Dhirendra Chandravadan Daftari vs State Of Gujarat
2021 Latest Caselaw 290 Guj

       C/SCA/11995/2003                                        CAV JUDGMENT




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 11995 of 2003
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 9188 of 2002
                                 With
              R/SPECIAL CIVIL APPLICATION NO. 9921 of 2002

FOR APPROVAL AND SIGNATURE:

HONOURABLE MS. JUSTICE SANGEETA K. VISHEN

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

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 ?

========================================================== DHIRENDRA CHANDRAVADAN DAFTARI & 1 other(s) Versus STATE OF GUJARAT & 5 other(s) ========================================================== Appearance in Special Civil Application Nos.11995 of 2003 and 9188 of 2002 MS TRUSHA K PATEL(2434) for the Petitioner(s) No. 1,2 MS VRUNDA SHAH, ASSISTANT GOVERNMENT PLEADER(1) for the Respondent(s) No. 1,2,3 RULE SERVED(64) for the Respondent(s) No. 4,5 Appearance in Special Civil Application Nos.9921 of 2002 MS TRUSHA K PATEL(2434) for the Petitioner(s) No. 1,2 MS VRUNDA SHAH, ASSISTANT GOVERNMENT PLEADER(1) for the

MR PM BHATT, for the Respondent(s) No.2.1 to 2.6 ==========================================================

CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN Date : 11/01/2021

1. The issues involved in all these petitions are interconnected, and overlapping and outcome of either of the writ petitions, will have bearing on each other. Therefore, all these petitions are heard together and are being disposed of by this common CAV judgment.

2. In Special Civil Application No.11995 of 2003, the petitioners are, inter alia, praying for quashing and setting aside the (i) order dated 24.5.1993 passed by the Deputy Collector, Vadodara whereby, the Entry No.1142 mutated in the Village Form No.VI has been cancelled; (ii) order dated 15.10.1996 passed by the Collector, Vadodara dismissing the revision; and (iii) order dated 2.5/6.2003 passed by the Principal Secretary, Revenue Department (Appeals) rejecting the revision application filed by the petitioners.

2.1 It is the case of the petitioners that the land bearing Survey No.271 of Village Kotna, Taluka and District Vadodara belonged to one Anadabhai Becharbhai Gohil and by virtue of the Will dated 4.8.1986, he had bequeathed the said land to the petitioner No.1 and on the basis whereof, mutation Entry No.1142 dated 4.7.1990 came to be posted in the revenue record and subsequently certified by the Mamlatdar on 26.8.1990.

2.2 After a period of more than 2 years and 3 months from the date of certification of the entry, the respondent Nos.4 and 5, being strangers and unrelated to Anadabhai Becharbhai Gohil, had challenged the Entry No.1142 by preferring RTS Appeal No.123 of 1992 before the Deputy Collector, Vadodara, who, without hearing the petitioners, passed an order dated

24.5.1993 whereby, the Entry No.1142 mutated in the Village Form No.VI with respect to Survey No.271, came to be cancelled.

2.3 Since the petitioner no.1 was not heard, he preferred a revision application before the Collector, Vadodara, who, vide order dated 15.10.1996, dismissed it observing that the application has been filed after a lapse of three to four years without offering sufficient explanation for condoning the delay. The Principal Secretary, Revenue Department (Appeals) vide order dated 31.5.2003 dismissed the revision application filed by the petitioner and thereby, the order dated 24.5.1993 and 15.10.1996 passed by the Deputy Collector and Collector, Vadodara, respectively, stood confirmed. The petitioners being aggrieved have filed the present writ petition challenging the aforementioned three orders passed by the authorities below.

3. The brief facts as culled out from Special Civil Application Nos.9188 of 2002 and 9921 of 2002 are as under.

3.1 By these petitions, the petitioners seek to challenge the order dated 13.6.2001 passed by the Gujarat Revenue Tribunal (hereinafter referred to as 'the Tribunal') in revision application No. TEN-BA-816/96 filed by the State Government as well as order dated 13.5.2002 passed by the Tribunal rejecting the review application filed by the petitioner No.1 seeking review of the order dated 13.6.2001.

3.2 The issue in the aforesaid writ petitions pertains to the land bearing Survey No.351 admeasuring H-0 Are-44 52 sq.mtrs. and Survey No.352 admeasuring H-0 Are-96 11 sq.mtrs. of Village: Umeta, Taluka: Anklav, District: Anand.

According to the petitioners, one Manekben Shankerbhai Padhiyar was not in a position to cultivate the land on account of the fact that the land was kotar, uneven and uncultivable, situated on the bank of river Mahisagar. Accordingly, the original owner, i.e. Manekben Shankerbhai Padhiyar agreed to sell the land to petitioner No.2. Upon examination of the record, the Deputy Collector vide order dated 28.11.1994, granted permission by charging requisite premium amount of Rs.74,906/- with respect to two parcels of land, depending upon the length of cultivation by the agriculturists. In furtherance of the conditions imposed in the order dated 28.11.1994 passed by the Deputy Collector, the petitioner Dhirendra Chandravadan Daftari, paid an amount of Rs.74,906/- on 12.10.1994 towards the premium followed by execution of registered sale deed in his favour on 6.1.1995, that was within a period of 3 months. Apropos the aforesaid transaction, Mutation Entry No.2740 came to be posted in the revenue record on 6.2.1995 and was certified on 19.5.1995.

3.3 It is the said order dated 28.11.1994 passed by the Deputy Collector, Petlad, against which the revision application No.TEN/BA-816/96 was filed by the State Government before the Tribunal, after a period of more than 1 year and 10 months. The Tribunal, while allowing the revision application, quashed and set aside the order dated 28.11.1994 passed by the Deputy Collector, Petlad on the ground that the entry no.1142 dated 7.4.1990 mutating the name of the petitioner No.2 in the revenue record was already cancelled and that the petitioner no.2 cannot be said to be an agriculturist only on the basis of a Will executed by one Anadabhai Becharbhai Gohil. The review application filed by petitioner No.1 Pareshbhai

Manilal Saraiya was not entertained and thereafter, the Mamlatdar & ALT, Borsad issued a notice dated 16.7.2002 under provisions of Section 84C of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Tenancy Act'), requiring petitioner No.2 to show cause as to why the transaction should not be declared illegal and the possession of the land should not be given back to the original owner. Hence, the petitioners have filed the writ petition being Special Civil Application No.9188 of 2002 and 9921 of 2002 challenging the orders dated 13.6.2001 as well as 13.5.2002 passed by the Tribunal.

