Himatbhai Kalabhai Sarikhada vs State Of Gujarat
2022 Latest Caselaw 9415 Guj

      C/SCA/18118/2019                             JUDGMENT DATED: 08/11/2022




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/SPECIAL CIVIL APPLICATION NO. 18118 of 2019

FOR APPROVAL AND SIGNATURE:

HONOURABLE MR. JUSTICE A.Y. KOGJE
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1      Whether Reporters of Local Papers may be allowed                 Yes
       to see the judgment ?

2      To be referred to the Reporter or not ?                          Yes

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

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

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                         HIMATBHAI KALABHAI SARIKHADA
                                     Versus
                              STATE OF GUJARAT
===============================================================
Appearance:
MRS FALGUNI D PATEL(2053) for the Petitioner(s) No. 1
MS. SURBHI BHATI, AGP, for the Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                               Date : 08/11/2022
                               ORAL JUDGMENT

[1] Rule. Learned AGP waives service of rule on behalf of

respondents.

[2] This petition under Article 226 of the Constitution of India is

filed against the order dated 27.03.2018 passed by the Special

Secretary in Revision Application No.40 of 2017. By the aforesaid

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order, the Special Secretary, Revenue Department had confirmed

both the order of the Collector, Amreli dated 01.09.2017 in Appeal

No.65 of 2017 and order dated 14.03.2017 by the Deputy Collector,

Lathi and order dated 23.08.2016 passed by the Deputy Mamlatdar

(Revenue) Lathi. The essential issue is with regard to the entry

No.2315 and 4581 pertaining to purchase two plots of land by

registered sale deed bearing revenue survey No. 368. Thereafter,

entry regarding sale by the petitioner of another plot of land being

survey No.400 on 31.05.2006 to a third party. By the order, Deputy

Mamlatdar had rejected the entry on the ground that the issue

whether the petitioner was farmer/agriculturist could not be verified

and therefore, he had no right to deal with agricultural land.

[3] Learned advocate for the petitioner submitted that grand

father of the petitioner as well as father of the petitioner belonging

to Scheduled Caste, were agriculturists of village Varsada and were

holding Khata No.76 and were owners and occupiers of survey

No.269. This fact was recognized by entry No.75 of the

promulgation of old Vadodara State and therefore, the petitioner

was also an agriculturist by birth. It is submitted that when the

petitioner was minor in the year 1976, father of the petitioner had

sold of agricultural land, but immediately thereafter, in the year

1977 the father of the petitioner purchased another piece of land

bearing survey No. 400/paiki 1 of village Varsada which at the

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relevant time was under a 'Banakhat'. The name of the mother of

the petitioner was mutated in connection with survey No.400 paiki 1

in the year 1996 on the basis of a registered sale deed with entry

No.2291 and it is thereafter that the petitioner had entered into

transaction which was in the year 2016 and therefore, the petitioner

was indeed an agriculturist. This aspect is completely given a go-

bye by the authorities including SSRD and by treating the petitioner

as non-agriculturist, not only the entry with regard to the

petitioner's land, and transaction was cancelled, but by the

impugned order passed by the Collector, directions were also issued

to take into the revision entry Nos.2291 and 3791 by invoking

Section 84C of the Bombay Land Revenue Code.

[3.1] Learned advocate for the petitioner submitted that the

petitioner who was a agriculturist by birth and that had remained

connected with the agriculturist activity throughout, may not be

treated as non-agriculturist without taking into consideration the

averments of the petitioner about the father and grand father of the

petitioner being agriculturist of the very same village. It is submitted

that the authorities have disregarded such contention of the

petitioner, merely by stating that the petitioner has not produced

sufficient evidence on record in connection with the fact of father

and grand father being a agriculturist.

       C/SCA/18118/2019                            JUDGMENT DATED: 08/11/2022




[4]       Learned advocate for the petitioner has relied upon decision

of this Court in case of Bavani Kanpari Balpari v/s. State of

Gujarat in Special Civil Application No.19629 of 2017,

particularly observations made in para-5.2.

[5] Learned Assistant Government Pleader opposing the grant of

petition justified the order passed by the authorities at three stages,

stating that the authorities have given concurrent finding of facts

and have not accepted the status of the petitioner as an

agriculturist on the basis no evidence being produced by the

petitioner in this regard. Learned AGP submitted that the authorities

were justified in holding that the petitioner could not make out a

case on the basis of evidence of their father and grand father being

agriculturist nor the petitioner could make out a case that after sale

of their ancestral land in the year 1976, the father of the petitioner

had purchased agricultural land in the year 1977 as the same was

under a 'Banakhat' and only in the year 1976, registered sale deed

was executed in connection with the land for which Banakhat was

executed for the year 1977. Therefore, for long gap between 1977

to 1996, the petitioner was not an agriculturist.

