SHAMJI GOVIND Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The petitioners have challenged the judgment and order of the Gujarat Revenue Tribunal dated 25/11/1980 in Revision No. TEN. B.A. 17 of 1979 by which the Tribunal set aside the orders passed by the authorities below holding that the transfer of the disputed land which was effected by a sale deed dated 29/09/1969 was in violation of the provisions of Sec. 89 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region and Kutch Area) Act, 1958 (hereinafter referred to as the "Bombay Tenancy Kutch Area Act"), being in favour of non-agriculturists and therefore, the land was deemed to have been vested in the State Government free from all encumbrances liable to be disposed of as per the provisions of Sec. 122 of the Bombay Tenancy Kutch Area Act.

(2.) Admittedly, petitioner No. 1 had transferred by a registered sale deed dated 29/09/1969, the lands bearing survey Nos. 9 and 10 admeasuring 7 Acres 27 Juntas and 8 Acres 23 Juntas respectively situated at Nani Man, Taluka Mandvi, Kutch in favour of petitioners Nos. 3 and 4. It is also admitted that these petitioners Nos. 3 and 4 who purchased the disputed land under the sale deed dated 29/09/1969 were not agriculturists and were residents of Bombay. Respondents Nos. 2 and 3 were owning lands adjoining to the disputed land and they made an application to the Deputy Collector, Nakhatrana to declare the sale of the disputed lands as invalid on the ground that they were transferred to nonagriculturists in contravention of Sec, 89 of the Bombay Tenancy Kutch Area Act, Thereupon, the Deputy Collector directed the Special Mamlatdar, Mandvi to hold an inquiry in the matter. It appears that in the mean time, petitioner No. 1 executed another sale deed of the same land on 16-11-1970 in favour of petitioner No. 2 who was an agriculturist. The Special Mamlatdar, by his order dated 28-2-1972 held that the sale deed dated 16-11-1970 being in favour of an agriculturist, did not contravene the provisions of Sec. 89 of the Bombay Tenancy Kutch Area Act and therefore, it was not necessary to start proceedings under Sec. 122 of that Act. The appeal preferred against that order was allowed by the Deputy Collector on 29-9- 1969 holding that the first sale deed dated 29/09/1969 contravened the provisions of Sec. 89 of the Bombay Tenancy Kutch Area Act and directing that the land be forfeited to the Government, holding the sale to be invalid. The Gujarat Revenue Tribunal in its Revisional jurisdiction set aside that order of the Deputy Collector and remanded the matter on 24-11- 1974 and accordingly, the Deputy Collector in turn, passed the order date 12-10-1975 directing the Special Mamlatdar to conduct the case afresh. Thereafter, the Special Mamlatdar by his order dated 28-12-1978 passed in Remand Case No. 1 of 1978 held that the petitioner No. 1 had cancelled the earlier sale deed dated 29-9-1969 by executing the second sale deed on 16-11-1970 in favour of the petitioner No. 2 who was an agriculturist and therefore, there was no breach of the provisions of Sec. 89 of the Bombay Tenancy Kutch Area Act. The appeal filed against that decision was dismissed by the Deputy Collector, Bhuj on 29-11-1979. The Tribunal, after considering the provisions of Sees. 89 and 122 of the Bombay Tenancy Kutch Area Act and the material on record, found that after the first sale deed dated 29/09/1969, there remained no title in the petitioner No. 1 which he could have passed in favour of the petitioner No. 2 by the subsequent sale deed dated 16-11-1970. It was held that the first sale being in contravention of the provisions of Sec. 89 was invalid and therefore, consequences of Sec. 122 of the Bombay Tenancy Kutch Area Act would follow. The Tribunal also found that the first sale deed was not properly cancelled.

(3.) Mr. Vora, the learned Counsel for the petitioners strongly contended that the first sale deed dated 29/09/1969 which was executed by the petitioner No. 1 in favour of the petitioners Nos. 3 and 4 was cancelled by the petitioner No. 1 and the parties had not acted upon that sale deed and therefore, there was no transaction which would offend the provisions of Sec. 89 of the Bombay Tenancy Kutch Area Act. He further argued that Sec. 122 of the Bombay Tenancy Kutch Area Act did not contain provisions which would enable the parties to restore the earlier position prevailing prior to an illegal transfer, as are contained in Sec. 84(C) of the Bombay Tenancy and Agricultural Lands Act, 1948 as applicable to the Bombay area of the State of Gujarat and, therefore, any action taken under the provisions of Sec. 122 of the Bombay Tenancy Kutch Area Act would be discriminatory.