4. So far as Special Civil Application No.11995 of 2003 is concerned, Ms. Trusha K. Patel, learned advocate for the petitioners has made the following submissions.

4.1 That the petitioner No.1 has acquired the land through Will and the acquisition of the right through Will cannot be said to be a transfer and the restriction under section 43 of the Tenancy Act is not attracted. It is submitted that it is well settled proposition of law that section 43 or section 63 does not affect the operation of law of inheritance and that the Will is not a document of transfer by way of sale, gift, exchange, mortgage, lease or assignment and it is the instrument changing the course of devolution of interest by way of inheritance, which even otherwise would have taken place where the holder had died without a Will by way of intestate succession. Neither Section 43 nor Section 63 envisage prior permission of any authority for executing a Will that would take effect after the death of a person, which he has right to vary, cancel or modify anytime before his death as many times

as the testator desires. The learned advocate for the petitioner has placed reliance on the following judgments:

(i)     State of West Bengal vs. Kailash Chandra Kapur reported
in      (1997) 2 SCC 387

(ii)    Pravinbhai Bhilalbhai Gor vs. Rajivkumar Gupta reported
in      1999 (1) GLR 440

(iii) Ghanshyambhai Nabheram v. State of Gujarat reported in 1999 (2) GLR 1061

(iv) State of Gujarat v. Pravinbhai Bhailalbhai Gor reported in 2000 (3) GLR 2168

(v) Gasfulbhai Mohmadbhai Bilakhia v. State of Gujarat reported in 2005 (1) GLR 575

(vi) S. Rathinam @ Kappamuthu vs. C.S. Mariappom reported in (2007) 6 SCC 724

(vii) Ashokbhai Maneklal Patel v. State of Gujarat rendered in Special Civil Application No.10384 of 2018

(viii) State of Gujarat v. Karunakumari Girdharilal rendered in Special Civil Application No.20308 of 2016 dated 16.1.2020

4.2 Further, while placing strong reliance on the judgment of the Apex Court in the case of Mahadeo v. Shakuntalabai, reported in 2017 (13) SCC 756, it is submitted that the Apex Court while interpreting the provisions of Section 57 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 has held that the transfer without the previous sanction of the Collector is impermissible; however, there is no provision insofar as the transfer of land by way of a Will is concerned. The Apex Court, while interpreting the provisions of section 57 which is very much, in pari materia, with the provisions of section 43 of the Tenancy Act, has held that if the transfer is by virtue of Will, there is no prohibition. It is

submitted that applying the said principle to the facts of the present case, the transfer by virtue of Will in favour of the petitioner by Shri Anadabhai Becharbhai Gohil is permissible mode and there was no necessity of taking any permission under the provisions of the Tenancy Act. Under the circumstances, the order dated 24.5.1993 passed by the Deputy Collector is illegal and bad in law.

4.3 While adverting to the order dated 15.10.1996 passed by the Collector, Vadodara, it is submitted that the Collector, Vadodara has wrongly concluded that the application has been filed after a lapse of more than three to four years because, for preferring an appeal against the order passed by the Deputy Collector, there is no limitation provided in the Gujarat Land Revenue Code (hereinafter referred to as 'the Code'). Therefore, the Collector, Vadodara committed an error in holding that the application has been filed after a delay of more than three to four years.

4.4 While inviting the attention of this court to the order dated 31.5.2003 passed by the Principal Secretary, Revenue Department (Appeals), it is submitted that the error committed by the Collector, Vadodara has been repeated by the Principal Secretary, Revenue Department (Appeals). Both the authorities i.e. the Collector, Vadodara as well as the Principal Secretary, Revenue Department (Appeals) ought to have appreciated that the order dated 24.5.1993 passed by the Deputy Collector was not within the knowledge of the petitioner No.1 and therefore, the petitioner No.1 could not have filed the proceedings before the Collector immediately.

4.5 It is next submitted that the Entry No.1142, was mutated in the revenue record on 4.7.1990 and certified on 26.8.1990; however, the said entry was challenged by the respondents No.4 and 5, who were totally strangers to the Anadabhai Becharbhai Gohil, after a period of more than two years and three months from the date of the certification. The Deputy Collector ought to have appreciated that the proceedings were initiated by the respondent Nos.4 and 5 after a long delay. It is further submitted that it is well settled proposition of law that if there is no limitation prescribed for exercising the powers by the authorities, it has to be exercised within a reasonable time. Entertaining the application of the respondent Nos.4 and 5 after a period of more than two years and three months from the date of certification of the mutation Entry No.1142 cannot be said to be a reasonable time. It is thus submitted that only on this ground the Deputy Collector ought not to have entertained the application filed by the respondent Nos.4 and 5 challenging the mutation entry by filing RTS Appeal No.123 of 1992 on 7.12.1992. It is next submitted that while entertaining the application of the respondent Nos.4 and 5, the Deputy Collector ignored the delay; on the other hand, the revision applications filed by the petitioners before the Collector and thereafter the Principal Secretary, Revenue Department (Appeals), were rejected only on the ground of delay.

4.6 It is next submitted that cross utilization of powers is impermissible. The Deputy Collector while considering the legality or otherwise of the Entry No.1142 had determined the status of the petitioner which could have been decided only by the authorities exercising the powers under the Tenancy Act. In support of the said contention, reliance has been placed on

the judgment in the case of Evergreen Apartment Cooperative Housing Society v. Special Secretary, Revenue Department reported in 1991 (1) GLR 113. It is thus submitted that the authorities have committed a gross error in cancelling the Entry in the first instance and thereby not entertaining the revision applications on the ground of limitation. Therefore, the present petition deserves to be allowed.

