Gujarat High Court

Pal Group Co Op Cotton Cell Society ... vs State Of Gujarat on 1 March, 2021

Bench: Vipul M. Pancholi

           C/SCA/17303/2014                          JUDGMENT



     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

      R/SPECIAL CIVIL APPLICATION NO.             17303 of 2014

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI                 :         Sd/

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

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

2    To be referred to the Reporter or not ?                         NO

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

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

=======================================================
        PAL GROUP CO OP COTTON CELL SOCIETY LTD
                          Versus
              STATE OF GUJARAT & 3 other(s)
=======================================================
Appearance:
ANAND YAGNIK for the Petitioner(s) No. 1
MR RB RAVAL AGP (1) for the Respondent(s) No. 12
MR S TRIPATHY(917) for the Respondent(s) No. 3,4
=======================================================

CORAM: HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI

                              Date : 01/03/2021

                                ORAL JUDGMENT

1. This petition is filed under Article 226 of the

Constitution of India, in which, the petitioner

has prayed for following reliefs,

"(A) to quash and set aside the impugned order dated 29.10.2014 passed by learned Special

C/SCA/17303/2014 JUDGMENT

Secretary (Appeals), State of Gujarat at AnnexureA, declaring the same to be erroneous, illegal and unlawful;

(B) to direct respondent authorities to consider the application of the petitioner farmers' cooperative society for permission under Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 read with Rule 36(1)(f) of the Bombay Tenancy and Agricultural Lands Rules, keeping in mind the purpose and object of the petitioner farmers' cooperative society;

(C) to direct the respondent authorities to consider application of the petitioner farmers' cooperative society for conversion of agricultural land into non agricultural use with penalty and/or premium in accordance with law;

(D) During the pendency and/or final disposal of the present petition, be pleased to stay operation, implementation and execution of the order dated 29.10.2014 passed by learned Special Secretary (Appeals), State of Gujarat at AnnexureA;

(E) xxx xxx xxx."

2. Heard learned advocate, Mr. Anand Yagnik appearing

for the petitioner and learned AGP Mr. Ronak Raval

appearing for the respondent nos.1 and 2.

Despiting granting sufficient opportunity, nobody

C/SCA/17303/2014 JUDGMENT

appears on behalf of the respondent nos.3 and 4.

3. The facts of the case leading to filing of the

present petition are as under,

3.1 The petitioner is a registered Cooperative

Farmers' Society registered under the

provisions of the Cooperative Societies Act

at Puna in the year 1924 and the said Society

is engaged in the occupation of selling

cotton, rice, wheat, sugarcane and vegetables

and other agricultural products grown by its

member farmers of Surat District and sale the

same at the highest price for the benefit of

the member farmers.

3.2 The petitioner purchased the land bearing

Block No.278 admeasuring 1,21,736 Sq.Mtrs.

situated at moje Ambheta, Taluka : Olpad,

District : Surat by two separate sale deeds

dated 20.04.2000 and pursuant thereto,

Mutation Entry No.3984 was recorded in the

revenue record on 11.05.2000.

     3.3   Thereafter,               the     petitioner         got       permission

           before         putting          up    construction           of      godowns,

           weighbridge               and     other        buildings            from    the

           competent                authority           on     07.12.2001             and,






       C/SCA/17303/2014                                           JUDGMENT



      thereafter,              the     petitioner           has      put      up     the

      construction.

3.4   However,            Mutation        Entry        No.3984          was       taken

into suo motu revision by the respondent -

Collector by issuing show cause notice dated

18.12.2002 i.e. after a period of two years

and seven months and the said powers were

exercised at the instance of the Deputy

Collector on the complaint filed by the

farmers of Block No.277. In the said show

cause notice, it is alleged that the

agricultural land is purchased by a non

agriculturist i.e. the petitioner -

Cooperative Society without taking permission

under Section 63 of the Bombay Tenancy and

Agricultural Lands Act, 1948 (hereinafter

referred to as "Tenancy Act") and thereby

sought explanation from the petitioner as to

why the said mutation entry should not be

cancelled.

3.5 On receipt of the said show cause notice, the

petitioner filed reply and pointed out

relevant aspects. However, grievance of the

petitioner is that the respondent - Collector

C/SCA/17303/2014 JUDGMENT

came to a conclusion that the agricultural

land is purchased for nonagricultural use by

the petitioner - Cooperative Society in

violation of Section 63 of the Tenancy Act

and, therefore, entry is required to be

cancelled. Accordingly, the order came to be

passed by the respondent - Collector on

20.02.2013.

