MANSURALI ABDULHUSEN PARAWALA Vs. DY COLLECTOR

JUDGEMENT

(1.) THE petition has a little chequered history and some confusing facts, therefore, the wrinkles are required to be creased out. The facts necessary for disposal of the present petition are that one Vestabhai Bhojabhai, husband of deceased respondent No.2 and father of respondent Nos.3 and 4, owned and possessed Survey No.25 admeasuring 0.24 Gunthas of land (new tenure) and Survey No.23/2/1 and Survey No.23/2/2 jointly admeasuring 0.22 Gunthas. One Jainuddin entered into an agreement to purchase the land and showed his inclination to purchase Survey No.25 admeasuring 0.24 Gunthas. The deceased Vestabhai Bhojabhai, having agreed to sell the land, moved an application for non -agricultural permission and transfer of the land. It appears and as is alleged that in the application, instead of Survey No.25, details of Survey Nos.23/2/1 and 23/2/2 were given. However, a detailed plan as sketch of Survey No.25 admeasuring 0.24 Gunthas was attached/annexed with the application seeking permission.

(2.) SHRI Amin, learned Counsel for the petitioners, submits that from the intention of the parties and the report of the Mamlatdar, it would clearly appear that the intention of the parties was to transfer Survey No.25 and that there was a bona fide factual mistake in mentioning Survey Nos.23/2/1 and 23/2/2 in the application seeking permission. He submits that the authorities went by less appreciating that what was the real intention of the parties. He also submits that present is a case where the petitioners being the subsequent purchasers and respondent Nos.2 to 4 being the successors of the deceased Vestabhai Bhojabhai, should be allowed to make an application to the Competent Authority to convert the permission from Survey Nos.23/2/1 and 23/2/2 into Survey No.25. It is also submitted by Shri Amin that present is a case where the equity is in favour of the petitioners because if they are to be dispossessed from Survey No.25 and possession of Survey Nos.23/2/1 and 23/2/2 is not given to the petitioners, then, they will be losing the possession on one side and would be losing money on the other.

(3.) SHRI Trivedi, learned Counsel for the legal representatives of respondent No.2 and respondent Nos.3 and 4, submitted that permission in relation to Survey Nos.23/2/1 and 23/2/2 was sought , but, in fact, plan of land of Survey No.25 was annexed with the application and the real intention of Vestabhai Bhojabhai was to transfer Survey No.25. He submits that after execution of the first Sale Deed, the possession of Survey No.25 was given to Jainuddin, who, after transferring the land in favour of the petitioners, handed over the possession of Survey No.25 in favour of the present petitioners. He submits that if present is a case of bona fide factual mistake or a case of mistake on facts, then, the parties should be allowed to rectify the mistake with liberty in their favour to make an application either for amendment of the first application seeking permission or in the alternative, to make an application afresh bringing to the notice of the authorities that really, what factual mistake occurred and why it is required to be corrected.