5. While adverting to the merits of SCA Nos.9188 of 2002 and 9921 of 2002, it is submitted that section 79 of the Tenancy Act provides that every appeal revision shall be filed within a period of 60 days from the date of the order of the Mamlatdar, Tribunal or Collector as the case may be. However, the State Government had filed the revision application No.TEN/BA/816/1996 against the order dated 28.11.1994 after a lapse of 1 year and 10 months. It is submitted that it is not that the authorities were ignorant about the said order and therefore, no sufficient cause was made out for entertaining the revision application No.TEN/BA/816/1996.

5.1 It is submitted that after the grant of permission under section 43 of the Tenancy Act, vide order dated 28.11.1994, the sale deed came to be executed in favour of the petitioner No.2 on 6.1.1995 who in turn sold it to the petitioner No.1 i.e. Paresh Manilal Saraiya on 30.7.1996. It is submitted that necessary expenditure was incurred by the petitioners towards the improvement of the land making it cultivable, as the land was uneven and uncultivable ravines land. Therefore, the permission granted under section 43 of the Tenancy Act was already acted upon and exhausted prior to its challenge before

the Tribunal.

5.2 It is submitted that the scope of inquiry under section 43 of the Tenancy Act read with Rule 25-C of the Bombay Tenancy and Agricultural Lands Rules, 1956, inter alia, is limited and the only consideration relevant under clause (f) is to see as to whether the holder is in need of money and wants to contract his holding for effective cultivation. Under section 43 of the Tenancy Act, the Collector need not examine as to whether the prospective purchaser is an agriculturist or not.

5.3 It is submitted that the restriction imposed under section 43 is on the transfer of land which is purchased by the tenant under the Tenancy Act and therefore the restrictions are attached to the land whereas section 63 provides for a bar against a non-agriculturist. It is concerned with the status of the prospective purchaser and therefore, section 43 vis-a-vis section 63 operate completely in different fields. Further, the relevant aspect is payment of premium to the State Government which was already paid by the petitioner no.2 on 12.10.1994.

5.4 It is submitted that while considering the proceedings under section 43 of the Tenancy Act, the aspect of cancellation of entry of another land is not relevant. By cancellation of entry of Will, the Will itself does not get nullified and the legatee holds the agricultural land which is sufficient to hold him as an agriculturist. It is submitted that the Tribunal could not have presumed that acquisition of first land by Will / transaction was invalid, when the Will is not invalidated under Section 84C of the Tenancy Act with respect to land bearing survey no.271.

5.5 It is submitted that there is no concept of original agriculturist or agriculturist by birth. Besides, neither the Tenancy Act nor the Code provide for any requirement that the person shall be an agriculturist by birth and therefore, if a person is having an agricultural land, he is considered to be an agriculturist. Reliance is placed on the judgment in the case of Chaital Rashmikant Bhatt vs. State of Gujarat, reported in 2017 (0) AIJEL-HC-237718. It is submitted that this court while interpreting the provisions of sub-section (2) of section 2 defining the term 'agriculturist', has held that an agriculturist would be one who fits in the definition under the Tenancy Act. It is next submitted that so far as the petitioner no.1 i.e. Pareshbhai Manilal Sariya is concerned, he is found to be an agriculturist qua other lands by the revenue authorities and he is a last purchaser of the land in question.

5.6 It is submitted that the Tribunal has passed the order on the basis of conjectures and surmises because, there was nothing on record to show that the petitioner no.2 was aware about cancellation of the entry no.1142 and that he deliberately suppressed the said facts from the original owner. So far as the respondent nos.2/3 to 2/6 are concerned, they have no locus standi to agitate any grievance. The revision application was filed by the State Government and they have neither challenged the order dated 28.11.1994 passed by the Deputy Collector nor have they chosen to remain present before the Tribunal. It is submitted that this court in the case of Chaital Rashmikant Bhatt (supra) has also held that once the vendors have parted with the land voluntarily and pocketed the consideration they cannot be heard to say that the sale is

defective in any manner. Reliance is also placed on the judgment dated 1.2.2005 in the case of Vinubhai Bhailalbhai Amin vs. Balkishan Sunderlal Patel rendered in Special Civil Application No.2431 of 1993. This Court, while dismissing the petition filed by the original land owner, inter alia, has held that the petition at the instance of the original land owners cannot be said to be maintainable in view of the fact that the vendor was a party to the transaction and has pocketed the money by selling the land to the purchaser.

6. It is therefore urged that the petition deserves to be allowed and the orders under challenge in the respective writ petitions may be quashed and set aside. It is also urged that the entry no.1142 may be restored so also the order dated 28.11.1994 passed by the Deputy Collector, Petlad.

7. Ms. Vrunda Shah, learned Assistant Government Pleader appearing for the respondent State, while vehemently opposing the petitions, has made common submissions. It is submitted that a bare perusal of the orders passed by the authorities below, clearly suggests that the orders have been passed in complete consideration of the facts and in consonance with the legal provisions. It is further submitted that as is discernible from the record the Deputy Collector has issued notices to all the concerned and thereafter conducted the proceedings as required under the Tenancy Act; however, the petitioner did not remain present before the authorities. It is submitted that since there were incorrect and incomplete addresses, the Deputy Collector after giving sufficient opportunity proceeded to pass the order dated 24th May, 1993 and therefore, the order has been passed legally.

7.1 It is then submitted that when the petitioners had preferred an appeal before the Collector, against the order dated 24.5.1993 of the Deputy Collector, the petitioners neither have raised any substantial grounds or arguments nor had offered any valid and proper reasons in support of the delay of two years, which had occurred in filing the revision application before the Collector. Hence, it cannot be said that the Collector committed an error in passing the order dated 15.10.1996.

