SABBIRALI ALIHUSEIN VORA Vs. KIKABHAI MOHMEDALI

JUDGEMENT

(1.) Mr. Harin P. Raval, learned Counsel for the appellants, and Mr. Uday Bhatt, learned Counsel for the respondent-State, are heard. I am told that the original plaintiff Nos. 1, 3, 4 and 6 had already expired during the pendency of the First Appeal and other respondent, except respondent No. 5, has also died. Respondent No. 5 is served, but, there is no representation on his behalf.

(2.) The facts necessary for disposal of the present appeal are that on 17th July, 1944, an application was made by Mohammedan Industrial Society to the erstwhile State of Palanpur for sale of certain land; on 2nd August, 1945, vide Order No. 1118, the erstwhile State of Palanpur issued orders in favour of the Society and ultimately, executed a Sale Deed in favour of the said Society for various Survey Numbers. The order contained a condition that constructions would be completed within a period of fifteen years from the date of respective orders. On 15th April, 1948, yet another application was made by the Society to the State of Palanpur that the condition relating to construction within the period of fifteen years be deleted. Vide Order No. 1474 dated 15th April, 1948 and permanent Parvana No. 43, the said lands were sold by the erstwhile State for an amount of Rs. 50,001/-, the total land was 41 Acres and 10 Gunthas. On 15th May, 1948, vide Parvana No. 58, 4 Acres, 29 Gunthas of land was granted to Mohammedan Industrial Society for construction of bungalows with garden. The Society, it appears, had leased out some land in favour of its other members for the purpose of agricultural operations. The possession of the property continued with Mohammedan Industrial Society upto 19th January, 1961, after coming into effect the Government of Gujarat, the Collector, Banaskantha passed an order directing forfeiture of 32 Acres and 22 Gunthas and 16 square metres of land sold by the erstwhile State of Palanpur. On 21st January, 1965, an appeal was preferred, the same was rejected on the ground that the post of Commissioner of Appeals was abolished. Facing dismissal, Mohammedan Industrial Society approached the Revenue Department, State of Gujarat on 8th July, 1967 with an application to make modifications in the order; the application was granted and it was directed that construction should be completed within two years, failing which the land would stand forfeited. On 19th November, 1967, the Collector, Banaskantha imposed various conditions in his order, including the condition to complete the construction within a period of two years. Addition of the additional condition was challenged by Mohammedan Industrial Society and thereafter, by an Order dated 13th February, 1968, the State Government set aside the order passed by the Collector and asked him to incorporate only those conditions, which were contained in the order of sale of the land by the erstwhile State. Accordingly, vide Order dated 11th June, 1968, the Collector incorporated the said conditions in his order. Thereafter, the Society made an application for relaxation of certain conditions, which came to be rejected and thereafter, the revision against the said order was also dismissed. On 17th September, 1976, a show cause notice came to be issued by the Collector, asking Mohammedan Industrial Society to show cause that why the land be not forfeited in view of non-compliance of Condition No. 2. On 12th October, 1977, the Collector, observing that there was breach of Condition No. 2, directed forfeiture of the property; the revision application against the said order came to be rejected, therefore, the plaintiffs issued, somewhere in the year September-1978, a notice under Section-80 of the Code of Civil Procedure and thereafter, filed the suit.

(3.) The appeal came to be admitted on 13th September, 2005 on the following substantial questions of law: