ISHVERBHAI BHAGUBHAI Vs. SPECIAL SECRETARY REVENUE DEPARTMENT

JUDGEMENT

(1.) Petitioners father Bhagubhai became deemed purchaser of Survey No. 18 of village Karanj Taluka Choryasi District Surat by virtue of sec. 32 read with sec. 32G of the Bombay Tenancy and Agricultural Lands Act 1948 (hereafter referred to as the Tenancy Act). On his death his heirs (1) Ishverbhai (2) Haribhai (3) Champaklal (4) Shantaben and (5) Gangaben became the joint owners of the said property. By a deed of relinquishment dated 1-12-1964 the other co- owners relinquished their respective shares in favour of the petitioners. On an application made by the petitioner a mutation entry was made to that effect in the revenue records. However the Mamlatdar by his order dated 30-5-1967 cancelled that entry on the ground that the transfer was void according to sec. 43 of the Tenancy Act. That order was confirmed in appeal by the Assistant Collector. The petitioner then filed a further appeal before the Collector who held that second appeal did not lie; and therefore treated it as a revision application under Rule 108 of the Bombay Land Revenue Rules. He confirmed the order passed by the Assistant Collector and dismissed the revision application. The petitioner then filed a revision application before the Special Secretary Revenue Department. That was also dismissed. The petitioner has therefore approached this Court under Art. 227 of the Constitution of India.

(2.) Mr. Shelat the learned Advocate for the petitioner submitted that relinquishment of a share as in the present case cannot amount to a transfer much less a transfer as contemplated by sec. 43 of the Tenancy Act; and therefore the authorities below committed an error in taking the view that the transfer was void as it was made in contravention of sec. 43 of the Tenancy Act. He further submitted that this erroneous view of law has vitiated the orders passed by the authorities below.

(3.) Sec. 43(1) of the Tenancy Act reads as follows: ]