NEUTRAL CITATION
C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 41 of 2007
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE BHARGAV D. KARIA
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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 or any order made thereunder ? ========================================================== PATEL HIRABHAI DHANJIBHAI Versus PATEL MADHAVLAL KACHARABHAI SINCE DECD. THRO HEIRS & L.RS.
& 2 other(s) ========================================================== Appearance:
MR RASESH H PARIKH(3862) for the Petitioner(s) No. 1 MR.HEMANG H PARIKH(2628) for the Petitioner(s) No. 1 DELETED for the Respondent(s) No. 1 MR NIKUNJ KANARA, AGP for the Respondent(s) No. 2,3 MR MP SHAH(2418) for the Respondent(s) No. 1.1,1.3,1.4,1.5,1.6,1.7 MR ROBIN PRASAD WITH MR VIKRAM J THAKOR(2221) for the Respondent(s) No. 1.2 MS. KRUTI M SHAH(2428) for the Respondent(s) No. 1.1,1.3,1.4,1.5,1.6,1.7 ========================================================== CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA Date : 07/10/2023 Page 1 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined CAV JUDGMENT
1. Heard learned Senior Advocate Mr. H.M. Parikh with learned advocate Mr. Rashesh H. Parikh for the petitioner and learned advocate Mr. Robin Prasad for learned advocate Mr. Vikram J. Thakore for respondent nos. 1 and 2 and learned Assistant Government Pleader Mr. Nikunj Kanara for the respondent State.
2. By this petition under Article 226 of the Constitution of India, the petitioner has challenged the order dated 19.07.2006 passed by Gujarat Revenue Tribunal (For short "the Tribunal") in Revision Application TENBA No.52/2004 and further prayed to restore order dated 24.12.2002 passed by Mamlatdar and ALT, Mansa which was confirmed by order dated 22.01.2004 Page 2 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined passed by the Deputy Collector (Appeals), Gandhinagar in Appeal No.30/2003.
3. It is the case of the petitioner that land bearing Survey No.1598 situated in the Sim of village Mansa, District Gandhinagar, admeasuring 7 acres and 16 gunthas was belonging to late Madhavlal Kacharabhai Patel and his brother. Thereafter said land was partitioned and after partition land admeasuring 1 acre 34 gunthas had come to the share of late Madhavlal Kachrabhai Patel.
4. It is the case of the petitioner that the petitioner was cultivating the land since 1991 and name of the petitioner was mutated in the revenue record in the year 1993-1994 as tenant-ganotia and thereafter Page 3 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined by a registered sale deed dated 05.04.1995, the petitioner purchased the land admeasuring 1 acre and 34 gunthas from late Madhavlal Patel and necessary mutation entry was also made in the revenue record to that effect.
5. It is the case of the petitioner that the petitioner moved an application before the Mamlatdar and ALT, Vijapur as the petitioner projected himself as a tenant for cultivation of the said land. Mamlatdar and ALT, Vijapur by order dated 23.05.1995 confirmed the sale in favour of the petitioner in the capacity of tenant.
6. Thereafter, suo motu proceedings under section 76A of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter Page 4 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined referred to as "the Tenancy Act") was initiated by the Deputy Collector, Mansa being Revenue Case No.112/1996.
7. Deputy Collector, Mansa remanded the matter back to the Mamlatdar and ALT, Vijapur who by order dated 07.03.1998 held that the transfer was illegal and further directed to initiate proceedings under section 63 of the Tenancy Act.
8. The petitioner being aggrieved by order dated 07.03.1998 preferred Tenancy Appeal No.80/1998 before the Deputy Collector, Gandhinagar which was also dismissed by order dated 10.11.1998.
9. The petitioner, thereafter, challenged the order passed by the Deputy Collector before the Tribunal in Revision Page 5 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined Application TENBA No.484/1998.
