Hemaben Aashik Narsinh vs State Of Gujarat
2021 Latest Caselaw 10563 Guj

     C/SCA/3744/2007                                 JUDGMENT DATED: 04/08/2021



             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 3744 of 2007
                                   With
               R/SPECIAL CIVIL APPLICATION NO. 3745 of 2007

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SONIA GOKANI

==========================================================

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 ?

==========================================================
                       HEMABEN AASHIK NARSINH & 1 other(s)
                                    Versus
                         STATE OF GUJARAT & 10 other(s)
==========================================================
Appearance:
MR AB MUNSHI(1238) for the Petitioner(s) No. 1,2
 for the Respondent(s) No. 1
MS.JIRGA JHAVERI, AGP (1) for the Respondent(s) No. 1
MR MP PRAJAPATI(677) for the Respondent(s) No.
10,11,3,4,4.1,4.2,4.3,4.4,4.5,5,6,7,8,9
MRS KETTY A MEHTA(464) for the Respondent(s) No. 2
==========================================================

    CORAM:HONOURABLE MS. JUSTICE SONIA GOKANI

                                 Date : 04/08/2021

                                ORAL JUDGMENT

1. The petitioners have preferred this petition, under Article 226 and 227 of the Constitution of India, raising the following issues before this Court:-

1. Whether the Gujarat Revenue Tribunal (hereafter referred to

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

as "the Tribunal") committed an error in cancelling the order dated 25-2-2004 passed by the Deputy Collector, Choryasi Prant, Surat, after the lapse of period of about two years?

2. Whether the Tribunal committed an error in entertaining the revision application filed by respondents No.4 to 11 who had no locus standi to file such a revision application, they having sold the land in question the petitioner No.1 herein and thereafter to respondents No.2 and 3 herein by registered sale-deeds and had pocketed an amount of Rs.12 lacks from the petitioner No.1 towards full consideration of the said land?

3. Whether the Tribunal committed an error in interfering with the order dated 25-2-2004 passed by the Deputy Collector, Surat which was an executive order passed in exercise of power under Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereafter referred to as "the Tenancy Act"), whereby the Deputy Collector had granted permission in respect of the land in question?

4. Whether the Tribunal committed an error in not appreciating the law laid down by this Honourable Court to the effect that a person who has sold the property legitimately, has no right, title or interest surviving in the said land and therefore, he has no right to challenge any order passed in favour of a purchaser?

5. Whether the Tribunal committed an error in ignoring the guidelines laid down by the Revenue Department of the Government of Gujarat in its Resolution dated 29-4-1980 which were/are required to be followed by the concerned competent authorities while dealing with cases of grant of permission under Section 63 of the Tenancy Act?

6. Whether the Tribunal committed an error in not appreciating the law laid down by the Honourable Supreme Court in its decision reported in 10 G.L.R. page 992 to the effect that proceedings for revising any order cannot be initiated after the lapse of a few months?

7. Whether the action on the part of the Tribunal in cancelling permission granted to petitioner No.1 is violative of petitioners' fundamental rights guaranteed under Articles 14,19 (1) (e) and (g) and 300 A of the Constitution of India?"

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

2. This concerns the land bearing Revenue Survey No.470 - old (New No. 303) admeasuring 20500 H.Sq. Mtrs of Village - Vesu, Taluka

- Choryasi, District - Surat owned possessed and cultivated by the respondents no.4 to 11.

On 05.05.2000, the respondents no.4 to 11 executed an agreement to sell in respect of the said land in favour of petitioner no.1 as averred in the petition and he paid the full amount of consideration of the said land of Rs.12,00,000/- to the respondents no.4 to 11 by cheques.

3. On 09.09.2003 the two registered sale deeds have been executed in favour of petitioner no.1 concerning this land and handed over the vacant and peaceful possession of the said land to the petitioner no.1.

On 19.02.2004 Mutation entry no.3290 came be effected in Village Form No.6 in respect of the said sale transactions.

4. According to the petitioner no.1, she purchased the lands as she intended to construct a college building on the said land and to start a college which has affiliated with Bloomfield College, New Jersey in U.S.A.

5. It is further avvered that the said land came be to included in the residential Zone in the revised development plan sanctioned on 26.08.1997 submitted to the State Government.

