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Brahmbhatt Ambalal Ashabhai and ors. Vs. Special Secretary Revenue Dept. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtGujarat High Court
Decided On
Judge
Reported in(1983)2GLR1091
AppellantBrahmbhatt Ambalal Ashabhai and ors.
RespondentSpecial Secretary Revenue Dept. and ors.
Cases ReferredKikubhai DayaljiDesai v. Kishorchandra A. Desai and Anr.
Excerpt:
.....owner but that is clearly implicit in the sub-section. even after the transfer is declared void, the transferor may not take action to recover possession of the land, for then he would have to return the purchase price received by him which he may not want to do and in that event the land would continue to remain in possession of the transferee and the object of the legislation would be defeated. here, as the division bench pointed out such power having been conferred when this statutory condition was satisfied of the person being in unauthorised occupation or wrongful possession, or wrong-fully in possession because the transfer or partition had been void under the act, the entire provision would be defeated or frustrated unless 'may' is interpreted as must' so that the effect..........or partition of any land contrary to the provisions of that act shall be void.(2) the owner of any land so transferred or partitioned shall be liable to pay such fine not exceeding rs. 250 as the collector may, subject to the general orders of the state government, direct, such fine shall be recoverable as an arrear of land revenue.(3) any person unauthorizedly occupying or wrongfully in possession of, any land, the transfer or partition of which, either by the act of parties or by the operation of law, is void under the provisions of this act, may be summarily evicted by the collector.now so far as section 9(1) is concerned, the authorities held that the transfer was contrary to the provisions of the act and, therefore, the transfer was void. the authorities under the provisions.....
Judgment:

S.L. Talati, J.

1. This petition is filed by the persons who are co-owners of. agricultural land survey No. 54/3 admeasuring 0 acre and 34 gunthas and survey No. 54/4 admeasuring 0 acre and 31 gunthas situated in village Simarda in Petlad Taluka of Kaira District. The father of the petitioners sold the land on 10-12-1962 to opponents Nos. 2 and 3. As the transaction was hit by the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947 the proceedings were stated. Ultimately transaction was held to be void and a fine of Rs. 100/- was inflicted on the transferor. However, the Prant Officer, Petlad by his order dated 17-1-77 and produced at annexure 'B' allowed the land to continue with the purchasers who are opponents Nos. 2 and 3. The said order of the Prant Officer was confirmed by the Deputy Secretary, Revenue Department, Gujarat State on 9-6-1977. That order is produced at annexure 'C'. This petition is filed to get these two orders produced at annexures B and C quashed.

2. It clearly appears that the two authorities thought that there was a discretion conferred upon them by Section 9(3) of the Act as there was evidence that opponents Nos. 2 and 3 had spent large amounts for irrigating the lands they may be continued in possession Section 9 of the Act reads as under:

9.(1) The transfer or partition of any land contrary to the provisions of that Act shall be void.

(2) The owner of any land so transferred or partitioned shall be liable to pay such fine not exceeding Rs. 250 as the Collector may, subject to the general orders of the State Government, direct, such fine shall be recoverable as an arrear of land revenue.

(3) Any person unauthorizedly occupying or wrongfully in possession of, any land, the transfer or partition of which, either by the act of parties or by the operation of law, is void under the provisions of this Act, may be summarily evicted by the Collector.

Now so far as Section 9(1) is concerned, the authorities held that the transfer was contrary to the provisions of the Act and, therefore, the transfer was void. The authorities under the provisions contained in Section 9(2) also inflicted a fine and that fine was Rs. 100/-. The fine which could be levied under Section 9(2) could not exceed a sum of Rs. 250/- and, therefore, considering that the owner of the land was liable to pay such fine not exceeding Rs. 250/- the fine was levied at Rs. 100/-. That order was perfectly legal. Thereafter when Section 9(3) was read the authorities felt that though opponents Nos. 2 and 3 were unauthorisedly occupying and were wrongfully in possession of the land, because the transfer by the operation of law was void under the provisions of the Act, the Collector had power to summarily evict the person in possession. The wordings used in the section were as under:

