PRAVINBHAI BHAILALBHAI GOR Vs. RAJIVKUMAR GUPTA

JUDGEMENT

(1.) The present petition challenges notice dated 29/11/1997 purported to have been issued under Rule 108(6) of the Gujarat Land Revenue Rules, by which it sought to cancel the mutation entry made in favour of Dr. Pravinbhai Bhailalbhai Gor on 28/03/1986, which was affirmed in the further proceedings on llth March, 1992 on the ground that such transfer has taken place without permission of competent officer and in violation of Sec. 43 and also because the petitioner is non-agriculturist, such entry was made in violation of Sec. 63 of the Bombay Tenancy Act. The facts which led to issuance of this notice are that the land originally stood in the name of Mohanbhai, who executed a will in favour of present petitioner on 15-2-1986. On 18-10-1987 Mohanbhai expired and the petitioner claimed mutation entry in his favour on the basis of the said will. After holding an inquiry on application of the petitioner for such mutation, entry No. 1085 was in the record of right in favour of the petitioner on 28/03/1989. It was certified on 7/04/1989. Proceedings were initiated against the petitioner for alleged breach of Sec. 63 of the Bombay Tenancy Act by Addl. Mamlatdar and A.L.T. and the same was dropped. Now, the said entry made in favour of the petitioner is again sought to be cancelled by initiating the proceedings through aforesaid notice by treating the mutation entry made in his favour on the basis of a will to be in breach of provisions of Secs. 43 and 63.

(2.) Heard learned Counsel for the petitioner as well as learned A.G.P. The only question that arises for consideration in this case is whether the transmission of property to a person as a successor of the deceased tenant attracts the provision of Sec. 43 or Sec. 63.

(3.) Relevant provision Sec. 43 of the Bombay Tenancy Act reads as under : 43. (1) No land or any interest therein purchased by a tenant under Secs. 17-B, 32, 32-F, 32-1, 32-0 (32-U, 431-D or 88-E) or sold to any person under Sec. 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine; and no such land or any interest, therein shall be partitioned without the previous sanction of the Collector. (2) Any transfer or partition, or any agreement of transfer, or any land or any interest therein in contravention of sub-sec. (1) shall be invalid. Likewise relevant provisions of Sec. 63 of the Act reads as under : 63. Transfers to non-agriculturist barred '.- (1) Save as provided in this Act, - (a) no sale (including sales in execution of a decree of a civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue, gift, exchange or lease of any land or interest therein, or (b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, (c) no agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein, shall be valid in favour of a person who is not an agriculturist or who being an agriculturist cultivates personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not an agricultural labourer; Provided that the Collector or an officer authorised by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, or for such agreement on such conditions as may be prescribed; Provided further that no such permission shall be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceed five thousand rupees. (2) Nothing in this section shall be deemed to prohibit the sale, gift, exchange or lease, or the agreement for the sale, gift, exchange, or lease of a dwelling house or the site thereof or any land appurtenant to it in favour of an agricultural labourer or an artisan or a person carrying on any allied pursuit. (3) Nothing in this section shall apply or be deemed to have applied to a mortgage of any land or interest therein effected in favour of a co-operative society as security for the loan advanced by such society or any transfer declared to be a mortgage by a Court under Sec. 24 of the Bombay Agricultural Debtors' Relief Act, 1947. (4) Nothing in Sec. 63A shall apply to any sale made under sub-sec. (1).