Minbaiben Nankabhai Kalabhai vs State Of Gujarat
2021 Latest Caselaw 534 Guj

         C/LPA/1072/2019                                   ORDER



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/LETTERS PATENT APPEAL NO. 1072 of 2019
                                 In
             R/SPECIAL CIVIL APPLICATION NO. 718 of 2016
                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
            In R/LETTERS PATENT APPEAL NO. 1072 of 2019
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                      MINBAIBEN NANKABHAI KALABHAI
                                  Versus
                            STATE OF GUJARAT
=============================================
Appearance:
MR NK MAJMUDAR(430) for the Appellant(s) No. 1,2,3,4,5,6
Mr. ADITYASINH JADEJA , AGP for State authority
KRUSHITA B PATEL(7857) for the Respondent(s) No. 4.1,4.2,5
MR. KISHAN H DAIYA(6929) for the Respondent(s) No. 12,13
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 CORAM: HONOURABLE MR. JUSTICE R.M.CHHAYA
        and
        HONOURABLE MR. JUSTICE R.P.DHOLARIA
                      Date : 18/01/2021
                        ORAL ORDER

(PER : HONOURABLE MR. JUSTICE R.M.CHHAYA)

1.0. Present appeal is directed against the impugned judgment and order dated 16.10.2018 passed in Special Civil Application No.718 of 2016.

2.0. The following noteworthy facts emerge from the record of the petition. One deceased Nankabhai Kalabhai was original owner of land bearing survey no.95 admeasuring 10 acre and 20 gunthas situated at village Krankach, Tal: Liliya, Dist. Amreli. The said land came to be purchased by one Nathubhai Bhagwanbhai along with one Kalubhai Arjanbhai. The said land was purchased on 14.5.1979. On the basis of sale deed an entry being no. 1872 came to be mutated and certified ultimately on 3.11.1981. Another entry being no. 2488 was made on 30.11.1993 as heirs of the Kalubhai Arjanbhai one of the private respondent herein decided to divide the land amongst themselves. the said entries i.e. entry no. 1872

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dated 3.11.1981 and entry no. 2488 dated 30.11.1993 as well as subsequent entries being entry no. 558 dated 7.8.2008 came to be taken into suo motu revision by the District Collector, Amreli under Rule 108(6) of the Bombay Land Revenue Rules, 1972. Such show cause notice was issued on 21.7.2012 predominantly on the ground that Kalubhai Arjanbhai one of the purchaser was not agriculturist at the relevant time when the land in question came to be purchased. The District Collector, Amreli by an order dated 11.10.2012 quashed the entries in question, which came to be challenged by the private respondents - original petitioners herein before learned Revenue Secretary (Appeals), which also came to be dismissed vide order dated 14.10.2015. The private respondents - original petitioners filed a writ petition being Special Civil Application No.718 of 2016, which was allowed by the judgment and order dated 16.10.2018. Being aggrieved and dissatisfied with the same, present appeal is preferred under Clause 15 of the Letters Patent.

3.0. Heard Mr. N.K. Majmudar, learned advocate for the appellants, Mr. Adityasinh Jadeja, learned Assistant Government Pleader for the State and its authorities, Mr. Shital Patel, learned advocate, Ms. Krushita Patel, learned advocate and Mr. Kishan Daiya, learned advocate for the private respondents. Synopsis of facts were also submitted by Mr. N.K. Majmudar, learned advocate for the appellants, which are also taken on record.

4.0. Mr. N.K. Majmudar, learned advocate for the appellants has submitted that the Collector has rightly issued the show cause notice as the transaction was void and such transaction can be challenged at any moment. Mr. Majmudar, learned advocate therefore, contended that the conclusion arrived at by the learned

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Single Judge that the action was taken within a period of reasonable time, in facts of this case, is wrong appreciation on facts. Mr. Majmudar also contended that the learned Single Judge has misread the ratio laid down by the Division Bench of this Court in the case of Bharatkumar C Jinwala vs. State of Gujarat and ors reported in 2015(1) GLR 576, Chandulal Gordhandas Ranodariya and Ors vs. State of Gujarat & Ors reported in 2013(2) GLR 1788 as well as judgment of the Hon'ble Supreme Court in the case of State of Gujarat vs. Patel Raghav Natha reported (1996) 2 SCC 187. Mr. Majmudar contended that the fact finding authorities i.e. Collector and Revisional Authority have rightly appreciated the evidence and facts on record and as the transaction itself was void, delay would not defeat the cause. It was contended that one of the purchaser was non agriculturist which is proved beyond doubt by the Collector and Secretary, the learned Single Judge has wrongly not appreciated the same. It is also contended that entire transaction was null and void and same would hit by provisions of Sections 63 & 43 of the Bombay Tenancy and Agriculture Land Act, 1948. On the aforesaid grounds, Mr. Majmudar, learned advocate for the appellants has submitted that appeal requires consideration.

