Kanaiyalal Mafatlal Patel vs State Of Gujarat
2022 Latest Caselaw 379 Guj

     C/LPA/14/2022                                   ORDER DATED: 12/01/2022



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 14 of 2022
          In R/SPECIAL CIVIL APPLICATION NO. 2709 of 2020
                                  With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
             In R/LETTERS PATENT APPEAL NO. 14 of 2022
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                     KANAIYALAL MAFATLAL PATEL
                                 Versus
                          STATE OF GUJARAT
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Appearance:
MR K B VIRVADIYA(11272) for the Appellant(s) No. 1
MR SP MAJMUDAR with MR NISHIT P GANDHI(6946) for the Appellant
 for the Respondent(s) No. 10,11,12,13,14,15,16,17,18,19,2,3,4,5,8
MR BHARGAV PANDYA, ASSTT. GOVERNMENT PLEADER/PP(99) for the
Respondent(s) No. 1
MR PERCY KAVINA, SR. ADVOCATE with MR ASHOK N PARMAR(2431) for
the Respondent(s) No. 6,7,9
MR HARIVADAN MISHRA(3753) for the Respondent(s) No. 6,7,9
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   CORAM:HONOURABLE MR. JUSTICE A.J.DESAI
           and
           HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE

                          Date : 12/01/2022
                            ORAL ORDER

(PER : HONOURABLE MR. JUSTICE A.J.DESAI)

[1.0] By way of present Appeal under Clause 15 of the Letters Patent, the original petitioner has challenged the judgment dated 24.12.2021 passed by the learned Single Judge in Special Civil Application No.2709 of 2020 by which the petition filed by the present appellant challenging an order dated 06.09.2018 passed by the Additional Secretary, Revenue Department (Appeals), Ahmedabad in Revision Application No.MVV/CON/GDHN/4/2018 as also the order dated 17.05.2012 passed by the Prant Officer, Gandhinagar in Case No.PO/Fragmentation Act/SR/2/2010, by which the Prant Officer, Gandhinagar has held that there is a breach of Section 31(1)(b) of

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the Gujarat Prevention of Fragmentation and Consolidation of Holdings Act, 1947 and ordered summary eviction of the original petitioner from the land in question.

[2.0] We have heard learned advocate Mr. S.P. Majmudar for learned advocate Mr. Nishith Gandhi appearing for the appellant herein - original petitioner and learned Senior Advocate Mr. Percy Kavina for learned advocate Mr. Ashok Parmar appearing for the private respondent Nos.6 to 9, since caveat has been filed by the private respondent Nos.6 to 9 and the learned Assistant Government Pleader Mr. Bhargav Pandya appearing for the respondent No.1.

[3.0] The short facts emerging from the record of the case are as follows:

[3.1] That, the issue in the present appeal is with regard to agricultural land bearing Block No.521 (New Block Survey No.805) admeasuring 4755 Sq. Mtrs. situated in the sim of village Ambapur, Taluka and District Gandhinagar. That, the land originally belonged to one Shankarbhai Durgadas, who died leaving behind him three sons viz. Becharbhai, Prabhudasbhai and Lalbhai. The case put forward by the appellant - original petitioner is that respondent Nos.6 to 9 have their undivided share in respect of 2377.5 Sq. Mtrs. of land, out of 4755 Sq. Mtrs. The said respondents sold their portion of land by a registered sale deed to the original petitioner, by a registered sale deed on 21.07.2007 pursuant to which an Entry No.6129 was mutated on 25.07.2007. That, the names of the contesting respondent Nos.6 to 9 were mutated with regard to the land in question on 26.12.2007 vide Entry No.6167 on the death of Prabhudas

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Shankarbhai (This entry has been produced by the original petitioner alongwith the present appeal at Annexure-II, Page 22).

[3.2] That, the contesting respondent Nos.6 to 9 filed a Revision Application No.2 of 2010 before the Prant Officer, Gandhinagar challenging the sale of 2007 alleging breach of the provisions of the the Gujarat Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (hereinafter referred to as "Fragmentation Act") in the year 2010. After hearing the parties including the original petitioner, the Prant Officer, Gandhinagar allowed the said Revision Application by order dated 26.03.2010.

