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Chhaganbhai Zinabhai Patel and ors. Vs. Vallabhbhalvirambhal and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtGujarat High Court
Decided On
Judge
Reported in(1976)17GLR464
AppellantChhaganbhai Zinabhai Patel and ors.
RespondentVallabhbhalvirambhal and ors.
Cases ReferredIn Bhagwanji Bawanji v. State of Gujarat and Anr.
Excerpt:
- - majmudar in this behalf is well founded......section 31 of the bombay prevention of fragmentation and consolidation of holding act, 1947 to the prant officer, olpad for granting him permission to sell the land in question to the petitioners. on 15th july 1968, respondent no. 1 made an application to the prant officer, olpad in which he stated that since he has been the owner of contiguous land-block no. 16 the land in question should be sold to him. the prant officer by his order dated 1st march 1969 granted permission to respondent no. 2 to sell the land in question to the petitioners. on 14th march 1969 respondent no. 2 executed the sale deed in favour of the petitioners. the petitioners paid to respondent no. 2 the consideration of rs. 9000/- and respondent no. 2 in turn delivered to the petitioners possession of the land in.....
Judgment:

S.H. Sheth, J.

1. Respondent No. 2 was the owner of agricultural block No. 15 admeasuring 5 acres-3 gunthas of village Kasad in Olpad Taluka of Surat District. He agreed to sell it to the petitioners and executed an agreement of sale on 6th June 1968. Respondent No. 2 thereafter made an application under Section 31 of the Bombay Prevention of Fragmentation and Consolidation of Holding Act, 1947 to the prant officer, olpad for granting him permission to sell the land in question to the petitioners. On 15th July 1968, Respondent No. 1 made an application to the prant officer, olpad in which he stated that since he has been the owner of contiguous land-block No. 16 the land in question should be sold to him. The prant officer by his order dated 1st March 1969 granted permission to Respondent No. 2 to sell the land in question to the petitioners. On 14th March 1969 Respondent No. 2 executed the sale deed in favour of the petitioners. The petitioners paid to Respondent No. 2 the consideration of Rs. 9000/- and Respondent No. 2 in turn delivered to the petitioners possession of the land in question.

2. On 11th April 1969, Respondent No. 1 applied under Section 35 of the said Act to the State Government to revise the order of the prant officer. The Special Secretary to the State Government, by his order dated 17th March 1970, allowed that revision application and held that Respondent No. 1 had greater eligibility to purchase the land from Respondent No. 2. He, therefore, cancelled the permission granted by the Prant Officer and directed the Prant Officer to take steps to summarily evict the petitioners from the land in question.

3. It is that order which is challenged by the petitioners in this petition.

4. The impugned order makes it clear beyond any doubt that the State Government has taken the view that Respondent No. 1 is more eligible to purchase the land in question from Respondent No. 2 because he has been the owner of a contiguous land. There is no other reason which has prevailed with the State Government in coming to that conclusion.

5. Section 31 of the said Act provides that notwithstanding anything contained in any law for the time being in force, no holding allotted under the said Act, nor any part thereof shall be transferred inter alia by way of sale except in accordance with such conditions as maybe prescribed. Sub-section (9) of Section 2 of the said Act defines prescribed as prescribed by rules made under the said Act Sub-rule (1) of Rule 27 enablesan intending transferor to make an application to the Collector. Sub-rule (2) lays down the circumstances under which permission can be granted to an intending transferor to sell his land Clauses (a), (b), (c) and (d) have no application to the instant case. Clause (e) of Sub-rule (2) provides that permission may be granted if the land is to be transferred to the owner of the adjoining holding who cultivates it personally. It is this clause upon which Respondent No. 1 has placed reliance. Clause (f) which follows Clause (e) provides that permission may be granted if the entire land allotted under the said Act is to be transferred to an agriculturist it is not in dispute before me that the petitioners are the agriculturists in fact no contention was raised either before the Prant Officer or before the State Government that the petitioners have not been agriculturists. Sub-rule (2) of Rule 27 which specifies persons eligible to purchase an agricultural land does not specify them in order of priority unlike the order of priority specified in Section 64 of the Bombay Tenancy and Agricultural Lands Act, 1948, since Sub-rule (2) of Rule 27 does not specify any order of priority it is open to the vendor to sell his holding either to the owner of a contiguous agricultural land or to any other agriculturist after obtaining permission of the prant officer in that behalf.