10. Tribunal by order dated 29.11.2000 allowed the Revision Application setting aside the order passed by both the authorities below, remanding the matter back to Mamlatdar and ALT, Mansa.
11. Mamlatdar and ALT, Mansa in the remand case heard the matter and by judgment and order dated 24.12.2002 restored the order dated 23.05.1995 whereby sale in favour of the petitioner was confirmed.
12. Late Madhavlal Patel being aggrieved by order dated 24.12.2002 preferred Appeal No.30/2003 before the Deputy Collector (Appeals), Gandhinagar. Deputy Collector (Appeals) by order dated 22.01.2004 Page 6 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined dismissed the appeal.
13. Thereafter, late Madhavlal Patel preferred Revision Application being TENBA No. 52/2004 before the Tribunal.
14. The Tribunal by impugned order dated 19.07.2006 allowed the Revision Application holding that the petitioner as a non-agriculturist was trying to become an agriculturist.
15. The petitioner being aggrieved by the order of the Tribunal passed on 19.07.2006 has preferred this petition.
16. Learned Senior Advocate Mr. H.M. Parikh with learned advocate Mr. Rashesh Parikh for the petitioner submitted that Page 7 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined it is not in dispute that the petitioner was cultivating the land in question prior to the year 1993-1994 and his name was mutated in the revenue record. The petitioner was declared as a tenant of the land in question by the order passed by the Circle Officer dated 3.01.1995 in Khed-hak case No.1/94-95 and necessary mutation entry No.13185 dated 21.02.1995 was certified which has achieved finality. 16.1) Learned Senior Advocate Mr. Parikh referred to and relied upon circular dated 30.10.1971 issued by Government of Gujarat, Revenue Department, which empowers Mamlatdar/Mahalkari including the Circle Officer and Avalkarkun to decide the matter about a person cultivating the land as a tenant or otherwise. It was Page 8 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined therefore, submitted that once the petitioner was held to be a tenant by the Circle Officer who was empowered and authorised to declare a person cultivating agriculture land as tenant and necessary entry having been mutated in the revenue record, Tribunal could not have come to the conclusion that the petitioner is not an agriculturist and was not entitled to purchase the agricultural land from the landowner. It was submitted that it was between the landowner and the tenant and therefore, such registered sale deed could not have been declared as null and void. 16.2) Learned Senior Advocate Mr. Parikh heavily relied upon the order dated 3.01.1995 placed on record along with additional affidavit of the petitioner. It Page 9 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined was submitted that the Tribunal has failed to consider the material evidence of the order of Circle Officer which is referred to and relied upon by the Mamlatdar and ALT as well as Deputy Collector while restoring order dated 23.05.1995. 16.3) It was further submitted that the Tribunal has also failed to discuss with regard to the status of the petitioner as an agriculturist inasmuch as unless and until the order passed by the Circle Officer declaring the petitioner as tenant is not set aside by any competent authority, status of the petitioner would continue as an agriculturist and the same could not have been questioned while considering the validity of sale deed executed by the landowner in favour of the Page 10 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined petitioner.
16.4) It was submitted that the Tribunal has exceeded its jurisdiction by interfering with concurrent findings of fact recorded by Mamlatdar and ALT as well as Deputy Collector (Appeals) without there being any contrary evidence which has otherwise attained finality. It was submitted that the Tribunal has failed to consider the undisputed fact that the petitioner was cultivating the land prior to two years from the date of sale and has been declared as an agriculturist by Circle Officer accordingly. 16.5) Learned Senior Advocate Mr. Parikh has also filed additional affidavit dated 27.02.2023 of one Dineshkumar Hirabhai Page 11 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined Patel who is son of the petitioner stating on oath that Civil Suit filed by the petitioner against late Madhavbhai Kachrabhai Patel being Regular Civil Suit No.5/2001 for declaration and injunction was withdrawn on 05.04.2003 in view of interim order granted in favour of the petitioner and on assurance given by the defendant that he would not disturb the possession. It was further stated in the affidavit that no litigation is pending between the parties in the Civil Court.