[3.3] It is the case of the original petitioner that being aggrieved with the said decision dated 26.03.2010, the original petitioner filed Revision Application No.4/2018 under Section 35 of the Fragmentation Act before the Special Secretary, (Appeals). The Special Secretary, Revenue Department vide an order dated 06.09.2018, dismissed the said revision application. It is the case of the original petitioner that when the aforesaid Revision Application No.4/2018 was being heard, it was informed that another Revision Application No.3/2013 had been filed at the instance of the original petitioner which had already been decided by a judgment dated 10.07.2015, which was controverted by him. Said revision application was dismissed by the said order. However, without considering several contentions raised by the said revisionist, revision application came to be dismissed, which was challenged in the captioned petition.

[3.4] Being aggrieved with the dismissal of Revision Application No.4/2018, the original petitioner preferred Special Civil Application No.2709 of 2020 before the learned Single Judge and

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the learned Single Judge has dismissed the said petition.

Hence, present Letters Patent Appeal.

[4.0] Learned advocate Mr. S.P. Majmudar for learned advocate Mr. Nishith Gandhi appearing for the original petitioner raised several contentions with regard to legality and validity of the orders passed by the Authorities below as well as the reasons assigned by the learned Single Judge while dismissing the petition.

[4.1] The first contention raised on behalf of the original petitioner is with regard to locus of respondent Nos.6 to 9 challenging the transfer of property under the provisions of the Fragmentation Act since the original petitioner has purchased the undivided share of the property belonging to his co-owners i.e. respondent Nos.10 to 19. He would submit that the private respondents are not affected at all by the transaction between the co-owners and the original petitioner. There is no legal injury caused to private respondent Nos.6 to 9 - original applicants and therefore, the Authorities below ought not to have entertained any application and therefore, the learned Single Judge ought to have quashed and set aside the orders passed by the Authorities below. In support of his submission, learned advocate Mr. Majmudar hs relied upon the decision of the Hon'ble Supreme Court rendered in the case of Ayaaubkhan Noorkhan Pathan vs. State of Maharashtra and Ors. reported in (2013)4 SCC 465 as well as another decision of this Court in the case of Phoenix Dental and Medical Private Limited vs. State of Gujarat delivered on 04.09.2019 in Special Civil Application No.15890 of 2018. By taking us through paragraph 9 of the judgment of Hon'ble Supreme Court in the case of Ayaaubkhan Noorkhan

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Pathan (Supra), he would submit that having no share in the property purchased by the petitioner, the litigation would not have been continued by the Authorities below.

[4.2] He would further submit that the Prant Officer ought not to have entertained the application filed by respondent Nos.6 to 9 which was filed in the year 2010 i.e. after more than 2 & ½ years challenging the transaction and that too when the said transaction was by way of a registered sale deed. He would submit that this contention has not been properly dealt with by the Authorities below as well as by the learned Single Judge, in view of catena of decisions with regard to the powers of entertaining applications like revision applications and/or appeal etc. under different land laws including the provisions of the Fragmentation Act. In support of his said submission, he has relied upon a decision of the Division Bench of this Court in the case of Patel Somabhai Devidas vs. Dahyaji Somaji Thakor reported in 2010 (5) GLR 4152 as well as unreported decision dated 26.10.2018 of this Court in the case of Heirs of Decd Motiben vs. State of Gujarat rendered in Special Civil Application No.1707/1995 and Special Civil Application No.10091/1995. He would submit that the Authority ought not to have entertained the application which had been filed at a belated stage i.e. after a period of 2 & ½ years.

[4.3] He has further submitted that the respondent Nos.6 to 9 had challenged the transaction by filing an application under the provisions of the Fragmentation Act requesting the Authority to condone the delay and hear the matter on merits. However, without condoning the delay the matter has been decided.