5.0. Per contra, Mr. Shital Patel, learned advocate has supported the impugned order passed by the learned Single Judge. Mr. Patel contended that finding arrived at by the Collector and confirmed by the Revisional Authority that Kalubhai Arjanbhai was not an agriculturist is contrary to record. Mr. Patel also contended that the original petitioners have remained throughout in possession and exercise of powers beyond reasonable period would be unjustified. On the aforesaid ground, it was therefore, contended that appeal is merit­less and same deserves to be dismissed.

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6.0. Mr. Jadeja, learned AGP has adopted the argument made by Mr. Majmudar, learned advocate for the appellants and has submitted that appeal requires consideration.

7.0. No other and further submissions, grounds and contentions have been made by the learned advocates for the respective parties.

8.0. Before reverting to the submissions made, it would also be appropriate to record that another writ petition being Special Civil Application No.20990 of 2015 was preferred by the private respondents - original petitioners against the judgment and order passed by the Collector in RTS Revision Case No.97 of 2012. That the said writ petition is also allowed by this Court and same is accepted by the parties. The learned Single Judge has examined both the aspects viz. (1) Whether exercise of power was within reasonable time or not, (2) Whether the said purchaser was an agriculturist or not. The learned Single Judge has observed thus:

"13. As could be seen from the record of SCA 20990/2015 and the order passed in Revision Case No. 97/2012 by the Collector, Amreli, it has been stated that the heir of Opponent No.7 Jilubhai Nankabhai has raised the objection and since 1951 the forefather of Kalubhai Arjanbhai were holding the agricultural land for which the entries have been made and village form no. 6 are produced. Thereafter it has been observed that when the land in question was purchased in 1979, Kalubhai Arjanbhai has not produced any evidence with regard to his holding the agricultural land in village or at any place. Therefore, Entry No. 1872 has been said to have been irregularly made. The same thing has been therefore considered for Entry No. 2488 and subsequent transaction of Entry No. 558. It is also well accepted that once the forefather of Kalu Arjan had been the agriculturist he would be also an agriculturist and the village form no.6 with entries have been produced. Therefore, it would have been relevant to verify that whether he had ceased to be an agriculturist by disposal of all the lands. Further, even if

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the land is disposed of temporarily for some time one can acquire the same status of agriculturist. Therefore the presumption which has been made in the order of the Collector, Amreli in Revision Application No. 97/2012 cannot be sustained."

8.1. On perusal of the record of the Special Civil Application No.718 of 2016 which is forming part of the record of this appeal, it clearly transpires that such record was placed before the authorities below, however the same have been discarded without any reasons. The learned Single Judge has rightly appreciated the aspect that forefather of Kalubhai Arjanbhai was admittedly an agriculturist as per the said evidence produced on record and has relied upon the relevant entry in village form no.6 and has rightly come to the conclusion that the presumption made by the Collector is not sustainable, which is adopted and followed by the Revisional Authority. Hence, contention raised by the appellants for the first time before this Court in this appeal that the transaction in question would be hit by Sections 63 & 43 of the Bombay Tenancy and Agriculture Land Act, 1948 and that such transaction was void transaction is factually incorrect and de­hors the record. Such assertion is made by the appellants without any basis and contrary to the evidence on record. It goes without saying that the entries were mutated in the revenue record way back in the year 1981 and 1993 and exercise of suo motu powers after more than 2/3 decades would not constitute reasonable time by any measure. The learned Single Judge has rightly come to the conclusion that the transaction is not void and that the exercise of suo motu powers of revision is beyond the reasonable period i.e. after almost more than 31 years and 19 years. We are in complete agreement with the

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findings arrived at by the learned Single Judge.

9.0. Appeal being merit less and deserves to be dismissed and is hereby dismissed. No costs.

10. In view of dismissal of appeal, Civil Application stands dismissed.

(R.M.CHHAYA, J)

(R.P.DHOLARIA, J) KAUSHIK J. RATHOD