3.6 Against the said order, the petitioner filed

Revision Application before the respondent -

SSRD and the respondent - SSRD, by impugned

order, rejected the said Revision

Application. Therefore, the present petition

is filed.

4. Learned advocate, Mr. Anand Yagnik appearing for

the petitioner has mainly contended that entry in

question has been cancelled by the respondent -

Collector on the ground that the agricultural land

has been purchased by the nonagriculturist i.e.

the petitioner - Cooperative Society and before

the said transaction, permission under Section 63

of the Tenancy Act was not obtained from the

competent authority. It is further submitted that

in fact, the petitioner - society applied for

C/SCA/17303/2014 JUDGMENT

conversion of the agricultural land into non

agriculture purpose in the year 2002, however, the

same was rejected on the ground that the

proceeding before the respondent - Collector was

pending. He submitted that once again, an

application for the grant of NA permission was

filed before the competent authority in the year

2006, however, the concerned respondent has not

taken any decision. It is further contended by

learned advocate for the petitioner that while

rejecting the Revision Application, the respondent

- SSRD has given direction to the Mamlatdar & ALT,

Olpad to initiate proceeding under the provision

of the Tenancy Act for violation of the provision

of the said Act and the said aspect is to be noted

in the revenue record. It is submitted that the

respondent - SSRD while exercising power under the

provision of the Bombay Land Revenue Code, could

not have given direction to the authority under

the Tenancy Act to initiate proceeding under the

said Act.

5. Learned advocate for the petitioner has placed

reliance upon the decision rendered by this Court

in case of Evergreen Apartment CoOp Housing

C/SCA/17303/2014 JUDGMENT

Society Vs. Special Secretary, Revenue Department,

Gujarat State, reported in 1991 (1) GLR 113. He

has also placed reliance upon judgments of this

Court in case of Janardan D. Patel Vs. State of

Gujarat, reported in 1997 (1) GLR 50 as well as

order dated 20.08.2020 delivered in Special Civil

Application No.7543/2020. It is, therefore, urged

that the impugned order be quashed and set aside.

6. On the other hand, learned AGP Mr. Raval has

opposed this petition and submitted that if there

is violation of the provision of the Tenancy Act,

the concerned revenue authority was duty bound to

consider the same and, therefore, the concerned

revenue authority ought not to have mutated entry

in question in the revenue record. It is further

submitted that the respondent - Collector has,

therefore, initiated suo motu proceeding against

the petitioner for cancellation of the entry in

question and, thereafter, the entry has been

cancelled after giving opportunity of hearing to

the petitioner. He submitted that the Revision

Application filed by the petitioner is also

rejected by the respondent - SSRD and no error is

committed by the respondent - SSRD while rejecting

C/SCA/17303/2014 JUDGMENT

the said Revision Application. He, therefore,

submitted that this Court may not entertain the

present petition. It is also submitted that the

respondent - SSRD has given direction to the

Mamlatdar & ALT to initiate proceeding under the

Tenancy Act and by giving such direction also, no

illegality is committed by the respondent - SSRD.

It is, therefore, urged that this petition be

dismissed.

7. Learned AGP has placed reliance upon the order

passed by this Court in case of Heirs of Haji

Ismail Abdul Raheman Dadi Vs. Ramsing Motibhai

Baria, delivered in Special Civil Application

No.8360/1990.

8. Having heard learned advocates appearing for the

parties and having gone through material placed on

record, it would emerge that the petitioner has

purchased the agricultural land in question by

registered sale deed and in pursuant thereto,

entry in question was mutated, which was certified

on 11.05.2000. It is not in dispute that suo motu

proceedings were initiated after a period of two

years and seven months by the respondent -

Collector and the respondent - Collector cancelled

C/SCA/17303/2014 JUDGMENT

the entry in question on the ground that there is

violation of provision of Tenancy Act and the

Revision Application filed before the respondent -

SSRD was also dismissed on the said ground. It is

also revealed from the order that while passing

the order by the respondent - SSRD, the respondent

- SSRD has given direction to the respondent -

Mamlatdar & ALT to initiate the proceeding under

the Tenancy Act and to register a note in the

revenue record with regard to the same.