On 17.10.2003, the petitioners applied to SUDA (Surat Urban Development Authority) for issuing a Zoning Certificate in respect of the land and SUDA issued such certificate stating that the land in question is included in the residential zone in revised

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

development plan.

6. The petitioner no.1 made an application to the Deputy Collector, Choryasi Prant, Surat for grant of permission under Section 63 of the Tenancy Act on 20.11.2003 and such permission was obtained on 25.02.2004.

7. It is lamented by the petitioner no.1 that the respondents have no locus to challenge the said order of Deputy Collector for their having sold the land to the petitioner no.1. A revision application was preferred before the Tribunal challenging the said order. The Tribunal passed an order on 09.02.2006 against the present petitioners and therefore, the same has aggrieved the petitioners for questioning the said order of the revisional authority Special Civil Application No.10745 of 2006 came to be filed by the petitioner. As all requisite papers were not produced on 10.07.2006, the petitioner chose to withdraw the same with a liberty to file a fresh petition. After some time, the present petitioner came to be filed as in the interregnum unprecedented floods in the City of Surat and surrounding villages had hampered the pace of filing, therefore, their chose to question the action on the part of the Tribunal which according to the petitioner is arbitrary and discriminatory.

8. The cancellation of permission according to the petitioners, under Section 63 of the Tenancy Act is violative of the petitioner's constitutional right guaranteed under Article 300A of the Constitution of India.

9. Therefore, the petitioners have prayed the following prayers:-

(A) This Honourable Court may be pleased to issue a writ of

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

certiorari or any other appropriate writ, order or direction quashing and setting aside the impugned order dated 10-11-2005 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.B.S. 13 of 2004 at Annexure 'H' hereto; and consequently restoring the order dated 25-2-2004 passed by the Deputy Collector, Choryasi Prant, Sraut whereby he had granted permission under section 63 of the Tenancy Act in respect of the land in question;

(B) Pending admission, hearing and final disposal of this petition, the Honourable Court may be pleased to stay execution, operation and implementation of the order dated 10-11-2005 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN B.S. 13 of 2004;

(C) Such other and further relief or reliefs as may be deemed just and expedient in view of the facts and circumstances of the case may kindly be granted;

(D) Costs of this petition may kindly be awarded to the petitioners.

10.This Court at the time of admission noted that two civil suits No.49 of 2004 and 50 of 2004 were pending, questioning the genuineness of the very sale of the land in question. The Court also took note that the sale whether was genuine or bogus or fraudulent, was needed to be decided by the Civil Court and the permission under Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948(hereinafter referred to as "the Act") would depend upon the outcome of the proceedings before the Civil Court. For balancing the rights of the parties by way of an interim order, the Court directed that in the event of the proceedings of the Civil Court, result in holding the sale to be genuine, the post facto permission granted under Section 63 of the Act shall continue to operate. However, in the event of the Civil Court finding the sale to be bogus or non-genuineness. The permission granted under Section 63 of the Act shall not continued to operate. These directions also were made subject to the final order, which may be passed by this

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

Court in the present petition. The Court of learned civil judge was also directed to take an independent view of the matter, while deciding the genuineness and non genuineness of the sale which was under challenged before it.

11.An affidavit in reply came to be filed by the respondents, where the respondents denied all the averments set out in the petition and contented that petition suffers from delay and latches as the order of the Revenue Tribunal is dated 10.11.2005 and the same has been challenged by way of the present petitioner. Earlier Special Civil Application No. 10745 of 2006 was preferred in the year 2006 and was not moved till June 2006 and thereafter it was withdrawn on 10.07.2006 and the present petition was filed in the month of October, 2006, the delay would dis-entitled the petitioner from getting reliefs.

12.It is contended that the basic fact that there was a registered sale deed entered in favour of the present petitioner no.1 for consideration of Rs.12,00,000/- itself is disputed and the proceedings are pending challenging the registered sale deed, as having been entered by the bogus Power of Attorney for which the Civil Court had also given its prima facie finding in Special Civil Suits No.49 of 2004 and 50 of 2004. It was also the part of the investigation by the Income Tax Authorities, wherein the advocate for the husband of the present petitioner no.1 had admitted that the said amount of Rs.12,00,000/- was not towards the purchase of the land but was as a loan to various persons, which was recovered and credited in the Books of Accounts.