17. On the other hand, learned Assistant Government Pleader Mr. Nikunj Kanara for the respondent State and learned advocate Mr. Robin Prasad for learned advocate Mr. Vikram Thakor for respondent nos. 1 and 2 were heard and both the learned advocates Page 12 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined supported the order of the Tribunal contending that the petitioner has adopted a modus operandi to become an agriculturist though the petitioner was a non-agriculturist. It was pointed out from the findings arrived at by the Tribunal that the petitioner was doing the business of agricultural instruments which is supported by the panchnama drawn by the Circle Officer. It was also submitted that name of late Madhavlal Kachrabhai Patel was recorded as Ganotiya since 1971 which has achieved finality.
17.1) It was also pointed out that the petitioner was doing business other than agriculture and monthly income of the petitioner was more than Rs. 5000/- as emerging from the evidence led before both the authorities below which is not denied Page 13 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined by the petitioner. It was also submitted that the petitioner was earning income from Saw mill, rent from Shopping Centre and Dining Hall and therefore, the case was remanded twice to the Mamlatdar and ALT.
17.2) It was also submitted that if the petitioner would have been a genuine tenant, then proceedings under section 70(b) of the Tenancy Act would have not been initiated to decide whether the petitioner is or was a tenant or protected tenant or a permanent tenant or not. 17.3) It was submitted that the petitioner would not have made an application under section 84C after execution of the sale deed for regularisation of the land if he had been Page 14 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined a genuine tenant which is not natural and only with a view to become an agriculturist, the petitioner has adopted such a modus operandi of declaring himself as a tenant by showing that he was cultivating the land in question for two years prior to the date of registered sale deed.
17.4) It was therefore, submitted that the Tribunal has rightly reversed the orders passed by the Mamlatdar and ALT and Deputy Collector holding that sale transaction is contrary to the provisions of the Tenancy Act and therefore, no interference may be made in the impugned judgment and order passed by the Tribunal.
18. Having heard the learned advocates for Page 15 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined the respective parties and having considered the facts of the case as well as reasonings given by the impugned judgment of the Tribunal, it appears that the petitioner has adopted a modus operandi to become agriculturist by purchasing the agricultural land though he was not an agriculturist. The petitioner has not denied that he was not earning livelihood through agricultural income and the fact which has come on record that the petitioner was doing other business is also not in dispute. The Tribunal has therefore, rightly come to the conclusion that the petitioner is not covered by definition of section 2(2) of the Tenancy Act which defines "agriculturist" and reads as under:
"2(2) "agriculturist"
means a person who
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NEUTRAL CITATION
C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023
undefined
cultivates land
personally"
19. Section 63 of the Tenancy Act provides for prohibition of transfer of Agriculture land to non-agriculturist and reads as follows:
"63. Transfers to non-
agriculturists barred.- (1) Save as provided in this Act,-
(a) no sale (including sales in execution of a decree of Civil Court of for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) gift, exchange or lease of any land or interest therein, or
(b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, [or]
(c) no agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein shall be valid in favour of a person who is not an agriculturist [or who being an Page 17 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined agriculturist cultivates personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not an agricultural labourer]:
Provided that the Collector or an officer authorised by the (State) Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, or for such agreement] on such conditions as may be prescribed.
[Provided further that, no such permission shall be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees..."
20. Section 84C of the Tenancy Act provides for disposal of land of which transfer is invalid as under:
"84C. Disposal of land, transfer or acquisition of which is invalid.- (1) Where in respect of the transfer or acquisition of any land made Page 18 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined on or after the commencement of the Amending Act, 1955, the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of the Act, the Mamlatdar shall issue a notice and hold an inquiry as provided for in section 84B and decide whether the transfer or acquisition is or is not valid..."