7.2 Similarly, the Principal Secretary, Revenue Department (Appeals) also, after offering sufficient opportunity, has passed the order dated 31.5.2003 wherein, while referring to the order of the Deputy Collector, it has been categorically recorded that owing to want of correct addresses, notices were issued through Talati-cum-Mantri and the Talati-cum-Mantri in his report has stated that the "respondents are not residing at village Kotna". It is further submitted that the Principal Secretary, Revenue Department (Appeals), then has observed that before the Collector, the petitioners have not furnished sufficient explanation so as to enable the Collector to condone the delay. The Principal Secretary, Revenue Department (Appeals) while relying upon the judgment of this court has mentioned that willful indifferent person cannot be helped by the court of law when he seeks justice for condonation of delay. It is submitted that the Principal Secretary, Revenue Department (Appeals), has rightly concluded that the conduct of the petitioners since inception was lethargic. It is thus submitted that the orders have been rightly passed and the orders do not warrant interference and the petitions deserve to

be dismissed. No other and further submissions are made on behalf of the State Government.

8. Mr. P.M. Bhatt, learned advocate appearing for respondent Nos.2/3 to 2/6 in the writ petition being Special Civil Application No.9921 of 2002 has vehemently opposed the entertainment of the writ petition and the gist of the submissions is as under.

8.1 That there is a discrepancy in the order dated 29.5.1992 passed by the 4th Joint Civil Judge (Senior Division) at Vadodara as, the order records two different dates of death of Anadabhai Becharbhai Gohil, i.e. 4.8.1986 and 19.12.1987. Further, the copy of the Will was never produced before any of the authorities.

8.2 That it is a well settled proposition of law that no person can become agriculturist by way of Will. This court has already considered the interplay of section 43 and section 63 of the Tenancy Act in the judgment in the case of Rajenbhai Baldevbhai Shah vs. Baijiben Kabhaibhai Patanvadiya, reported in 2009 (2) GLR 1784. Against which, special leave petition before the Supreme Court is filed and is pending.

8.3 That it is well settled law that one who suppresses the pendency of proceedings before any authority and procures the order, such conduct of the party is required to be viewed seriously and any order or transaction obtained by suppressing anything, deserves to be quashed and set aside. Entry no.1142 was cancelled and therefore, the petitioner could not have been said to be an agriculturist as the land was transferred in favour of the petitioner by way of Will.

8.4 That when the petitioner is not considered as an agriculturist under the Tenancy Act, the respondent No.3 also cannot be considered as an agriculturist. The petitioner has obtained the permission by misrepresentation and by suppressing the proceedings and therefore, no interference is required under Article 227 of the Constitution of India and the orders passed by the authorities and the Tribunal may not be interfered with.

8.5 That the Mamlatdar & ALT has rightly issued a notice dated 16.7.2002 under the provisions of section 84C of the Tenancy Act after the order dated 13.5.2002 passed by the Tribunal rejecting the review application. Therefore, the respondent Nos.2/3 to 2/6 being the heirs of the original owners, should be given back the land.

8.6 That it is urged that the petition is bereft of any merit and deserves to be dismissed with cost because, the petitioners have even before this court suppressed the fact of pendency of proceedings before the Apex Court on the very issue of person becoming agriculturist by way of Will.

9. Heard Ms. Trusha K. Patel, learned advocate for the petitioners, Ms. Vrunda Shah, learned Assistant Government Pleader for the respondent State and Mr. P.M. Bhatt, learned advocate for respondent Nos.2/3 to 2/6 of Special Civil Application No.9921 of 2002.

Re : Special Civil Application No.11995 of 2003:

10. An issue which arises for the consideration of this court in this petition is, whether in the first instance the Deputy

Collector could have passed the order dated 24.5.1993 after a delay of more than two years, cancelling the Entry No.1142 dated 4.7.1990 and certified on 26.8.1990, .

11. Apparently the entry no.1142 was mutated in the revenue record on 4.7.1990 and certified on 26.8.1990, however, the same was challenged on 7.12.1992, i.e. almost after a period of more than two years. This court in the case of Chaital Rashmikant Bhatt (supra) has held that a delay of about 4 years in the issuance of notice from the date of the execution of the sale deed and delay of about 3 years from its certification, was an unreasonable delay. This court in paras 8, 9 and 10 has observed thus:

"8. It is not in dispute that the registered Sale Deed regarding the land in question has been executed on 13.08.2008. Mutation entry No.2396 in this regard was posted in the revenue record on 08.07.2009 and certified on 26.08.2009. The second respondent issued the Show Cause Notice on 25.10.2012, in exercise of suo motu powers, regarding the cancellation of this entry. There is a delay of about four years in the issuance of the said notice from the date of the execution of the Sale Deed and about three years from its certification. The notice has been issued under Rule 108(6) of the Gujarat Land Revenue Rules, 1972. For the purpose of deciding whether the delay is unreasonable or not, it would be pertinent to notice Rules 108(5) and 108(6) of the Rules, which read as below:

"108(5) An appeal against an order under this rule shall, if the order has been made by the Mamlatdar's First Karkun, the Mamaltdar, the District Inspector or Revenue Officer of lower rank than that of a Deputy Collector lie to the Sub-

Divisional Officer, or to an officer appointed by the State Government in his behalf, and if the order has been made by the Sub-Divisional Officer, the Superintendent of Land Records Office of a rank not lower than that of a Deputy Collector, to the Collector: such appeal shall be presented within sixty days from the date

on which the copy of the order was served on the appellant or was otherwise intimated to him:

Provided that the appellate authority may after recording its reasons in writing admit an appeal after the aforesaid period of sixty days if it is satisfied that the appellant had sufficient cause for not presenting the appeal within such period.

Subject to the provisions of [sub-rules (6) and (6A)] the decision of the appellate authority shall be final. There shall be no appeal against the order of the Collector. No second appeal shall lie in any case.

(6) The [Collector] may call for and examine the record of any enquiry or the proceedings of any subordinate revenue officer held under rules 106, 107 and subrules (1) to (5) of this rule for the purpose of satisfying himself as to the regularity of such proceedings and as to the legality or propriety of any decision or order passed in such proceedings.