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

13.According to the respondents, the Special Civil Suit No.50 of 2004 is challenging the legality and validity of the sale deed made in favour of the present petitioner no.1 by the Power of Attorney. The respondents no.1 and 2 are legal and valid purchasers of the land in question from the respondents no.4 to 11 and they have also challenged the so called registered sale deed made in favour of the petitioner no.1. It is also the say of respondents that the learned 3 rd Additional Senior Civil Judge, Surat by his order dated 27.01.2006 passed in Special Civil Suit No. 50 of 2004 has given the prima facie findings that the so called registered sale deed dated 09.09.2003/08.12.2003 cannot be implemented for any purpose like making entry in the revenue record or for making any entry by any Government or Semi- government authorities and the petitioners and other defendants were restrained from interfering with the legal and valid possession of the respondents no.1 and 2 who are the plaintiffs in Special Civil Suits No.49 of 2004 and 50 of 2004 and the present petitioners herein and other defendants are also restrained from transferring in any manner the dealing with the land in question on the strength of the registered sale deed no.6826 dated 09.09.2006/08.12.2006.

14.It is further contended that before the Income Tax Authorities, the petitioner's husband has also admitted that the amount given to Shri Jayantbhai Vallabhbhai Patel - respondent no.4 was not towards purchase of land, but it was loan given, which was returned, the entire premise of transaction of sale by payment of Rs.12,00,000/- is non existent and it is based on mis-statement of fact.

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

15. It is further urged that the petitioner no.1 has no right, title or interest over the land in question and therefore, they cannot get any permission from the authorities under Section 63 of the Bombay Tenancy and Agricultural Lands Act as that would create further complications into the title dispute between the parties. He therefore, urged that there is being a correct interpretation of Section 63 of the Act by the concerned authority and therefore, Gujarat Revenue Tribunal has rightly set aside the order of the Deputy Collector and no interference is desired.

16.An affidavit in rejoinder is also filed, which may not be required any further direction/violation.

17.On 04.09.2010, both the Civil Suits No.49 of 2004 and No.50 of 2004 filed by the private respondents and Special Civil Suit No.5 of 2007 came to be disposed of in wake of the compromise arrived at between the parties.

18.The Compromise decree passed in Special Civil Suit No. 5 of 2007 is also produced before this Court. The compromise pursis which has been filed in all the three suits, is also forming the part of the record.

19.It would be noticed that Special Civil Suit No.5 of 2007 on 04.09.2010 learned 2nd Additional Senior Civil Judge, Surat has recorded that parties to the suit and the learned advocates for the parties were present for admitting the contents written compromise filed before this Court. They also have recognize the signature and thumb impression, placed in the deed of compromise. The Court accepts the same and ordered the deed of compromise to be part of

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

the record. Thereafter, the decree came to be passed. This Could be noticed that Special Suit No.5 of 2007 was preferred by the present petitioner Hamaben - petitioner no.1 against the present respondents Ramjibhai Dahyabhai Baldaniya, Arjanbhai Lumbabhai Hadiya and heirs and legal representatives of Jayantibhai Vallabhbhai Patel as respondent no.4 and also against the Valiben Thakorebhai Patel, Ratuben Valabhai, Sureshbhai Thakorebhai Patel, Pareshbhai Thakorebhai Patel, Hansaben Thakorebhai Patel, Manjulaben Thakorebhai Patel and Smitaben Thakorebhai Patel. Petitioner no.2 herein also is impleaded party defendant in the said suit.

20.Concerns the land bearing survey no. 470 (old) and 303 (new) Rameshbhai Dhanjibhai Patel has been declared as a owner of the 32% of the total plot of 14.768 sq. mtrs. whereis on the southern plot 10042.00 sq.mtrs. as per the final plot 68% share is of the petitioner no.1, all the details have been incorporated and the decree to that effect has been drawn by the Court concerned. This has been finalized in the year 2010, no challenge thereafter has been made to this by any way and to attained its finality. Respondents having finally accepted that the petitioner no.1 has exclusive owner of the property in question to an extent of 68% of the final plot area, that the private respondents also have no objection to grant of permission under Section 63 of the Tenancy Act. It also would clearly amount to the respondent having aggrieved to have sold the property legitimately to the petitioner no. 1 and the right, title and interest in the land in question. The question which had been raised before this Court is to the effect that whether the order passed by the Deputy Collector, Choryasi

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

Prant, Surat dated 25.02.2004 in exercise the power of under Section 63 of Tenancy Act whereby Deputy Collector granted permission in respect of the land in question deserved any interference at the ends of the revisional authority.

