article 226 of the Constitution of India at the instance of the transferor of a voluntary sale for examining as to whether the said sale was in breach of provisions of the Bombay (Prevention of Fragmentation & Consolidation) Act, 1946 (hereinafter referred to as "the Act"), more particularly, when the said transferor himself is a party to the said voluntary sale and when he has not resorted to any procedure for getting the declaration that the said sale is void 01 therwise.

(2.) The short facts of the present appeal are that the appellants who are the original petitioners are the legal heirs of Maganlal Joitaram Patel. The said deceased Maganlal Joitaram Patel had sold the land measuring 1 hectare 80 RA 09 Gunthas bearing Block No.335 situated at village Shela, taluka Sanand. of Ahmedabad District. As per the said sale deed, the deceased Maganlal Joitaram Patel was paid the full consideration and in exchange thereto the possession of the said agricutlural land was handed over by the deceased Maganlal Joitaram Patel to the purchaser of the land, namely, transferee who is the respondent No.3 in This appeal, namely, Ibrahimbhai Usmanbhai. The aforesaid sale came to be made by registered sale deed dated 10.4.1980, and since then the respondent No. 3 was enjoying the possession and was cultivating the land in question. The revenue entry pursuant to the said sale came to be mutated, and for a pretty long time, i.e.,upto 1996, the appellants contineud to accept the validity of the sale.

(3.) On 11.7.1996, upon inspection of the revenue record of the village, the Deputy Collector issued notice to the transferee i.e. the respondent No.3 herein to show cause as to why the sale should not be declared illegal on account of prima facie view that there is a division on the block of the land and, therefore, there is breach of the provisions of the Act. The respondent No.3 herein replied to the said show cause notice to the Deputy Collector and contended, inter-alia, that he is in possession of the land in question pursuant to agreements of sale dated 6.5.75 abd 2.6.75 and part performance thereof and at the relevant point of time i.e. on 2.6.75 the block therein was not constituted and the respondent No.3 further contended that he is in possession of the adjacent lands which are held by him as the owner and since last 20 years he is in possession and, therefore, it was contended by him that since the period of 20 years has already passed and since he is the owner of the adjacent lands there is no breach of provisions of the Act. The Deputy Collector ultimately passed the order on July 30, 1996 holding, inter-alia, that before the block came to be constituted under the provisions of the Act, the agreements to sale were already entered into between the transferor and the transferee and it was further, found that there is no malafide intention of dividing the block and as such no permission is required for division of the block and even if it is required there is no objection for granting such permission and therefore the Deputy Collector withdrew the show cause notice.