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[4.4] He would submit that the land which has been purchased by the original petitioner is not a fragment since the property purchased by the original petitioner is admeasuring 2377.5 Sq. Mtrs. i.e. around 23 Gunthas wherein the size of fragment considering the area is around 20 Gunthas. In support of his above submission, learned advocate Mr. Majmudar has taken us through the provision of Section 31 of the Fragmentation Act. He would submit that Section 31 of the Fragmentation Act has been wrongly applied by the Authority in the present case since there is no partition of the land.

[4.5] Insofar as the observations made by the learned Single Judge in the impugned judgment is concerned, he would submit that the learned Single Judge ought not to have accepted the case put forward by the respondents that earlier revision application was filed by the appellant herein - original petitioner only on the ground that they have similar address mentioned in the Revision Application.

[4.6] He has further submitted that there is no endorsement in revenue record that the parcel of land in question is a fragment and therefore also, the Authority ought not to have exercised the powers under the Fragmentation Act treating the land as fragment.

He, therefore, would submit that present appeal be admitted and allowed.

[5.0] Per Contra, learned Senior Advocate Mr. Percy Kavina for learned advocate Mr. Ashok Parmar appearing for the private respondent Nos.6 to 9 has opposed this appeal. He would submit that the learned Single Judge has rightly dealt with the case on

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hand considering the factual aspect of the matter and the ratio laid down by the Hon'ble Apex Court as well as this Court relied upon by the original petitioner referred to in the impugned judgment. He would submit that the entire property in question was originally held by Shankarbhai Durgadas i.e. ancestor of all the private respondent Nos.6 to 19. Neither a family partition nor division of the land has ever taken place between them and therefore, the submission made on behalf of the original petitioner, who had purchased the property from some of the legal heirs, there is no question of referring to the details about the metes and bounds of that portion of land in the sale deed which has been sold without the consent of co-owners. He would submit that it has been specifically stated before the Prant Officer while challenging the transaction in the year 2010 that no notice under Section 135D of the Bombay Land Revenue Code was ever issued to any of the respondent Nos.10 to 19 and when they came to know about the same in the year 2010, immediately the revision application was filed and therefore, it cannot be said that the case is suffering from delay and laches. The application was specifically filed under the provisions of the Fragmentation Act and therefore, when the property is jointly held by number of co-owners, each one has equal right to hold any part of the land qua his/her share and therefore, in absence of such consent and when the Authority found that there is a breach of the provisions of the Fragmentation Act and particularly breach of Section 31 of the Fragmentation Act and the application was filed immediately as and when respondent Nos.6 to 9 came to know about the transaction, the Authorities have rightly entertained the revision application.

[5.1] He would further submit that the decision dated

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17.05.2012 delivered by the Prant Officer was challenged by the original petitioner himself by way of filing Revision Application No.3 of 2013 which came to be dismissed on 10.07.2015. This order was never challenged by the petitioner before higher Forum like filing writ petition before this Court. However, suppressing this aspect the original petitioner again preferred Revision Application No.4 of 2018 and when it was brought to the notice of the revisional authority as well as the original petitioner that earlier revision application filed at the instance of the original petitioner has been dismissed by a reasoned order and the said order has become final, the original petitioner tried to raise a vague defence stating that he had not filed any such application or he had no knowledge about the same. To get support of the submission, the original petitioner has placed opinion of private handwriting expert which has rightly not been accepted by the Authorities below or by the learned Single Judge by discussing the same in the impugned judgment. He would further submit that even if it is accepted that no revision application i.e. Revision Application No.3 of 2013 was filed at the instance of the original petitioner, the original petitioner challenged the order of 2012 passed by the Prant Officer only in the year 2018 and therefore, as the revision itself suffers from delay and laches and no explanation whatsoever has been stated in the revision application for filing the same at belated stage, the original petitioner would not be entitled to raise the question of delay. He, therefore, would submit that the appeal be dismissed.