If, in any case, it shall appear to the [Collector] that any proceedings so called for or any decision or order made in such proceeding should be modified, annulled or reverse, he may pass such order thereon as he deems fit."

9. It is clear from the above Rules that the limitation period of sixty days is mentioned in Rule108(5). The proviso provides for reasons to be given by the appellate authority in writing if an appeal is to be admitted after the period of limitation, provided that sufficient cause has been shown for not presenting an appeal within the period of limitation.

Rule-108(6), which is the provision under which the Show Cause Notice has been issued, confers the power of revision upon the Collector, for which no specific period of limitation has been provided for. This is where the concept of a reasonable period of time comes in.

10. In the case of Bhagwanji Bawanji Patel Vs. State of Gujarat and another, reported in 1971 GLR 156, the Division Bench of this Court has held that the powers of revision under Section 211 of the Code have to be

exercised within a reasonable period of time, which is, one year from the date of the order or action complained of. Rule 108(6) of the Rules provides for the power of revision which is akin to the power conferred by Section 211 of the Code where no specific period of limitation is provided for, therefore, the same analogy would apply and what applies to Section211 of the Code would apply to Rule 108(6), as well. Considered from this angle the delay of about four years from the execution of the Sale Deed and about three years from the mutation of the revenue entry, being much beyond one year, is an unreasonable one. The submissions advanced by learned counsel for respondents Nos.4 to 8 and the learned Assistant Government Pleader that the delay is not unreasonable cannot be accepted in view of the settled legal position."

12. This court, while considering the provision of Rule 108(5), observed that the rule provides for limitation period of 60 days and if an appeal is to be admitted after a period of limitation, sufficient cause has to be shown for not presenting an appeal within the period of limitation. This court has also held that Rule 108(6) is a provision which confers the powers of revision upon the Collector, for which no specific period of limitation has been provided for and this is where the concept of a reasonable period of time comes in.

13. Reliance placed on the judgments in the case of Patel Kantilal Ramjibhai vs. State of Gujarat (supra) is also worth referring to. In the said case the authority has sought to reverse the order after a period of one year and two months. This Court in paras 6 and 7 has observed thus:

"6. Having regard to the submissions made by the learned Counsel for the parties and to the documents on record, it appears that the respondent No.1 has sought to revise the order dated 23.11.1999 passed by the TDO granting N.A. Permission to the petitioner in respect of the lands in question, by issuing the show-cause notice

on 29.1.2001 after one year and two months of the said order passed by TDO. At this juncture, a very apt observations made by the Supreme Court in this regard in case of State of Gujarat Vs. Patil Raghav Natha and Ors., reported in 1969 (2) SCC 187, are required to be reproduced. Paragraph 12 thereof reads as under:-

"12. It seems to us that Section 65 itself indicates the length of the reasonable time within which the Commissioner must act under, Section 211. Under Section 65 of the Code if the Collector does not inform the applicant of his decision on the application within a period of three months the permission applied for shall be deemed to have been granted. This section shows that a period of three months is considered ample for the Collector to make up his mind and beyond that the legislature thinks that the matter is so urgent that permission shall be deemed to have been granted. Reading Sections 211 and 65 together it seems to us that the Commissioner must exercise his revisional powers within a few months of the order of the Collector. This is reasonable time because after the grant of the permission for building purposes the occupant is likely to spend money on starting building operations at least within a few months from the date of the permission. In this case the Commissioner set aside the order of the 'Collector on October 12, 1961, i.e. more than a year after the order, and it seems to us that this order was passed too late."

7. In the instant case, the respondent No.1 having exercised the suo motu powers seeking revision of the order granting N.A. Permission, after one year and two months, as rightly submitted by Mr.Joshi, the said period could not be said to be reasonable period, inasmuch as in the meantime, the petitioner had already spent lacs of rupees for developing the said land and putting up the factory. The impugned order, therefore, deserves to be set aside on that ground alone."

14. The facts of the present case requires to be examined in the aforesaid background. The Will has been executed on 4.8.1986 by one Anadabhai Becharbhai Gohil in favour of the

petitioner No.1 and the entry pursuant thereto came to be posted in the village Form No.VI on 4.7.1990 and was certified by the Mamlatdar on 26.8.1990. Apropos the said entry, the petitioner No.1 obtained the probate from the competent court on 29.5.1992. Clearly, the entry no.1142 dated 4.7.1990 came to be challenged by respondent Nos.4 and 5 (who were strangers and not related to Anadabhai Becharbhai Gohil) after a period of more than two years. In the present case, the order dated 24.5.1993 of the Deputy Collector, Vadodara is conspicuously silent as regards the delay much less the sufficient cause offered by the private respondents. Therefore, the delay caused in preferring the RTS Appeal No.123 of 1992 without any sufficient explanation offered by the respondent nos.4 and 5 was an unreasonable delay. As is clear from the record the respondent nos.4 and 5 though served, have chosen not to enter appearance except filing of the appeal before the Deputy Collector, Vadodara challenging the entry no.1142.

15. Furthermore, the notices were issued to the original owners as well as the petitioner No.1, however, the notice was not served upon the petitioner No.1 and that is how there was no representation by the petitioner No.1 in the proceedings before the Deputy Collector. Necessary effective steps ought to have been taken for due service of notice, more particularly, when the report of the Talati-cum-Mantri clearly stated that the petitioner No.1 was not residing in the village. The petitioner No.1 was not served with the notice. Therefore, the order of the Deputy Collector was passed in violation of principles of natural justice.

