SCA/7365/1992 1/4 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 7365 of 1992 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JIVANBHAI MANGALBHAI BARIA S/O.MANGALBHAI DESAIBHAI BARIA - Petitioner(s) Versus COLLECTOR & 1 - Respondent(s) ========================================================= Appearance : MR RR SHAH for Petitioner(s) : 1, 1.2.1,1.2.2 MR SAYTAM CHHAYA, AGP for Respondent(s) : 1, None for Respondent(s) : 2, MR AJ SHASTRI for Respondent(s) : 2.2.1,2.2.2 ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 08/07/2008 ORAL JUDGMENT Heard learned advocate Shri R.R.Shah for the petitioner and learned AGP Shri Chhaya for SCA/7365/1992 2/4 JUDGMENT respondent No.1. 2. The petitioner has challenged an order dated 18th December 1991 passed by the Deputy Secretary, Revenue Department, Government of Gujarat by which the said authority confirmed the order dated 29.6.91 passed by the Collector and th order dated 17.1.91 passed by the Deputy Collector. The Deputy Collector by his order was pleased to hold that the transfer of land bearing survey No.28 admeasuring 2 acres 30 gunthas of village Palanpur, Taluka Halol in favour of the petitioner as unauthorized. Consequently, he was pleased to confiscate the land and provide that the same shall stand vested in the Government. The order came to be passed in view of the fact that the original owner Kabhai Dabhai was holding the land as a new tenure land which he gave by way of so called gift to the petitioner by accepting a sum of Rs.3,000/- from him. This transaction took place on 10.3.87. Finding that the same was opposed to the conditions of grant of land, proceedings were initiated against the petitioner which ultimately culminated into the impugned orders passed by the Deputy Collector, Collector and the Revenue Secretary. 3. In the order, the Secretary in particular observed that the land was new tenure land despite which the same was transferred by the owner in favour of the petitioner by accepting a sum of Rs.3,000/- which was done without prior permission from the SCA/7365/1992 3/4 JUDGMENT Collector. 4. In view of the above undisputed facts, I see no illegality having been committed by the authorities below. I find that the petition is therefore devoid of merits. 5. The owner of the land in question could not have transferred the land in favour of any person without the permission of the Collector since the same was granted to him as new and unimpartible tenure. Though it is termed as gift, the owner had accepted consideration of Rs.3,000/- from the petitioner for transferring the land. The transaction was thus a clear sale and not a mere gift. The transfer of land, therefore, could not have been effected without the prior permission. Erstwhile owner Kabhai subsequently made a will on 22.9.87 and bequeathed the sand land in favour of the petitioner. However, he having earlier transferred the land to the petitioner and such transfer being opposed to the provisions of the Bombay Tenancy and Agricultural Lands Act or Bombay Land Revenue Code making the land liable for confiscation, subsequent will would have no effect on the illegal transaction already entered into. 6. For the above reasons, the petition is required to be dismissed. The Secretary, however, in his impugned order observed that when the owner of a new tenure land does not have any heirs and wishes to SCA/7365/1992 4/4 JUDGMENT transfer the same to his near relatives, the same could be done with the permission of the Collector. These factors are present in the present case. Therefore, while dismissing the petition, it is left open for the petitioner to approach the Government by making a representation for regularizing his possession of the land. I express no opinion on the merit of such representation leaving it for the Government to consider the same in accordance with the rules and prevailing policy. The petition is therefore, dismissed. Rule is discharged. (Akil Kureshi, J.) (vjn)