may be summarily evicted by the Collector.' The authorities thought that the word 'may' used in the section gave them discretion and once the power was discretionary they considered that the discretion must be exercised in favour of the person who had paid money for the purchase of the land and who had spent a large amount for irrigating the land and that is how the discretion was exercised. The question now which is really of importance is whether the word 'may' used in Section 9(3) gives any discretion to the authorities concerned or whether the word 'may' is equivalent to the word 'shall' or the word must.

3. I may first refer to a case of Govindsingh Ramsinghbhai Vaghela v. G. Subbarao, Asstt. Collector. Dholka and Ors. reported in 11 G.L.R. at page 897. The Division Bench of this Court in paragraph 17 observed as under:

17. RE. GROUND (F) : It is no doubt true that the words used in Section 9 Sub-section (3) are only these, namely, 'Any person...may be summarily evicted by the Collector' and the sub-section does not say in so many terms that having summarily evicted such person, the Collector may restore possession of the land to the original owner but that is clearly implicit in the sub-section. The Collector is given the power to summarily evict a person when it is found that by reason of the transfer being void, he is unauthorizedly in occupation or wrongfully in possession of the land. And this power is obviously conferred upon the Collector to secure enforcement of the salutory and beneficent provisions of the Act. If transfer has been made contrary to the provisions of the Act, it must not have any effect at all and the status quo ante must be restored, for otherwise the object of the Act would be frustrated. Even after the transfer is declared void, the transferor may not take action to recover possession of the land, for then he would have to return the purchase price received by him which he may not want to do and in that event the land would continue to remain in possession of the transferee and the object of the legislation would be defeated. The Legislature, therefore, did not leave it to the transferor to adopt proceedings for recovering possession of the land but provided that the Collector may summarily evict the transferee or any other person who is unauthorizedly in occupation or wrongfully in possession of it, so that possession could be restored to the transferor and the effect of the transfer obliterated. It could not have been intended by the Legislature that the Collector after evicting the unauthorised occupant should retain possession of the land with himself or it should be appropriated to the use of the State. If such had been the intention, there would have been clear and express words to that effect. There being no such provision, the Collector must obviously, after summarily evicting the unauthorised occupant, hand back possession to the person who is the owner of the land. I he Collector cannot, in the absence of specific provision to that effect, retain possession as against the owner of the land. This ground is, therefore, without substance and must be rejected.

4. Thereafter in the case of Kikubhai DayaljiDesai v. Kishorchandra A. Desai and Anr. while deciding Special Civil Application No. 51 of 1971 on 26-7-1976, Justice J. B. Mehta (as he then was) observed as under:

Therefore. 'may' in such context must be read as 'shall', when there is something in nature of thing to be done which made it the duty of the person on whom the power was conferred to exercise that power. Here, as the Division Bench pointed out such power having been conferred when this statutory condition was satisfied of the person being in unauthorised occupation or wrongful possession, or wrong-fully in possession because the transfer or partition had been void under the Act, the entire provision would be defeated or frustrated unless 'may' is interpreted as must' so that the effect of the transfer is obliterated and possession is restored to the rightful owner.

5. In this view of the legal position declared by this Court the word 'may' occurring in Section 9(3) of the Act is required to be read as 'shall' or 'must' and, therefore, the Collector was bound to summarily evict the person who was unauthorisedly occupying or who was wrongfully in possession of any land, the transfer of which by operation of law was void under the provisions of the Act. Under these circumstances the orders passed by the Prant Officer, Petlad and the Deputy Secretary which are produced at annexures B and C are quashed and set aside and it is directed that opponents Nos. 2 and 3 may be summarily evicted from the lands which they are in possession because of a transfer which is void and the land may be restored to the petitioners. 5. Rule modified to the above extent with no orders as to costs.


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