16. Besides, the Deputy Collector while cancelling the entry no.1142 has placed heavy reliance on the Will and while doing so, has also determined the legality and validity of the Will. Perceptibly, the Deputy Collector lost sight of the fact that the petitioner No.1 has obtained probate from the 4th Joint Civil Judge, Senior Division, Vadodara vide order dated 29.3.1992 (Exh.18) passed in Misc. Civil Application No.193 of 1991. Further, the Deputy Collector has straightaway concluded that a bogus Will has been created and through which the land has been disposed of in favour of a non-agriculturist and such exercise has been undertaken by the petitioners as well as the revenue officers in collusion with each other. The Deputy Collector clearly fell in error by observing that the entry has been mutated in the revenue record with an oblique motive, fraudulently and in collusion with the officers of the Revenue Department. As discussed herein above, the said finding has no foundation and is therefore, perverse. Moreover, there is no quarrel to the proposition that the authorities while exercising the powers under one enactment, cannot exercise the powers under another enactment. Whether the Will was valid and legal was to be examined by the court of competent jurisdiction and it was legally impermissible to the Deputy Collector to have observed about the legality or otherwise of the Will, while exercising powers under the Code. Precisely, the Deputy Collector has committed the error in deciding the legality and validity of the Will and consequent thereupon cancelling the entry No.1142.

17. Quite apart, as aforesaid, the petitioner No.1 has been granted probate vide order dated 29.3.1992 passed by the 4th Joint Civil Judge, Senior Division, Vadodara in Misc. Civil

Application No.193 of 1991; which has remained unchallenged as, the respondent nos.4 and 5 though are claiming to be the heirs of Anadabhai Becharbhai Gohil, have not challenged the Will nor the order dated 29.3.1992 passed by the 4th Joint Civil Judge, Senior Division, Vadodara. Therefore, the order of the Deputy Collector is erroneous on this count as well and deserves to be quashed and set aside.

18. Further, when the order dated 24.5.1993 was challenged before the Collector, the Collector held that the order passed by the Deputy Collector has been challenged after a period of three to four years. The order further records that the revision is filed on 25.7.1995. Immediately in the next unnumbered para it is observed that the delay is of three to four years. The Collector has also observed that there are no sufficient reasons assigned for the purpose of condoning the delay which has been caused while challenging the order dated 24.5.1993 passed by the Deputy Collector. The findings of the Collector are erroneous inasmuch as, the order had been passed by the Deputy Collector in the month of May 1993 and the appeal / revision was filed in the month of July 1995, that would be a period little more than two years. The appeal has been rejected by the Collector observing that there is a delay of three to four years, which clearly reflects the non-application of mind on the part of the Collector. Furthermore, the petitioner no.1 was not served with the notice and has not participated in the proceedings before the Deputy Collector and in absence of any service of notice to the petitioner no.1, it cannot be said that the delay was fatal to the filing of the appeal. The reasons given by the Collector cannot be said to be valid reasons considering the fact that the petitioner No.1 in

absence of any service of notice to him could not have had the knowledge of the order dated 24.5.1993 passed by the Deputy Collector. Under the circumstances, the Collector could not have passed the order dated 15.10.1996 rejecting the revision application only on the ground of delay.

19. Similarly, the Special Secretary, Revenue Department has also rejected the revision application relying upon the judgments in the case of Lalitaben wd/o Baldevbhai Manibhai Suthar vs. Minuben Ramanbhai Suthar, reported in 43 (3) GLR 3223 and in the case of Special Land Acquisition Officer vs. Lilavatiben Kodar Ranchhod and others, reported in 43 (3) GLR 1874. Pointed reference is made to the observations made in the case of Lilavatiben Kodar Ranchhodbhai (supra) under headnote A wherein it is observed that 'Obviously, willful indifferent person cannot be helped by the Court of law when he seeks the justice for condonation of delay'. The Special Secretary, Revenue Department has also observed that the petitioners have not only approached the Collector at a belated stage but were irresponsible in conducting the matter and owing to the delay, the Collector has rightly rejected the application. The Special Secretary further relied upon the observations of the Division Bench namely 'the Court should be ordinarily lenient and liberal in determining the sufficiency or reasonability of ground for condonation so as to see that no meritorious matter is thrown away on a technical plea of delay'. However, the Special Secretary ignored the observations that 'Nevertheless, if the record discloses that the parties in a given case, though delay has occasioned, had not abandoned animus to question the impugned order, decision or judgment, is an important factor which should be

taken into consideration for determining the genuineness and sufficiency of the ground for condonation of delay'.

20. In the present case, as the record suggests, the petitioners have not abandoned the cause and rightly so, as the petitioners have invested a huge amount by purchasing the lands. In absence of any material to buttress the fact that the petitioners have acted indifferently, it is difficult to fathom as to how the observations made by the Court in the case of Lilavatiben Kodar Ranchhod (supra) would have any application to the facts of the present case. So far as the reference made to the judgment in the case of Lalitaben wd/o Baldevbhai Manibhai Suthar (supra), is concerned, the judgment is with respect to the provisions under the Hindu Succession Act. The judgment is with regard to the obligation on the part of the person applying for mutation of his / her name in record of rights and to satisfy the authority that he or she has the right. However, the aspect of delay has not been considered by this Court and therefore, reference to the judgment in the case of Lalitaben wd/o Baldevbhai Manibhai Suthar in the order, is misplaced. The Special Secretary, Revenue Department while rejecting the application, did not consider the said aspect and simply followed the judgments of this court without appreciating the facts obtaining in the said cases. Therefore, there was total non-application of mind by the Special Secretary, Revenue Department.

21. In view of the aforementioned discussion, the orders dated 24.5.1993, 15.10.1996 and 2.5/6.2003 passed by the authorities below, suffer from perversity, erroneous and are illegal and deserve to be quashed and set aside and are

hereby quashed and set aside.

Re : Special Civil Application No.9188 of 2002 and Special Civil Application No.9921 of 2002:

22. In view of the aforementioned discussion, the entry no.1142 stands revived. Once the entry no.1142 is revived and restored on the record, the issue which now arises is as to whether the Tribunal was justified in passing the order dated 13.6.2001 and 13.5.2002 cancelling the order dated 28.11.1994 passed by the Deputy Collector, Petlad which is subject matter of challenge in Special Civil Application Nos.9188 of 2002 and 9921 of 2002.

