Chelabhai Becharbhai Kaidva thr''h Poa Shivrambhai Patel and Others vs Deputy Collector and 1 Another

Rajesh H. Shukla, J.—The present Petition has been filed by the by the Petitioners under Articles 14 and 226 of the Constitution of India as well as under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Bombay Tenancy Act") for the prayers inter alia that the impugned order passed by the Deputy Collector in Tenancy Case No. 3 of 2005 may be quashed and set aside, on the grounds stated in the petition. Heard learned Advocate Shri Kuntal Joshi for the Petitioner and learned AGP Shri Manan Mehta for the Respondents.

Learned Advocate Shri Joshi has referred to the papers and submitted that as stated in the petition, the land was purchased by a registered sale deed from one Patel Laxmichand Bhaichandbhai in 2003. The predecessor-in-title Shri Laxmichand Bhaichandbhai Patel has been cultivating since 1997-98. He therefore submitted that the proceedings, which have been initiated in purported exercise of power u/s 65 of the Bombay Tenancy Act by issuing notice in 2005, that the land in question has remained uncultivated, and therefore, as to why the same should not be taken over by the Government for breach of Section 65 of the Bombay Tenancy Act. He submitted that the order passed is illegal on the ground that the land has not actually remained without any cultivation and no opportunity has been given. He submitted that, had any such opportunity been given, then the explanation could have been offered for the same. Further, learned Advocate has submitted that there is an amendment pursuant to the Gujarat Amendment Act No. 10 of 2009, by which the provisions of Section 65, 65A and 66 have been deleted as stated in Clause VII of the Amendment Act. He therefore submitted that since the statutory provisions itself have been deleted and there is no mechanism for reverting the land in question after 10 years, the present petition may be allowed. He further submitted that in any case, from 28.11.2005, ten years are about to be over, and therefore, the land should revert to the petitioner.

Learned AGP Shri Manan Mehta however submitted that the Act is prospective and the order which has been passed in exercise of statutory powers cannot be said to be without any jurisdiction. He therefore submitted that after the period of 10 years, in any case, the land is required to be reverted to the petitioner as per the statutory provisions.

In view of this submission, without any elaborate discussion, since the Gujarat Amendment Act No. 10 of 2009 provide for deletion of Sections 65, 65A and 66 of the Bombay Tenancy Act, the whole exercise would be therefore without any justification. Though, when the notice was issued and the powers were exercised, it can be said that the provisions of the Act was in force, and therefore, it is not without jurisdiction. But the fact remains, the said provision has been deleted as stated above, and in any case, 10 years are about to be over, the land in question has to be reverted. Therefore, even otherwise, when the land is required to be reverted after the expiry of 10 years, and when, almost 9 years have expired, the interest of justice would be served if the present petition is allowed.

Therefore, considering the facts and circumstances and the issue involved, the present petition deserves to be allowed. The prayer in terms of paragraph 11(a) deserves to be granted. The impugned order at Annexure-D is hereby quashed and set aside. It is also directed that as per the statutory provisions of Section 65 as existed, the land is required to be returned to the owner after 10 years, when it is taken by the government for the administration and management. Therefore, it shall be accordingly returned back to the petitioner immediately within a reasonable period not later than 3 months on usual terms. Rule is made absolute.