6. When the prant officer granted to Respondent No. 2 permission to sell the land in question to the petitioners he committed no error or illegality. However, the State Government interfered with that order and directed that the petitioners should be evicted from the land in question only on the ground that Respondent No. 1 the owner of the contiguous land was on account of that reason more eligible to purchase it. What the State Government has done by the impugned order is to dictate to the petitioners the choice of his vendee. If there are two intending vendees who are eligible under Rule 27 to purchase an agricultural land it is the choice of the vendor which must prevail. He can sell it to any one after obtaining permission of the Prant Officer. It is true that the Prant Officer or the State Government as the case may be has power to refuse to grant such a permission under Rule 27. However, in my opinion, it is not open to the Prant Officer or to the State Government, as the case may be, to refuse to the vendor permission to sell his land in order to dictate to him the choice of his vendee where there are more than one intending vendees eligible and ready to purchase it. To arrogate unto itself the power of dictating choice to a vendor as regards his vendee is to travel beyond the scope of Rule 27 and to arrogate unto it power which Rule 27 does not confer upon the prant officer. In this view of the matter, it is difficult to sustain the impugned order made by the State Government.

7. By the impugned order the Prant Officer has been directed to take steps to evict the petitioners from the land in question. The petitioners went to the State Government to answer the revision application which Respondent No. 1 had filed against them they were not called upon to show cause why they should not be summarily evicted from the land in question under Section 9 of the said Act unless, therefore, the proceedings were instituted for summary eviction of the petitioners from the land in question and unless the petitioners were duly heard in that behalf no order of summary eviction could have been passed against them the impugned order, therefore, suffers from another serious infirmity also.

8. Lastly it has been contended that though Section 35 confers upon the State Government revisional jurisdiction which it may exercise at any time it should exercise it within a reasonable time. The argument advanced by Mr. Majmudar in this behalf is well founded.

9. In the context of Section 211 of the Bombay Land Revenue Code which prescribes no period of limitation for the State Government to exercise its revisional jurisdiction, the Supreme Court has held in State of Gujarat v. Pate] Raghav Natha and Ors. 10 G.L.R. 992, that it should be exercised within a reasonable time what is a reasonable time depends upon the facts and circumstances of each case. This is what the Supreme Court has observed in that behalf:

The question arises whether the Commissioner can revise an order made under Section 65 at any time. It is true that there is no period of limitation prescribed under Section 211 but it seems to us plain that this power must be exercised in reasonable time and the length of reasonable time must be determined by the facts of the case and the nature of the order which is being revised.

In Muman Hahib Nasir Khanji v. State of Gujarat and Ors. 11 G.L.R. 307, a Division Bench of this Court of which I was a member has applied to it the principle laid down by the Supreme Court.

10. In Bhagwanji Bawanji v. State of Gujarat and Anr. 12 G.L.R. 156 another Division Bench of this Court has also taken the same view, in the context of exercise of revisional jurisdiction under Section 211 of the Bombay Revenue Code in my opinion, the same principle must govern the exercise of revisional jurisdiction under Section 35 of the said Act. Merely because Section 35 or any other section of the said Act does not prescribe any period of limitation and provides that it may be exercised at any time it does not mean that it can be exercised after any length of time. In the instant case, the length of time is per se not at all great the Prant Officer granted to respondent No. 2 permission to sell his land on 1st March 1969. Respondent No. 1 applied to the State Government on 11th April 1969 for revising that order the State Government decided the revision application on 17th March 1970. It is, therefore, clear that the State Government was moved under Section 35 of the said Act by Respondent No. 1 within a period of one month and 11 days. Though this length of time cannot be said to be per se unreasonable it has got to be looked at in the context of the intervening events which took place after the prant officer granted the permission and before Respondent No. 1 filed the revision application. Respondent No. 2 had during this period executed a sale-deed in favour of the petitioners, had received consideration of the transaction, had conveyed title to the land to the petitioners and had delivered to them its possession. If these events took place during the intervening period and if the order of the prant officer did not suffer from any illegality or any impropriety the State Government ought not to have interfered with that order and set at naught the events which had taken place during the intervening period.

In light of the views which I have expressed on the first two contentions, I am unable to uphold the impugned order.

I therefore, allow this petition, quash and set aside the impugned order made by the State Government and restore the order made by the prant officer rule is made absolute with no order as to costs in the circumstances of the case.


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