21.The Court also looks the guidelines issued by the Government of Gujarat and its resolution dated 29.04.1980, otherwise required to be followed by the competent authorities while dealing with the cases for grant of permission of under Section 63 of the Tenancy Act.

22.The order of cancellation of permission granted by the Deputy Collector to the petitioner no.1, therefore, whether requires any interference and more particularly in wake of that complete absence of any challenge from the private respondents and respondents having compromised before the competent Civil Court in Special Civil Suits No.49 of 2004 and 50 of 2004 5 of 2007.

23.It is to be noted that the challenged before the Revenue Tribunal was to the judgment and order of the Deputy Collectoer, Chorayasi Prant, Surat, on 25.02.2004 by which the Deputy Collector was granted post facto permission in favour of the petitioner in respect of the transaction entered into by which the petitioner has purchased the land situated at Village - Vesu, Taluka - Choryasi, District - Surat bearing 470 - old (New No. 303) admeasuring 20500 H.Sq. Mtrs of by registered sale deed dated 09.09.2003 and another land situated at Village :- Vesu bearing 470 - old (New No. 303), earlier was also admesuring 10154 sq.mtrs. by registered sale deed dated 09.09.2003. Original owners respondents no.4 to 11 have again executed sale deed on 16.02.2004 in favour of the

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

respondents no.2 and 3. The respondents no.2 and 3 and original owners filed Special Civil Suit No.49 of 2004 challenging the registered sale deed 6827 alongwith prayer to quash and set aside the order of Deputy Collector granting post facto permission on 25.02.2004. The original owners also filed Civil Suit No.50 of 2004 before the Civil Judge, Surat challenging the registered sale deed 09.09.2003 having registration sale deed 6826 alongwith the prayer to quash and set aside the order of Deputy Collector for granting post facto permission in favour of the present petitioners.

24.Special Suit No.5 of 2007 was filed before the Principal Civil Judge (SD), Surat for declaration and injunction that the petitioner no.1 Hemaben and others have purchased the land by registered sale deed dated 09.09.2003 having registration nos. 6826 and 6827 and to set aside the registered sale deed dated 16.02.2004 bearing registration no. 1546 executed in favour of the respondents no.2 and 3.

25.Compromise has been arrived at between the parties in the suits as mentioned which hereinabove, it is clearly mentioned that - Hamaben - petitioner no.1 is an agriculturist as she got the land from her parental side and they belonged to Khoja family and got ancestral lands.

26.The Revenue Tribunal set aside the order of the Deputy Collector granted post facto permission on the premised that petitioner no.1 was not an agriculturist, in fact, it has been admitted by the respondent herein as also noted in deed of compromise that ancestral of petitioner no.1 was holding land at Village: Fulgam,. Taluka: Vbadhvan, District: Surendranagar bearing survey/block

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

no. 166/paiki/3. It was an old tenure land and by mutation entry no. 1764, name of the Hamaben - petitioner no.1 was entered in the revenue record along with other co-sharers of the property. A certificate of the Mamlatdar to that effect alongwith mutation entry no.1764 also are produced with the affidavit before this Court.

27.The name of the petitioner no.1 was also included as co-sharer in the land bearing block no. 173 of Village : Fulgam of Khata No.

25. A copy of village Form no.7X12 for block no.173 is forming the part of the affidavit. The name of the petitioner no.1 was also entered into the mutation entry no.6435 for survey no.303/1 of Village : Vesu. Village form no. 7X12 abstracts and entry no.6435 which come on the record before this Court.

28.Petitioner no.1 has also purchased another land bearing block no.108 survey no.104 of Village: Atroli, Taluka : Palsana, District: Surat admeasuiring 0 hactor 92 RA and 07 sq. mtrs. by registered sale deed 14.11.2005 and these is all clearing instances to show that she is an agriculturist and she is having different parcels of the land.

