BHAILALBHAI MATHURBHAI PATEL Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The prayer of the petitioners in this petition is for a direction to declare that the impugned order dated 24.4.1995, Annexure : D, of the respondent No.2 is bad and illegal and any transaction which has taken place between respondents No.3 to 8 and the respondents No.9 to 18 persuant to the said order is also illegal.

(2.) Brief facts giving rise to this petition are as under : The petitioners have challenged mainly the action of the respondent No.2 contained in Order dated 24.4.1995 granting permission to the respondents No.3 to 8 under Section 63 of the Bombay Tenancy Act (for short "the Act). Under the said order the respondent No.2 had granted permission to the respondents No.3 to 8 to sell the land in question in favour of the respondents No.9 to 18 for their residential purpose. This order is said to be illegal and is liable to be quashed for the reasons that this order was obtained by the respondents No.3 to 8 by deliberately suppressing the fact that R.T.S. proceedings were going on between them and the petitioners and that the petitioners obtained stay order from the competent Court which is operating. The land of survey No.288/1 situated in village Thaltej, originally belonged to the petitioners. With respect to sale transaction between the petitioners and the respondents No.3 & 4, the respondent No.19 issued notice dated 21.4.1993 under Sec.84(c) of the Act. It was found by the respondent No.19 that there appeared to be violation of the provisions of the Bombay Tenancy and Agricultural Lands in the aforesaid sale transaction dated 13.12.1989. Requisite inquiry was made in the matter and the respondent No.19 passed order dated 8.2.1994 that there was no violation of Section 63 of the Bombay Tenancy Act. Accordingly the notice was withdrawn. Annexure : A is copy of notice dated 21.4.1993 and Annexure : B is the copy of order dated 8.2.1994 dropping the proceedings under Section 84(c) of the Act. The petitioners feeling aggrieved from the aforesaid order of the respondent No.19 preferred an Appeal under Sec.74 of the Act before the Deputy Collector who dismissed the Appeal on 30.7.1994 vide Annexure : C. Feeling further aggrieved from this order the petitioners preferred Revision Application before the Gujarat Revenue Tribunal which is pending and interim order was passed by the Tribunal directing status-quo to be maintained. Interim order is still operating and the revision is still pending. In view of pendency of this revision before the Tribunal the stand of the petitioners is that the R.T.S. proceedings have not been concluded. It is alleged that the respondents No.3 to 8 suppressing material fact that revision arising out of R.T.S. proceeding is pending moved an application under Sec.63 of theAct for selling the land to respondents No.9 to 18 for residential purpose. Not only this, the interim order passed by the Tribunal was also concealed by the aforesaid respondents. As such the order of the respondent No.2 is said to be illegal and the permission granted to the respondents No.3 to 8 to sell the land to the respondents No.9 to 18 is also illegal. It is further alleged that it was obligatory upon the respondent No.2 to ascertain latest position of such R.T.S. proceeding and without ascertaining these facts the impugned order of the respondent No.2 was passed mechanically which is rendered illegal. In persuance of the permission granted on 24.4.1995 by the respondent No.2, the respondents No.3 to 8 have executed sale deed in favour of respondents No.9 to 18 and after purchasing the land the respondents No.9 to 18 proceeded to put up construction over the land.

(3.) The stand of the respondents flowing from the counter Affidavit of the respondent No.10 is firstly that the petitioners have alternative remedy by way of revision against the impugned order of the respondent No.2. Further, the petitioners having accepted the sale consideration of the sale Deed executed on 1.2.1989 and registered on 13.6.1990 have lost their title in the property hence the present petition is not maintainable. Further, the respondents No.9 to 18 purchased the land through Sale Deed dated 14.8.1995 and these respondents applied for permission to make nine sub-plots and also for permission to make construction on the said sub-plots to Ahmedabad Urban Development Authority (for short "AUDA"). On 18.4.1996. The AUDA sanctioned plans for sub-plotting as well as for construction and thereafter construction was started. These respondents entered into an Agreement with Devendra Chunilal Patel, Chief Promotor of Palm Beach Co.Operative Housing Society on 26.6.1996. It is a registered Society. The agreement was registered. Palm Beach Co.Operative Society was subsequently made respondent No.20. The respondents No.9 to 18 applied before the CompetentAuthority for No Objection Certificate. It is also pleaded that the writ petition suffers from the vice of laches inasmuch as the order dated 24.4.1995 was challenged after about one year.