Chimanbhai Chhaganbhai Pokal vs State Of Gujarat
2021 Latest Caselaw 18443 Guj

     C/SCA/19300/2019                              JUDGMENT DATED: 15/12/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 19300 of 2019


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER                  Sd/-

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1     Whether Reporters of Local Papers may be allowed                  No
      to see the judgment ?

2     To be referred to the Reporter or not ?                           No

3     Whether their Lordships wish to see the fair copy                 No
      of the judgment ?

4     Whether this case involves a substantial question                 No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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                        CHIMANBHAI CHHAGANBHAI POKAL
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MS NIDHI J DALAL(9845) for the Petitioner(s) No. 1
NILAY H PATEL(7856) for the Petitioner(s) No. 1
MS DHWANI TRIPATHI, AGP for Respondent.
DS AFF.NOT FILED (R)(71) for the Respondent(s) No. 1,2,3,4,5
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                               Date : 15/12/2021

                               ORAL JUDGMENT

1. Draft amendment is allowed. Amendment be carried out forthwith.

2. By filing this petition, the petitioner has challenged order dated 30.10.2017 passed by Special Secretary, Revenue

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Department in Revision Application No.MVV/JMN/AML/21/2016, by which the order of the subordinate revenue authority is confirmed.

3. The brief facts of the case are that the petitioner is an agriculturist by birth and his name was entered into revenue records vide entry no.10424 dated 7.4.1996 and name of brother of the petitioner, viz. Kantibhai Chhaganbhai Pokal was also mutated. On 16.12.1997, the petitioner and his late father had sold land bearing revenue survey No.745 admeasuring Acre 4-07 gunthas out of the total land vide registered Sale Deed bearing no.3036 and revenue entry no.10917 was mutated accordingly. On the same day i.e. on 16.12.1997, the petitioner and his late father had purchased land bearing Survey No.224 and 225 admeasuring about 16 Acres and 31 Gunthas situated at Mouje-Mota Machiyala by registered sale deed no.3035 from the Power of Attorney holder of his elder brother and his wife, but due to insufficient stamp duty, the same was sent to Deputy Collector, Stamp Duty, Amreli, under Section 32 (c) of the Stamp Act. It is stated that since the petitioner was residing at Junagadh, his younger brother was taking care of the lands and due to that he was not aware of the proceedings under Section 32 (c) of the Stamp Act. According to him, since the petitioner's sale deed was sent for calculation of stamp duty Section 32 (c) of the Stamp Act, his name could not be entered into the revenue record with regard to purchase of said land. It is alleged that brother and sister-in- law of the petitioner had again executed registered Sale Deed of the land sold to him, in favour of another person on 13.6.2005 and revenue entry was mutated vide entry no.2160 dated 27.6.2005. According to the petitioner, no notice with

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respect to said transaction was served to him.

3.1 The petitioner has purchased another agricultural land bearing Revenue Survey No.59 paiki 1 of Village-Juna Charkha, Taluka-Dhari vide registered Sale Deed No.291 on 16.4.2002 and has also purchased agricultural land bearing revenue Survey No.17 admeasuring 1 Acre and 18 gunthas vide registered sale deed no.521 on 25.3.2000 situated at mouje Village-Kathivadar, Taluka-Dhari.

3.2 According to the petitioner, he and his late father were holding agricultural land situated at Village-Mota Machiyala between 16.12.1997 to 30.6.2005 and, therefore, he applied for getting continuous Khedut Khatedar Certificate before the Mamlatdar, Amreli, whereupon Mamlatdar, Amreli, was of the opinion that the petitioner is eligible for grant of Khedut Khatedar Certificate. Since for issuance of Khedut Khatedar Certificate prior permission of Deputy Collector is necessary, the Mamlatdar wrote a letter dated 6.12.2013 bearing No.JMN/ VASHI/7514/13 narrating entire incident to respondent no.4 and sought permission for issuance of said Certificate in favour of the petitioner. On 30.12.2013, correspondence was entered into between Talati, Amreli and Mamlatdar-respondent no.4. According to the report of the Mamlatdar, petitioner was entitled to get said Certificate. Thereafter, the petitioner has made various representations before the revenue authorities, whereupon respondent no.3 had sought opinion from the Mamlatdar again. That he has also sought permission from Prant Officer, Amreli, which came to be rejected by the Prant Officer. Against said order, the petitioner preferred representation before the authority and, thereafter,

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respondent no.3 directed the Prant Officer to submit the report. In pursuance thereof, respondent no.4 submitted his report to respondent no.3 and respondent no.3 vide order dated 13.12.2015 observed that now he need not do anything with respect to submissions made by the petitioner. Against that order he approached SSRD, who also rejected his appeal.

