SELOT VALJIBHAI HEMABHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) BY way of this petition under Article 227 of the Constitution of India the petitioners have prayed for an appropriate writ, order or direction quashing and setting aside the impugned order dated 26/12/2008 passed by the learned Secretary (Appeals), Revenue Department, State of Gujarat in Revision Application No. SRD/HKP/Pancham/13/2005 in dismissing the same and confirming the order passed by the Collector, Panchmahals dated 25/06/2005 in RTS Revision No. 3/2004 by which the Collector, Panchmahals dismissed the application confirming the order passed by the Deputy Collector, Lunawada Prant in RTS Remand Case No. 6/2003 by declaraing the transaction in favour of the petitioners as illegal and in breach of Section73 -A of the Bombay Land Revenue Code.

(2.) THIS petition has a chequered history. The petitioners claim to be the owners and occupiers of certain portion of land bearing Survey No. 101 paiki, 200 paiki and 358 paiki situated at village Sarasva (west), Taluka Santarampur, District Panchmahals. It is the case on behalf of the petitioners that the disputed land in question was mortgaged by the original land owner, Shri Dhanji Velji with possession to one Shri Jethalal Sankalchand and accordingly Mutation Entry No. 205 dated 05/09/1960 was recorded in the revenue record. Thereafter, Mutation Entry No. 208 was recorded, in pursuance of the Government Resolution dated 04/04/1961, showing the land, except the mortgaged land as new tenure. It appears that at the relevant time, the mortgaged land was not considered as new tenure land. Again, thereafter, Mutation Entry No. 232 dated 02/07/1964 was recorded in respect of the oral sale transaction for the mortgaged land in favour of Shri Jethalal Sankalchand. Thereafter, half of the land purchased by Shri Jethalal Sankalchand was sold to one Shri Hema Bhura (father of the respective petitioners) and Mutation Entry No. 233 was recorded on 22/08/1964.

(3.) HAVING heard the learned Advocate appearing on behalf of the petitioner and considering the impugned orders as well as the earlier orders, it appears that the order passed by the Deputy Secretary (Appeals) dated 11/07/2000 remanding the matter to the Deputy Collector (LND -8), Dahod to take a fresh decision with regard to the breach of Section 73 -A of the Bombay Land Revenue code has become final and it has not been challenged by the petitioners at all. On the contrary, on remand, the petitioners participated in the subsequent proceedings and, therefore, now it is not open for the petitioners to contend that the proceedings for breach of Section 73 -A of the Bombay Land Revenue Code could not have been initiated. Even otherwise, it is required to be noted that the earlier proceedings were with respect to the Mutation Entries and it has been specifically found that Mutation Entry No. 208 was made excluding the disputed lands in question from considering it as new tenure land. The same was absolute illegal and the same was required to be considered as new tenure land alongwith other lands. There are concurrent findings of fact by the authorities below holding that the disputed lands in question were new tenure land and the transactions with respect to the land in question in favor of the petitioners is hit by Section 73 -A of the Bombay Land Revenue Code and the same are not required to be interfered with by this Court in exercise of powers under Article 227 of the Constitution of India. No illegalities have been committed by any of the authorities below in passing the impugned order and declaring the sale transaction in favour of the petitioners as illegal and in breach of Section 73 -A of the Bombay Land Revenue Code.