21. On perusal of the above provisions and considering the facts of the case, it appears that the petitioner with a view to become an agriculturist has managed to enter his name in the revenue record as tenant so as to save the transaction of purchase of land from rigors of section 63 and 84C of the Tenancy Act with the help of the Circle Officer.
22. The Tribunal has therefore, rightly Page 19 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined come to the conclusion that the findings arrived at by both the Mamlatdar and ALT and Deputy Collector are perverse so as to facilitate the petitioner who is a non- agriculturist to become an agriculturist to enable him to purchase the agricultural land. It is also pertinent to note that the sale deed is executed by the son of the petitioner as power of attorney holder of late Madhavlal Kachrabhai Patel. Thus son of the petitioner has executed sale deed in favour of his father as Power of Attorney holder of the landowner which clearly shows that if the petitioner had bona fide intention then he would have directly entered into sale deed with land owner Madhavlal Kachrabhai Patel. The Tribunal has also considered the fact that whether the amount of sale consideration Page 20 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined is paid or not is also not borne out from the record as there was no evidence to that effect and therefore, the entire transaction is held to be doubtful.
23. Issue was raised before the Tribunal with regard to locus standi of late Madhavlal Kachrabhai Patel to challenge the order passed by the Deputy Collector, Mamlatdar and ALT as sale deed was executed by him in favour of the petitioner. Tribunal has come to the conclusion that in view of facts emerging from the record with regard to modus operandi adopted by the petitioner to become an agriculturist, question of locus becomes insignificant.
24. Learned Senior Advocate Mr. Parikh Page 21 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined referred to and relied upon the decision of Division Bench of this Court in case of Navuji Lalji Vaghela v. State of Gujarat and others (Judgment dated 28.04.2011 passed in Letters Patent Appeal No.433 of 2011 in Special Civil Application No.6168/2010) wherein it is held by Division Bench that the person who has executed sale deed cannot take undue advantage of the proceedings initiated by the revenue authority more particularly, in the land matters after entering into transaction with eyes wide open knowing fully well that transactions is in breach of provisions of the Tenancy Act and after pocketing huge amount when transaction is declared invalid and subsequently, if the purchaser succeeds, the original owner would come before the court saying that Page 22 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined transaction be declared invalid. Such practice needs to be deprecated.
25. It is true that if the person with open eyes enters into a transaction then he cannot have any locus to challenge the same in case the purchaser of the land succeeds before the revenue authority. However, in the facts of the case as rightly held by the Tribunal, the petitioner has adopted a modus operandi to become an agriculturist by entering his name in revenue record as a tenant. It is also found by the Tribunal that the sale deed was executed by the son of the petitioner as a Power of Attorney holder of the landowner without there being any evidence on record with regard to payment of sale consideration. When the Page 23 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined petitioner, in order to circumvent the provisions of the Tenancy Act has cleverly adopted the modus operandi to become an agriculturist by entering his name in the right to cultivate the agriculture land in revenue record as a tenant and in light of the evidence in the form of panchnama as well as other evidence recorded by Circle Officer, the petitioner was doing other businesses and was a non- agriculturist and therefore, by only showing his name in the revenue record as a tenant to become an agriculturist on the basis of order dated 3.01.1995 passed by the Circle Officer, the petitioner cannot become an agriculturist as is found by the Tribunal as a matter of fact. The Tribunal has therefore, rightly held that both the Mamlatdar and ALT and Deputy Collector has Page 24 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023 NEUTRAL CITATION C/SCA/41/2007 CAV JUDGMENT DATED: 07/10/2023 undefined given a perverse findings in favour of the petitioner and therefore, in such circumstances, the Tribunal found that the question of locus is not relevant when the transaction itself is contrary to the provisions of sections 63 and 84C of the Tenancy Act.
26. In view of the foregoing reasons, petition fails and is accordingly dismissed. Rule is discharged.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 25 of 25 Downloaded on : Sat Oct 07 20:47:56 IST 2023