29.It is urged before this Court that by Gujarat Act 4 of 1995, there was an amendment in sub-section 2 (6) of the Tenancy Act, by which, the limitation of having the land within a radius of 5 miles has been omitted. By further Gujarat Act 3 of 2001, the said amendment has been given a retrospective effect. The petitioner has urged that the requirement of having land within 5 to 8 Kms, since has been deleted, since the inception, she can be said to be an agriculturist as she was holding ancestral land at Village : Fulgam, Taluka:- Vadhvan, District: Surendranagar. Thereafter, she also

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

purchased the suit land at Village : Vesu. It is urged that there is no requirement of having a land within a radius of 5 miles and in view of that amendment. It is also further urged that this point was not urged before the Gujarat Revenue Tribunal but it is purely a question of law and facts are on record. The Court need to give it a consideration. It is also urged before this Court the respondent original owners cannot be said to be a person aggrieved within the meaning of term 'person aggrieved' and therefore, they are not entitled to file revision application before the Gujarat Revenue Tribunal challenging the judgment and order of the Deputy Collector dated 25.02.2004. They would not have locus- standi to challenge order of the Deputy Collector as it is not open for them to challenge the transaction entered into by them in favour of petitioner no.1. The Gujarat Revenue Tribunal has held that as the suits are pending between the parties, therefore, the order of the Deputy Collector was not legal and proper. Since Suits have culminated into the decree of compromise, the Tribunal's order is requested to be quashed and set aside. Objections also were raised by the original owners but they were not heard. Therefore, also request is made to remand the matter to the Deputy Collector for further inquiry.

30.Petitioners have rightly pointed out that in wake of the compromise in the Civil Suits as mentioned hereinabove, respondents are no longer persons aggrieved. They would also have no locus to challenge the order of the Deputy Collector after having effected the transfer by way of registered sale deed in favour of the petitioner no.1. Pendency of three suits have also before the Tribunal raised in present petition three Civil Suits filed by the

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

parties having ancestral resulted into to the compromise decree in terms of the compromise. It is quite clear that the respondents have no objection and on the contrary aggrieved to the right, title or interest of the petitioner no.1.

31.Independently she has brought on record the status of an agriculturist on the basis of the ancestral land of village: Fulgam, Taluka: Vadhvan, District: Surendranagar. Her name has been included in the revenue record as one of the co-sharers and in view of the provisions of Amending Act being Gujarat Act 4 of 1995 the Tenancy Act was amended by removing the requirement of a distance between two lands of 5 miles and on account of the latest amendment of Gujarat Act 3 of 2001, which has been given retrospective effect and in view of these factual aspects and developments which have been brought on record, it is urged that she is an agriculturist because of ancestral land and is also getting benefit of absence of any requirement of having a land within a radius of 5 miles and in view of that, it is being argued that in the given set of facts and circumstance and law, in wake of compromise the order of revisional authority requires to be interfered with and the matter is required to be remanded back for making an inquiry in this regard.

32.Section 63 bars the transfer to non agriculturist, at would be reproduces herein:-

1) Save as provided in this Act,--

(a) no sale (including sales in execution of a decree of a Civil Court or 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,

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

shall be valid in favour of a person who is not an agriculturist [or who being an agriculturist [will after such sale, gift, exchange, lease or mortgage, hold land exceeding two-thirds of the ceiling area determined under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act,1961] or who is no 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, on conditions as may be prescribed.

[Explanation.- For the purpose of this sub-section the expression 'agriculturist' includes any person who as a result of teh acquisition of his land for any public purpose has been rendered landless, for a period not exceeding ten years from the date possession of his land is taken for such actuation]

[(1A) Where any condition subject to which permission to transfer was granted is contravened, then the land in respect of which such permission was granted shall be liable to be forfeited in accordance with the provisions of section 84CC.

(1 B) Where permission is granted to any transfer of land under sub- section (1) any subsequent transfer of such land shall also be subject to the provisions of sub-section (1)].

(2) Nothing in this section shall be deemed to prohibit the sale, gift, exchange or lease, or the dwelling house or the site thereof or any land appurtenant to it in favour of an agricultural labourer or an artisan [or a person carrying on any allied pursuit].

(3) Nothing in this section shall apply or be deemed to have applied to a mortgage of any land or interest therein effected in favour of a co-operative society as security for the loan advanced by such society [or any transfer declared to be a mortgage by a court under section 24 of the Bombay Agricultural Debtors' Relief Act, 1947]].

[(4) Nothing in section 63A shall apply to any sale made under sub- section (1).]

