SCA/3802/1989 1/5 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 3802 of 1989 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 ? ============================================================== KALIDAS DAHYABHAI PATEL - Petitioner(s) Versus DY COLLECTOR OF DHOLKA & 1 - Respondent(s) ============================================================== Appearance : MR RA PATEL for Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6 - 5. MR SIRAJ GORI, AGP for Respondent(s) : 1, UNSERVED-EXPIRED (R) for Respondent(s) : 2, ================================================================== CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 09/01/2006 ORAL JUDGMENT 1.In the present petition, the petitioners have challenged an order dated 23-09-1986 passed by the Deputy Collector, Dholka as upheld by the Deputy SCA/3802/1989 2/5 JUDGMENT Secretary(Appeals) Revenue Department, Government of Gujarat by his order dated 28-07-1988. The proceedings pertain to land bearing survey no. 624 admeasuring O Acres and 36 Gunthas of Dholka Taluka Dholka. The petitioners had purchased the said land by a sale deed dated 15-03-1966. The authorities prima facie found that the sale transaction was opposed to the provisions of Bombay Prevention of Fragmentation and Consolidation of holdings Act(here-in-after referred to as “the said Act”). After issuance of notice to the petitioners, the Deputy Collector by his impugned order dated 23-09-1986 declared the sale as illegal, ordered to set aside the same and further directed that the petitioners be evicted from the land in question. The appeal filed by the petitioners before the Government failed and the Deputy Secretary rejected the same by his order dated 28-07-1988. 2.Primarily, two contentions have been raised on behalf of the petitioners. Firstly, it is contended that the authorities took cognisance of the sale transaction being opposed to the provisions of the said Act many years after the sale took place. It was contended that initiation of proceedings under the said Act were after SCA/3802/1989 3/5 JUDGMENT unreasonable period of time and, therefore, on account of delay and latches, it was not open for the authorities to examine the legality of the sale transaction. 3.The second contention raised on behalf of the petitioners was that at the time of purchase of land in question, the petitioners were the owners of contiguous land and if this aspect was taken into consideration, there was no breach of any of the provisions of the said Act. 4.During the course of arguments, learned advocate Shri R.A. Patel for the petitioners submitted that the petitioners would not raise the first contention regarding the alleged delay in initiation of the proceedings under the said Act and would endeavour to establish that the purchase of the land in question by the petitioners did not breach any of the provisions of the said Act on account of their holding contiguous land. 5.In this regard it can be noted that admittedly the petitioners had not produced any material before the SCA/3802/1989 4/5 JUDGMENT authorities below to establish that the petitioners hold land in the neighbouring area and that considering their holding, their purchasing of land in question was not opposed to any of the provisions of the said Act. 6.In view of the submissions made by the learned advocate for the petitioners that the petitioners are not agitating the averments with respect to the alleged delay in initiation of the proceedings under the said Act, I am inclined to remand the proceedings to the Deputy Collector for examination on merits afresh after permitting the petitioners to produce additional evidence to establish their contention that on the date of sale of land in question, they were the owners of contiguous land which would ensure that there was no breach of the provisions of the said Act in their purchasing land in question. Apparently, since no material was placed before the authorities below, such a question cannot be examined by this Court for the first time in a writ petition. 7.In the result, the petition is allowed in part. The impugned order passed by the authorities below are set aside, the proceedings are remanded to the Deputy SCA/3802/1989 5/5 JUDGMENT Collector for fresh consideration and decision on merits after permitting the petitioners to lead fresh evidence as noted here-in-above. Fresh proceedings may be concluded expeditiously. With these directions, the petition is disposed of. Rule is made absolute to the limited extent with no order as to costs. (Akil Kureshi,J.) (raghu)