[6.0] Having heard the learned Counsel appearing for respective parties and considering the judgment impugned in the present appeal, it appears that there is no dispute with regard to the fact

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that the land originally belonged to one Shankarbhai Durgadas, who died leaving behind him three sons viz. Becharbhai, Prabhudasbhai and Lalbhai. Respondent Nos.6 to 9 are the legal heirs of Prabhudasbhai i.e. son of Shankarbhai Durgadas and respondent Nos.10 to 19 are the legal heirs of Becharbhai and Lalbhai. The property in question admeasures 4755 Sq. Mtrs. which belonged to Shankarbhai Durgadas and thereafter inherited by his three sons. The property was sold by respondent Nos.10 to 19 by a registered sale deed, pursuant to which Entry No.6129 was mutated on 25.07.2007 in the revenue record. There is an endorsement about the said sale and accordingly, name of the present appellant - original petitioner was recorded qua the land admeasuring 2377.5 Sq. Mtrs. The entry has been produced on record which does not show that any notice under Section 135D of the Bombay Land Revenue Code was ever issued or served to respondent Nos.6 to 9 and that was the case of respondent Nos.6 to 9 while filing Revision Application before the Prant Officer. That, Prabhudas Shankarbhai i.e. ancestor of respondent Nos.6 to 9 passed away on 22.01.2007 and accordingly the names of respondent Nos.6 to 9 were mutated by an Entry No.6167 on 26.12.2007 which has been produced by the original petitioner himself wherein names of respondent Nos.6 to 9 were entered with regard to entire parcel of land. There is no reference qua entering names of those persons for remaining land of 2335 Sq. Mtrs. However, the Authority below as well the learned Single Judge has rightly held that it cannot be said that there is delay and laches in filing the revision application since the names were mutated qua entire parcel of land. However, as and when they came to know about the transaction in the year, which is contrary to the provisions of the Fragmentation Act, appropriate application was filed. Therefore, the judgment relied

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upon by learned advocate Mr. Majmudar in the case of Patel Somabhai Devidas (Supra) would not be applicable in the facts of the present case.

[6.1] Apart from the above fact, even if we accept that there was no revision application in the year 2013 against the decision of the Prant Officer dated 17.05.2012 by the original petitioner, for the first time, only in the year 2018 i.e. after a delay of 6 years, the original petitioner challenged the said order of the Prant Officer. There is no explanation on the part of the original petitioner for filing the revision application at such a belated stage. There is no reference at all in the revision application to the fact that they came to know about any order passed in other revision application allegedly filed at the instance of the original petitioner. The learned Single Judge has dealt with this aspect in detail in paragraphs 10.3 and 10.4 of the impugned judgment, which read as under:

"10.3 As far as the contention of learned advocate Mr. Thakor about the fact that the earlier Revision Application No.MVV/CON/GDHN/3/2013 was not preferred by the petitioner also requires to be rejected simply for the reason that this was a private dispute in respect of the land which is sold in favour of the petitioner, only the petitioner and respondent Nos.6 to 9 are the interested parties in respect of the aforesaid transaction. Except the petitioner no one can be presumed to have any interest in respect of the aforesaid land. If a person prefers an application that application is required to be decided independently by the revenue authorities and the revenue authority decides such application only on the basis of the material available on record, and therefore, no one can be sure at the time of filing application that the application would be decided in a particular manner only. Therefore, this Court has no reason to believe that any other person could have ever filed the revision application in the year 2013, as alleged by the petitioner. The precise fact can be substantiated from the fact that once the petitioner came to know about the aforesaid application, the petitioner did not file any complaint under the provisions of the Indian Penal Code by making an attempt to register FIR or by preferring any application before the Magisterial Court. All that the

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petitioner has done was he took help of a private hand writing expert and got a favourable opinion on the basis of the photocopy of the document without providing the original and preferred an application before the SIT without making any attempt to file a complaint. In the instant case, the petitioner files a complaint before the SIT and the SIT vide order dated 8.10.2020 rejected the application preferred by the petitioner on the ground that the matter being sub judice the petitioner did not take any further action challenging the aforesaid order which clearly shows that he aforesaid application was preferred before the SIT by petitioner only for the sake of filing an application without any seriousness, and therefore also, the same also cannot be considered.