33.It is to be noted at this stage that as can be seen from the rejoinder affidavit filed on behalf of the petitioners on 02.09.2013 itself that paragraph no.15, it has been categorically stated that this point of retrospectivity and amendment in Gujarat Amending Act 4 of 1995

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

and Gujarat Act 3 of the 2001, an earlier amendment of 4 of 1995 having given retrospective effect are grounds which are not raised before the Tribunal. It is admitted that question of law and facts which ought to be have been taken before the authority concerned, since it goes to the root of the mater.

34.Being conscious of the fact that this Court at the time of issuance of rule had noted that the sale in question is it is found to be genuine, the post facto permission granted under Section 63 of the Act shall continue to operate, no adjudication has taken place at the end of any judicial authority and the decree has been passed in wake of the compromise between the parties. Therefore, the status of the petitioner no.1 as an agriculturist, even if accepted by the private respondents, i.e. ipso facto would not fulfill the requirement provided under Section 63 of Tenancy Act. Being an agriculturists in is a legal requirement, it can not be based on the opinion of compromise of the private parties and such obligations need to be met with in accordance with law by proving this fact. Concurrence of litigating parties can not confer the title of agriculturist as required by the law and therefore, unless determined by the authority wedded with the powers to adjudicate this issue of being an agriculturist, decree of the civil courts would not ipso facto determine this finally.No inquiry into the title of the petitioner no.1 is made by the competent authority as is quite obvious from the material presented before this Court. For governing the rights of the parties in relation to its apportionment, surely the concurrence of otherside would have a bearing and they cannot deny having agreed to the rights of the petitioners but at the same time, with no scrutiny to the title of petitioner no.1 as an agriculturist and

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

with no exception carved out under the law, this compromise cannot determine the right of the parties of being an agriculturist. Petitioner no.1 had approached as is quite apparent from the record the revenue authority requesting to permit the purchase, not on the strength of her being an agriculturist because of the ancestral land and that aspect of her ancestral land is for the first time brought before this Court. Being mixed question of law and fact and having raised the said issue for the first time, let the same be examined by the authority concerned and genuineness of documents also shall need scrutiny. It is a very skillful way found out by the parties who was having to own agricultural land, with the connivance of the opponent. However, even if the compromise on the part of the opponent was to buy peace, the Court concerned had a responsibility to get the status decided of the party before passing the decree as declaring the person as an agriculturist without taking recourse to the law is impermissible. The State not being the party in private litigation, there was no torch bearer.

34.1 Compromise decree which is not executable nor permissible under the law ought not to have been passed by the trial Court. The Supreme Court makes it very clear that powers of deciding the status of an agriculturist, are with the Mamlatdar under the Tenancy Act and not with the Civil Court. Apt would be to remind oneself of the decision of the Apex Court rendered in the case of Gundaji Satwaji Shinde V/s. Ramchandra Bhikaji Joshi, reported in AIR 1979 SC 653 where the Apex Court has held that section 63 of the Bombay Tenancy and Agricultural Lands Act prohibits the sale of agricultural land to a person, who is not an agriculturist. One of the duties of the Mamlatdars under section 70 of the Act is

C/SCA/3744/2007 JUDGMENT DATED: 04/08/2021

to decide whether a person is in agriculturist and whether the transfer or acquisition of land is invalid being in contravention of the Act. It further has held that section 85 bars the jurisdiction of Civil Court to settle, decide or deal with any question, which is by or under the Act is required to be settled, decided or dealt with by the Mamlatdar or the authority mentioned in the section. The Court also has held that where an issue arises in a Civil Court, it should refer the parties to the competent authority to get the issue decided and such decision would be binding on the Civil Court. Section 85 A is added to the Tenancy Act to enable the Civil Court to make reference.

35.Let the documents and these aspects be examined by the Revenue Authority which needs to decide the same, independent of compromise of the parties in this respect.

35.1 Resultantly, impugned order dated 10.11.2005 passed by the Gujarat Revenue Authority in Revision Application No.Ten B.S. 13 of 2004 and consequently restoring the order dated 25.02.2004 passed by the Deputy Collector, Choryasi Prant, Surat is quashed. The matter is remanded back to the authority concerned.

Revisional authority shall decide the matter preferably within four months from the date of receipt of this order, without being influenced by any observations, strictly in accordance with law.

36.This petition is disposed of accordingly.

(SONIA GOKANI, J) VARSHA DESAI