NATUBHAI MANGALBHAI RATHOD Vs. DEPUTY COLLECTOR

JUDGEMENT

(1.) By this special civil application the petitioner has challenged the order annexure-H dated 18-9-1994 of the Deputy Collector, Anand and order annexure-I dated 4-6-1985 of the Secretary (Appeals), Revenue Department Ahmedabad passed in Revision Application S.R.D. Con. No. 258 of 1984 under the provisions of the Consolidation of Holdings and Prevention of Fragmentation Act, 1947.

(2.) The facts of the case are that the father of the petitioner purchased land bearing Survey No. 20/P admeasuring 2 acres 07 gunthas situated in the sim of village Sarnal, Taluka Thasra, District Kheda on 19th February, 1961. This sale was oral sale coupled with delivery of possession of the land to the deceased father of the petitioner on the same date. On the basis of the aforesaid oral sale and delivery of possession of the land to the deceased father of the petitioner, mutation entry No. 752 was effected on 15-2-1962. The said entry came to be scrutinised by the Aval Karkun on 12-7-1962 and he reported that the transaction and sale appeared to be in contravention of the law. The petitioners alleges that an entry was also made in village form No. 7/12 in respect of the said transaction and therein also an endorsement is there that the transaction in question is contrary to law. In pani patrak it is also mentioned that 15 gunthas of the said survey numbers was new kyari land, and thereafter it was shown to be land of new tenure. It is stated to be done only through mistake committed by the person who made the said entry subsequently. However, on consolidation of the land, the land in question has been shown to be old tenure land, and entry has been effected in the village form to that extent. A notice came to be issued to the petitioner by respondent No. 2 calling upon to show cause why proceedings under the aforesaid Act should not be taken and penalty of Rs. 250/- should not be imposed. This notice is dated 16th August, 1965. However, the petitioner produced on record another notice dated 10th January, 1966 calling upon the respondent No. 2 to pay fine of Rs. 200/-. He has 'further produced receipt for payment of Rs. 200/-. Thereafter, entry No. 844 was effected on 21-11-1966, under order dated 21-11-1966. Under order dated 6/18-9-1984 the Deputy Collector, Anand, held that the sale of the land by oral agreement is not valid. It has further been held that 15 gunthas of the land out of the land is of new tenure. It was taken to be a case of violation of the provisions of Consolidation of Holdings and Prevention of Fragmentation Act, 1947, and the transaction was declared to be unacceptable under Sec. 9(1). Under Sec. 9(2) penalty of Rs. 100/- was imposed on the vendor, and order has been made under Sec. 9(3) for removing unauthorised occupants. The land was ordered to be reverted back to the original owner. This order was taken up by the petitioner by filing appeal before the State Government, which has come to be dismissed under order dated 4th June, 1985. Hence this special civil application before this Court.

(3.) Learned counsel for the petitioner contended that the authorities below have not considered that the transaction in question had taken place in the year 1961 and the proceedings has been initiated in the year 1984. This delay of about 23 years in initiating the proceedings itself should have been taken to be fatal to the action. It has next been contended that the proceedings under the Act could have been initiated within reasonable time, and this period of 23 years cannot be said to be a reasonable time. The petitioner has been put in possession of the land by the vendor accepting the consideration on 19th February, 1961 and since then he is in possession thereof and cultivating the same. It has further been contended that even if it is taken to be a fact that the land could not have been transferred by oral transaction, then too in view of the fact that when the vendor has accepted the sale consideration and put the petitioner in possession, no order could have been made for declaring the transaction to be illegal as well as the order of eviction of the petitioner. In any circumstance, the order of reverting back the land to the vendor could not have been made. Lastly the counsel for the petitioner contended that even if it is taken to be a case that part of the land was new tenure, then there is no legal obstruction in the way of respondent Vendor to sell the said land to the petitioner, and in that case only permission of the concerned competent authority was required. On the other hand, the counsel for the respondent State has supported the orders passed by the authorities.