23. For deciding the aforesaid issue, it is profitable to refer to the principle in this behalf. Pertinently, prior to the judgment in the case of Rajenbhai Baldevbhai Shah (supra), the transfer of land by Will was held to be permissible. This court in the judgments viz. Pravinbhai Bilalbhai Gor (supra), Ghanshyambhai Nabheram (supra) and Gasfulbhai Mohmmed Bilakhia (supra), etc., has held that perusal of language contained in Section 43 and Section 63 clearly goes to show that it refers only to transaction or transfer or agreement to transfer of land or any interest therein, which are intervivos and not to vesting of such rights in any one, as a result of transmission or as a result of succession on that holder. The provisions do not affect the operation of law of inheritance. This Court in the case of Ghanshyambhai Nabheram (supra) has in paras 12, 13 and 14, observed thus:

"12. That apart on merit also, it is apparent that the Act of 1947 or Bombay Tenancy Act has no application to transmission of interest of holder on his death to his successor by any mode of succession of lands held by tenants. Revenue Laws dealing with agricultural lands

have not made the lands uninheritable. They also do not disqualify a non-agriculturist from inheritance nor a number of persons are disentitled from succeeding to estate of an agriculturist as body of successors, which may result in well-defined definite share of the estate of deceased vesting in them individually.

13. The laws do not provide any special mode of succession in respect thereof. In absence of special provision, the succession will be governed by personal law applicable to deceased. The deceased was a Hindu and succession to his interest on his death is governed by Hindu Succession Act which acknowledges both the modes of the succession, namely, testamentary and intestate. The result of death is that interest of deceased immediately vests in his successors whether recognised as heirs on intestate succession; or as per the direction in the Will as legatees. Vesting is not postponed and is not as a result of any agreement or transaction inter vivos. It takes place by operation of law. It is not the case of the State Government that on the death of the tenant if he is a joint tenant of a block, the succession would be in a different mode. It is also not the case of the State that if the Will had not been executed the land would not have vested in the heirs of the deceased as per the law of inheritance applicable to deceased. It also cannot be doubted and disputed that only such interest shall vest in successor as was of the deceased. The position cannot be different in the nature of intestate succession and testamentary succession. In case of intestate succession also an heir may or may not be agriculturist. In case of one or more of heirs being non-agriculturist, he cannot be deprived of his inheritance. So also a legatee can be a non-agriculturist and he too will succeed only to the interest of the deceased whether was held by the deceased as individual or as joint tenant with other co-tenant. In either event, the vesting of the property in successor cannot be denied.

14. The authorities under the two statutes are not vested with power to deny recognition of vesting of such interest on succession. If vesting of the property in a non-agriculturist to the extent interest of a co-sharer in the joint holding is to be recognised and given effect to in the case of intestate succession the position cannot be altered merely because the successor happens to be a legatee acquiring right under a Will. It may further be noticed that a person has power to dispose of only that much of property by testamentary disposition which is capable of being disposed of by

him. That is to say a Will can only relate to the extent a deceased has disposable interest in the property and not beyond it. A joint holder of a tenancy has only interest in part of the tenancy. May be that until it is divided into metes and bound he holds jointly with other sharers. On his death succession is to his share in the joint tenancy. Only the interest of deceased shareholder vests in his heirs or legatees under testamentary disposition as the case may be and such successor or successors becomes a joint tenant with the surviving sharers. But this substitution does not result in sub- division of the property unless partitioned by all the joint holders. Nor it is a transfer of property inter vivos so as to invite the operation of Section 31 of the Act of 1947 or Section 63 or 64 of the Bombay Tenancy Act."

24. Subsequently, in the reference decided by this court, the Division Bench in the case of Rajenbhai Baldevbhai (supra), by overruling the aforesaid judgments, in para 10 and 12 held thus:

"10. We have noticed, that the title of Chapter V, and the marginal note to Section 63 restricts and bars the transfer of agricultural land to non-agriculturist, which also gives us a clue, when we interpret that Section. Object, title and marginal note indicates the underlying purpose and policy of the legislation. Underlying purpose and objects of the Tenancy Act is not to transfer the agricultural land to a non-agriculturist but will be frustrated if permitted by a testamentary disposition. Such a devise, is void, if it defeats the purpose of a legislation for an illegal purpose.

12. We are, therefore, of the considered view that if the agriculturist is permitted to dispose agricultural property through testamentary disposition to a non- agriculturist the same will defeat the very purpose and object of the Tenancy Act which cannot be permitted by a Court of law, therefore, we hold that decision rendered by the learned Single Judges referred above earlier, otherwise, are not correct enunciation of law and stand overruled. We, therefore, hold that Section 63 of the Bombay Tenancy Act also bars the transfer of agricultural land by an agriculturist to a non-agriculturist for non-agricultural purpose unless permission is obtained from the Collector or any authorised officer as provided in that Section. We are informed by the

learned counsel for the petitioner that large number of agricultural lands have already been transferred through testamentary disposition to non agriculturists and are in use and if the settled position is unsettled the same will cause considerable prejudice and inconvenience to the parties. We are of the view that there are matters to be considered by the learned Single Judge depending upon facts of each case and equities can be worked out accordingly, on which, we express no opinion. We are only called upon to answer the scope of Section 43 and 63 of the Tenancy Act, which we have already answered."

25. Therefore, prior to the decision in the case of Rajenbhai Baldevbhai Shah (supra), the transfer or acquisition of the right by a non-agriculturist through Will was a permissible mode.