9. At this stage, this Court would like to refer to

the decision upon which reliance is placed by

learned advocates appearing for the parties in

case of Evergreen Apartment CoOp Housing Society

(supra). In the said judgment, this Court has

observed that the power of revision must be

exercised within reasonable time. It is further

held that "so far as the proceeding under Rule 108

of the Bombay Land Revenue Rules popularly known

as RTS proceedings are concerned, it is well

settled that the entries made in the revenue

records have primarily a fiscal value and they do

not create any title. Such mutations have to

follow either documents of title or the orders

C/SCA/17303/2014 JUDGMENT

passed by the competent authority under special

enactment. Independently the revenue authorities

cannot pass orders of cancelling entries on an

assumption that the transaction recorded in the

entries are against the provision of a particular

enactment". It is further held that whether the

transaction is valid or not, has to be examined by

the competent authority under a particular

enactment by following procedure prescribed

therein. It is also held that the power conferred

under one enactment cannot be exercised while

dealing with the question under another enactment.

10. In case of Jayantilal J. Soni Vs. State of

Gujarat, reported in 2005 (4) GLR 3354, this Court

has held that in a case where transfer of a land

is made by registered sale deed, if the revenue

authority is prima facie of the view that such

transferred is barred under another enactment,

then in that case, appropriate course for the

revenue authority would be to record the entry for

the registered sale deed with express observation

that the registered sale deed is prima facie in

breach of other enactment and the said entry

should be made subject to final decision, which

C/SCA/17303/2014 JUDGMENT

may be taken by the competent authority under

other concerned enactment.

11. In case of Heirs of Haji Ismail Abdul Rahemand

Dadi Vs. Ramsing Motibhai Baria delivered by this

Court in Special Civil Application No.8360/1990,

this Court has observed in Para No.4 that it is

merely a direction to the concerned authority to

initiate proceedings, however, no such proceedings

have been initiated till date, therefore, no cause

of action can be said to have arisen.

12. In the present case also, it is the specific case

of the petitioner that as per the direction issued

by the respondent - SSRD, the respondent -

Mamlatdar & ALT has already issued show cause

notice to the petitioner for alleged violation of

provision of the Tenancy Act and, therefore, the

aforesaid decision upon which reliance has been

placed by learned AGP, would not render any

assistance to him.

13. Thus keeping in view the aforesaid decisions

rendered by this Court, if the facts of the

present case, are carefully examined, it is

revealed that the concerned revenue authority has

mutated the entry in the revenue record on the

C/SCA/17303/2014 JUDGMENT

basis of the registered sale deed executed in

favour of the petitioner, however after a period

of two years and seven months, the suo motu

proceedings were initiated by the respondent -

Collector for cancellation of said entry. The

entry in question has been cancelled by the

respondent - Collector by observing that the

petitioner has not obtained any permission under

Section 63 of the Act. This Court is of the view

that the decision taken by the respondent -

Collector is to be set aside on the ground that

the concerned authority has not committed any

error while mutating the entry in the revenue

record on the basis of the registered sale deed.

At the most, the direction can be issued to make

an endorsement in the said entry that there is

violation of provision of a particular act and,

therefore, if the action is initiated under the

said enactment, the said entry would be subject to

final outcome of the said proceeding. Similarly,

the respondent - SSRD has also wrongly confirmed

the order passed by the respondent - Collector and

on the contrary, the respondent - SSRD has given

direction to the respondent - Mamlatdar & ALT to

C/SCA/17303/2014 JUDGMENT

initiate proceeding under the Tenancy Act for the

alleged violation of the provision of the Tenancy

Act and on the basis of such direction, the

respondent - Mamlatdar & ALT has already issued

show cause notice to the petitioner. Thus, this

Court is of the view that such direction is also

required to be set aside.

14. At this stage, it is pertinent to note that prior

to initiation of suo motu proceeding for alleged

violation of the provisions of the Tenancy Act,

the petitioner has already filed an application

for conversion of the land from agriculture to

nonagricultural use under Section 65 of the

Bombay Land Revenue Code, however, the said

application was rejected but thereafter once

again, the application for the grant of NA

permission has been filed before the competent

authority in the year 2006. Thus it is the

specific case of the petitioner that the

application for the grant of NA permission is

pending before the competent authority and,

therefore, the respondent authorities could not

have initiated proceeding for cancellation of

entry in question.

             C/SCA/17303/2014                                         JUDGMENT



15.   In   view      of        the   aforesaid           facts      of    the      present

case, the impugned order dated 29.10.2014 passed

by the respondent - SSRD in Revision Application

No.MVV/HKP/ST/31/2003 and the order dated

20.03.2003 passed by the respondent - Collector

are quashed and set aside. Mutation Entry No.3984,

which was recorded in the revenue record on

11.05.2000 pursuant to the sale deed executed in

favour of the petitioner, shall stand restored.

However, endorsement shall be made that it is in

alleged violation of provision of the Tenancy Act

and, therefore, the said entry shall be subject to

final outcome of the tenancy proceeding, which may