10.4 As far as the judgments cited by learned advocate Mr. Thakor are concerned there cannot be any dispute about the ratio laid down in the aforesaid judgments. However, one cannot lose sight to the fact that in respect of those cases, there was violation of principles of natural justice, which could be established by the petitioners of those cases. In the instant case, the petitioner could neither establish the knowledge of the respondent Nos.6 to 9 nor from the address of the petitioner, the petitioner could establish that the petitioner was actually not residing on the address stated in the revision applications. On the contrary, the petitioner himself filed Revision Application No.MVV/CON/GDHN/4/ 2018 wherein also the very address which the petitioner is disputing was stated, and therefore, it cannot be believed that the aforesaid address which is produced by petitioner himself in his application was stated by the petitioner by mistake and actually the petitioner was not staying there. Hence, as the petitioner could not establish that there is actually violation of principles of natural justice, those judgments would not help the petitioner as from the record it seems that though the petitioner was served on the disputed address, the petitioner deliberately has decided not to participate in the proceedings, and therefore, such act of the petitioner cannot be termed as violation of principles of natural justice. Similarly, as stated in foregoing paragraphs, the petitioner could not establish that when the respondent Nos.6 to 9 gave an application to the Prant Officer for initiating the proceedings under the Fragmentation Act they had prior knowledge about the sale transaction in favour of the petitioner. The limitation would start from the date of knowledge to respondent Nos.6 to 9 and resplendent Nos.6 to 9 categorically stated in the application that they were never served with notice under Section 135D of the Bombay Land Revenue Code, and therefore, though there cannot be any dispute about the ratio of the judgment cited by learned advocate Mr. Vikram Thakor, those judgments would not help the petitioner as learned advocate Mr. Thakor could not point out that there was delay in filing application by the respondents by placing any materiel establishing that the

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respondent Nos.6 to 9 had prior knowledge about the aforesaid sale transaction."

We are in agreement with the observations made by the learned Single Judge, after having gone through the order dated 10.07.2015 passed by the Additional Secretary, Revenue Department (Appeals) in Revision Application No.3/2013 and the impugned order dated 06.09.2018 again passed by the same Authority.

[6.2] As far as the question of locus for challenging the sale is concerned, it is an undisputed fact that all the respondents are joint owners of the property and there is no partition of the property till date. There is no demarcation of the property at all and therefore, it cannot be said that the respondent Nos.6 to 9 had no locus to challenge the transaction which affect their right to choose the portion of land at the time of partition and therefore, the decision relied upon by learned advocate Mr. Majmudar in the case of Ayaaubkhan Noorkhan Pathan (Supra) is not applicable to the facts of the case on hand.

[6.3] Section 31 of the Fragmentation Act which was applicable at the time of transaction reads as under:

"31. Restrictions on alienation and sub-division of consolidated holdings.-

(1) Notwithstanding anything contained in any law for the time being in force, no holding allotted under this Act, nor any part thereof, shall be -

(a) transferred, whether by way of sale (including sale in execution of a decree of a Civil Court or for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) or by way of gift, exchange, or lease, or otherwise, except in accordance with such

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conditions as may be prescribed;

(b) sub-divided (including sub-division by a decree or order of a Civil Court or any other competent authority) except with the permission in writing of the Collector."

A bare reading of the aforesaid provision makes it clear that there are restrictions on alienation and sub-division of consolidated holdings and restriction on transfer of any part of such holding even by transfer by way of sale including sale in execution of a decree of a Civil Court or for recovery of arrears of land revenue unless permission is granted by the Collector.

[6.4] The property in question is of the joint ownership of respondent Nos.6 to 19 and therefore, we are of the opinion that the transferring part of the land without prior permission of the Collector would be breach of provisions of the Fragmentation Act and therefore, the Authorities below as well as the learned Single Judge has committed no error in deciding the case against the original petitioner.

[7.0] Therefore, we do not find any reason to interfere with the impugned judgment passed by the learned Single Judge. Hence, present Letters Patent Appeal is dismissed.

In view of dismissal of Letters Patent Appeal, no orders in Civil Application (For Stay) No.1 of 2022 and same stands disposed of accordingly.

(A.J. DESAI, J.)

(ANIRUDDHA P. MAYEE, J.) Ajay