Recently Civil Appeal No.2575 of 2020 in the case of Rajenbhai Baldevbhai Shah vs. Baijiben Kabhaibhai Patanvadia and others, filed against the judgment dated 17.3.2009 passed in the case of Rajenbhai Baldevbhai Shah (supra) has been dismissed by the Apex Court. The Apex Court has in paragraphs 24 and 25 observed thus:-

"24. A transfer inter vivos would normally be for consideration where the transferor may get value for the land but the legislation requires previous sanction of the concerned authority so that the transferee can step into the shoes of the transferor, and carry out all the obligations as a part of legislative scheme must be discharged. Thus, the screening whether a transferee is eligible or not, can be undertaken even before the actual transfer is effected. As against this, if a testamentary disposition which does not have the element of consideration is to be permitted, and if it is assumed that Sections 43 and 63 of the Act do not get attracted, the land can be bequeathed to a total stranger and a non-agriculturist who may not cultivate the land himself; which in turn may then lead to engagement of somebody as a tenant on the land. The legislative intent to do away with absentee landlordism and to protect the cultivating tenants, and to establish direct relationship between the cultivator and the land would then be rendered otiose. The construction put on the expression "assignment"appearing in Section 43, therefore, has to be consistent with the legislative scheme. In the context of the entire scheme, the term "assignment"

used in Section 43 of the Act must include testamentary disposition as well. By adopting such construction, in keeping with the law laid down by this Court, the statute would succeed in attaining the object sought to be achieved. On the other hand, if it is held that the testamentary disposition would not get covered by the provisions of Section 43, a gullible person can be made to execute a testament in favour of a person who may not fulfil the requirements and be eligible to be a transferee in accordance with law. This may not only render the natural heirs of the tenant without any support or sustenance, but may also have serious impact on agricultural operations.

25. In the circumstances the view taken by the Division Bench of the High Court in the present matter is absolutely correct and does not call for any interference. The decision is completely consistent with the law laid down by this Court in Sangappa and Jayamma and the other cases referred to hereinabove and must be accepted to be the correct exposition of law."

The Apex Court has held that in the context of the entire scheme of the Tenancy Act, the term "assignment" used in Section 43 includes testamentary disposition as well. The view taken by the Division Bench in the case of Rajenbhai Baldevbhai Shah (supra) has been upheld. In view of the aforesaid enunciation of law, now the issue that Section 43 of the Tenancy Act debars an agriculturist from parting with the agricultural land to a non-agriculturist through a Will stands finally concluded.

26. Adverting to the facts, it is required to be noted that the petitioner No.1, at the relevant point of time, had acquired the status of agriculturist by virtue of Will which was accorded probate by the 4th Joint Civil Judge, Senior Division, Vadodara vide order dated 29.5.1992, Exh.18 passed in Misc. Civil Application No.193 of 1991. As discussed in the previous paragraphs, there is nothing on record to suggest that the said order has been challenged before the higher forum and the same has attained finality. By virtue of the Will dated 4.8.1986,

the petitioner - Dhirendra Chandravadan Daftari had acquired the status of agriculturist and on the basis whereof, he purchased the land bearing survey no.351 and 352 after obtaining necessary permission from the Deputy Collector, Petlad vide order dated 28.11.1994. Entry no.2740 was mutated in the revenue record after following necessary procedure under the Code, and was certified after considering objections raised by all the concerned. The Entry no.2740 has not been challenged by any of the parties.

27. Moreover, the Deputy Collector after examining the record has passed the order dated 28.11.1994 on condition that necessary premium be paid to the State Government and thereafter to execute a sale deed in favour of the petitioner No.1. It is not in dispute that the premium for an amount of Rs.74,906.70 paise was charged and has been paid and it is only thereafter that the registered sale deed came to be executed in favour of the petitioner - Dhirendra Chandravadan Daftari followed by mutation of entry no.2740 in the revenue record and which has not been challenged by anyone. Further, the sale deed which has been executed in favour of the petitioner - Dhirendra Chandravadan Daftari and thereafter the sale deed dated 30.7.1996 executed in favour of the petitioner i.e. Paresh Manilal Saraiya have remained unchallenged. Moreover, entry No.2889 has been posted in the revenue record, i.e. Village Form No.VI, followed by certification on 3.9.1998. The said entry has also not been challenged by anyone. Therefore, equities have been created in favour of the petitioners.

28. Further, the order dated 13.6.2001 was passed having

regard to the fact that cancellation of the entry No.1142, was not disclosed before the Deputy Collector and therefore, order dated 28.11.1994 could not have been passed. In view of quashing and setting aside of the order dated 24.5.1993 of the Deputy Collector and further orders passed by the Collector and Special Secretary, Revenue Department, the entry No.1142 stands revived in the revenue record. Therefore, the foundation for passing the order dated 13.6.2001 does not survive and resultantly, the order dated 13.6.2001 as well as order dated 13.5.2002 passed by the Tribunal deserve to be quashed and set aside and are hereby quashed and set aside. Consequently, the proceeding in connection with the notice dated 16.7.2002 issued by the Mamlatdar under Section 84C stands terminated.

29. The Division Bench in the case of Rajenbhai Baldevbhai Shah while answering the scope of section 43, has observed that matters be considered by this court depending upon the facts of each case and equities to be worked out accordingly. The Division Bench in paragraph 12, relevant extracts whereof read thus:-

"12... We are informed by the learned counsel for the petitioner that large number of agricultural lands have already been transferred through testamentary disposition to non-agriculturist and are in use and if the settled position is unsettled the same will cause considerable prejudice and inconvenience to the parties. We are of the view that there are matters to be considered by the learned single Judge depending upon facts of each case and equities can be worked out accordingly, on which, we express no opinion....."

Perceptibly, the petitioner No.2, who is undisputedly an agriculturist has invested in the lands and equities have been created in his favour.

30. While concluding, it is needless to mention that the order dated 24.5.1993, 15.10.1996 and 2.5/6.2003 passed by the Deputy Collector, Collector and Special Secretary, Revenue Department are quashed and set aside, inter alia, on the ground of delay. This court in the normal circumstances would have remitted the matter back for fresh consideration, however, having regard to the fact that the matter and the disputes are old, so also the equities created in favour of the third party, the court deems it fit to clarify that quashing of the orders by itself will not confer the status of agriculturist upon the petitioner No.1 i.e. Dhirendra Chandravadan Daftari, if the status of the agriculturist has been acquired by him only on the basis of the Will. Further, for future use, the land bearing S.Nos.351 and 352 will be governed by condition Nos.2 and 4 of the order dated 28.11.1994 passed by the Deputy Collector, Petlad.

31. In view of the above, the petitions are partly allowed. Rule is made absolute to the aforesaid extent. No order as to costs.

(SANGEETA K. VISHEN,J) BINOY B PILLAI