3.3 The main grievance of the petitioner is that he is agriculturist since his birth and after selling portion of his land, he has purchased another land but due to under-valuation regarding stamp duty, the document was sent to Deputy Collector, Stamp Duty, for valuation under Section 32 (c) of the Stamp Act. According to him, the authority has lost sight of the fact that land purchased by the petitioner in 1997 was sold in the year 2005 by a Sale Deed to his younger brother and sister-in-law and the fact that the petitioner and his father were farmers and were holding agricultural land as well as the fact that the petitioner had purchased another land in the years 2000, 2002 and 2005. It is submitted that as per the policy of the State Government, if an agriculturist sells his agricultural land, within a period of six months he has to purchase another agricultural land to retain his status of an "agriculturist". It is submitted that the petitioner has purchased agricultural land on the very same day on which he has sold the land and, therefore, he would retain his status as agriculturist as per promulgation. On this ground, it is prayed to set aside the impugned order passed by the concerned revenue authority.

4. Affidavit-in-reply has been filed on behalf of Deputy Collector, Amreli, whereby only copies of internal

C/SCA/19300/2019 JUDGMENT DATED: 15/12/2021

communications entered into between Deputy Collector, Amreli and Collector, Amreli are produced on record. He has denied various factual contentions raised by the petitioner in his petition, however, factual aspect regarding selling of land and purchasing the land on the same day is not controverted by the respondents.

5. Heard Mr.N.H.Patel, learned advocate for the petitioner and Ms.Dhwani Tripathi, learned AGP for the respondent-State. Perused the material placed on record.

6. Mr.Patel, learned advocate for the petitioner, while reiterating the facts narrated in the petition, has vehemently submitted that there is no gap between two transactions of sale and purchase of the land by the petitioner in 1997. He has also submitted that the petitioner has purchased the land in 2002 and he and his father were agriculturists and since the purchase of the land was on the same day on which the land was sold, the status of the petitioner as an "agriculturist" will continue. He has also submitted that there was positive opinion of the Mamlatdar for issuance of Khedut Khatedar Certificate in favour of the petitioner. However, the respondent authorities have not considered this aspect. He also submitted that since there was some dispute regarding the stamp duty, the land could not be transferred in the name of the petitioner inspite of the sale deed being executed in favour of the petitioner. He submitted that therefore there was no fault on the part of the petitioner. He has submitted that the stand taken by the respondent-authority is not legal and valid. He has prayed to allow present petition.

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7. Per contra, learned AGP Ms.Tripathi has submitted that the authority has not committed any error of facts and law in passing the impugned order. She has submitted that there is delay on the part of the petitioner in raising the dispute.

8. Considering the submissions made on behalf of both the sides coupled with the material placed on record, it appears that there is no dispute regarding the fact that the petitioner and his father were holding agricultural land and revenue entry to that effect was mutated in their name. It is also undisputed fact that, as per the revenue entry, the petitioner and his father have sold the land in question and on the very same day, the petitioner had purchased the land. It also appears that subsequently in the year 2000 and 2002 also, the petitioner has purchased land. It also appears that the Mamlatdar concerned has narrated entire history regarding status of the petitioner and his father as "agriculturists" in his communication. It also reveals that as per the report of the Mamlatdar, Amreli, the fact that the petitioner has purchased the land on 16.12.1997 on which he has sold his land has been fortified by Mamlatdar. Mamlatdar has specifically opined that, at the relevant time, the document for purchase of the land was sent to Deputy Collector for valuation of the stamp duty and, due to that there was no mutation entry made in the register and, considering this factual aspect, as a special case, certificate needs to be granted in favour of the petitioner. Now, admittedly in this case there is no stand of the authorities that the petitioner was never an "agriculturist". The version of the petitioner on affidavit that he has purchased the land on the same day on which he has sold the portion of land has been substantiated by the report of Mamlatdar. Not only that it

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appears that version of the petitioner that he has subsequently purchased the land in 2000 as well as in 2002 has not been controverted by the respondents. Now, when an agriculturist has sold his agricultural land and he purchases another piece of land within a specified period, then he is considered to be an "agriculturist". In the present case, when there is positive opinion that the petitioner has purchased the land on the same day when he has sold his agricultural land, stand taken by the authority for non-issuance of Khedut Khatedar Certificate is not legally tenable. Therefore, considering the facts and circumstances of the case, necessary certificate regarding Khedut Khatedar needs to be granted in favour of the petitioner.

9. In view of above discussion, present petition is allowed. The impugned order dated 30.10.2017 passed by Special Secretary, Revenue Department in Revision Application No.MVV/JMN/AML/21/2016, by which the order of the subordinate revenue authority is confirmed, is quashed and set aside. Revenue authorities are directed to issue appropriate Khedut Khatedar Certificate to the petitioner within a period of three months from the date of receipt of copy of this order. Rule is made absolute accordingly. No order as to costs. Direct service is permitted.

Sd/-

(DR. A. P. THAKER, J) R.S. MALEK