GHANSHYAMBHAI NABHERAM Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Rule. Mr. S. D. Talati, learned A.G.P. waives service of rule.

(2.) The facts leading to filing of this petition are that one Shakaraji who was a co-sharer of land comprised in Block No. 215 admeasuring 2 acres 33 gunthas executed a Will on 1/03/1986 in favour of the present petitioner to the extent of his share therein. Said Shakaraji died on 7/10/1986. The petitioner has claimed mutation in the land records in his favour on the basis of the said Will. On 1/07/1987, the entry No. 1692 was amended to that effect. On 18-2-1989, the Deputy Collector initiated proceedings for revising the said alteration under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter called the "Act of 1947"). By Order dated 22/08/1989, the Deputy Collector cancelled the entry No. 1692 on the ground that as the petitioner has acquired the land by way of a Will which has resulted in sub-division of the block in breach of the provisions of the Act of 1947 and as the legatee is also not an agriculturist to whom any transfer could be made in view of Sec. 63 of the Bombay Tenancy Act, amendment in entry No. 1692 is liable to be cancelled.

(3.) The petitioner appealed before the Collector against the said order. The Collector rejected the appeal of the petitioner. The petitioner applied to the State Government for revision. The State Government, vide its order dated 31-12-1992 found that deceased Shakaraji has made Will in favour of the petitioner land admeasuring 1.25 bigas of his share in Block No. 215 and the petitioner has acquired the land as a successor of said Shakaraji. It further held that land is of a block and the petitioner has been granted land by dividing the block without previous permission required under the Act, which amounts to breach of Act of 1947 as well as the petitioner is not an agriculturist and before acquisition, no permission was sought under Sec. 63 of the Tenancy Act and it also is in breach of the Bombay Tenancy Act. It agreed that deceased has right to make a Will in respect of his property but not so as to commit breach of any of the statutes. In that view of the matter, the revision was rejected on 21/12/1992.