[6] The Court has heard learned advocates for the parties and

perused the documents placed on record. It is a case of the

petitioner that the petitioner belongs to Schedule Cast and is legal

heir of late Naranbhai Sangabhai (Grandfather) and late Kalabhai

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Naranbhai Sarikhda(Father), who were holding ancestral agricultural

land in village Varsada of Amreli Taluka having account holder and

farmer in Account No.76 land for survey nos. 269 and entry no. 75

of promulgation old Vadodara State and hence petitioner is farmer

by birth. From 10.01.1960, the said land was jointly in the name of

Khimabhai Naranbhai(Uncle of the petitioner) and Kalabhai

Naranbhai (Father of the petitioner) as grandfather of the petitioner,

Naranbhai was expired and entry No.773 was made to that effect in

record of rights. Thereafter on 25.12.1975, family arrangement was

made and land Sr. No. 269 came to the share of father of the

petitioner. A revenue entry No. 1321 was made to that effect in

revenue record. On 04.06.1976 when petitioner was minor, his

father Kalabhai had to sold away the land which was came to his

share as the father of the petitioner was suffering from serious

illness of Cancer. A revenue entry No.1342 was made to that effect

in record of rights. But thereafter immediately on 03.02.1977, the

father of the petitioner had purchased the land survey no. 400/ paki

1 in same village of Varsada by way of "Banakhat" and thereafter

father of the petitioner was in possession of the said land and was

cultivating the said land for the survival of his family. The condition

of the 'Bankhat' was that the father of the petitioner had to deposit

the entire amount of loan which was taken by earlier landlord

(Parmar Malabhai Pithabhai) from the Gujarat State Co.Op. Bank,

Amreli on the said land. The loan amount was considered as

C/SCA/18118/2019 JUDGMENT DATED: 08/11/2022

purchase price of the land. Thereafter, father of the petitioner had

deposited the entire loan amount of the Bank but during that period

father of the petitioner was expired and petitioner was minor and

his mother was illiterate lady, therefore petitioner could not

obtained and got the Registered sale deed of the said land in their

favour. But thereafter only on 15.05.1996, the mother of the

petitioner, Maniben Kalabhai, had obtained registered sale deed in

her favour and entry No. 2291 was made to that effect in the record

of rights and hence the petitioner was a joint account holder in land

of Account No.1188, R.S.No.400 paiki 1 for Hectare 0-64-22 situated

in village Varasada, Dist. & Taluka : Amreli. Thereafter the petitioner

had purchased one another land admeasuring Hectare 0-80-94 out

of R.S.N0.368 Paiki 17 Hectare 1-61-88 of Account No.144 from one

Parmar Malabhai Pithabhai vide registered sale deed No.433/2016

and since then he was carrying agriculture activity in it and after

purchasing the part land of Sr. No.368, the petitioner had sold the

land Sr.No. 400 to one Chamubhai Hathibhai on 31.05.2016. That

the entry regarding the purchase and sale deed was made in

revenue record vide entry No.2315 & 4581 on 25.05.2016 &

31.05.2016 respectively.

[7] The document at Annexure-C is the report of the Mamlatdar,

Amreli to Mamlatdar, Lathi dated 22.08.2016, wherein it is recorded

that entry No.2201 dated 27.05.1996 was belonging to the sale of

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survey No.400 by the original owner Dhiru Premji to Maniben

Kalabhai, mother of the petitioner and entry No.3791 dated

02.01.2012 was an entry pertaining to sale of survey No.400 paki 1

between Maniben Kalabhai and Himatbhai Kalabhai (petitioner) and

Niruben Kalabhai (sister of the petitioner). Therefore, on the basis of

such report, the mother of the petitioner accepted as an

agriculturist way back in the year 1996 owards.

[8] From the record, it appears that this aspect was brought to

the notice of all three authorities however, the authorities have

brushed aside such contention merely on the ground that it was for

the petitioner to place on record the evidence of such nature.

[9] As is observed in the preceeding paras, the petitioner had

claimed to be an agriculturist by birth, where the grand father and

the father of the petitioner were holding land bearing survey No.269

and vide promulgation entry No.75 of old Vadodara State, ancestors

of the petitioner were agriculturist. Now, it is a matter of record

which the authorities could not have brushed aside such a

contention as the record would be that of Government itself and if

the verification could have undertaken by the authorities itself with

survey numbers and entry number alongwith Khata numbers of the

ancestors of the petitioner which was available with the State

Government. It is also pertinent to refer that once the ancestral land

bearing survey No.269 was sold in the year 1976, immediately in

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the year 1977, another agricultural land was purchased by the

father, which after his death was transferred in the name of the

petitioner and therefore, in the opinion of the Court, family had

remained connected with the agricultural activity. Therefore, the

authorities have erroneously come to the conclusion that the status

of the petitioner as an agriculturist was extinguished in view of the

record not showing any agricultural land in the name of the

petitioner for his family members. In doing so, the authorities have

completely disregarded the contention by adopting technical view

that the Banakhat with regards to another agricultural land

executed in the year 1977 would not give the status of an

agriculturist to the petitioner. At the same time, the fact that the

mother of the petitioner was holding agricultural land though under

Banakhat, cannot be interpreted and denuded the petitioner of his

status as agriculturist.

[10] This Court in a reported decision in case of Mansukhbhai

Haridas Kanabar and others v/s. State of Gujarat and others,

reported in 2022(2) GLR 1133 has held as under:-

"16. However, the status of agriculturist depends upon the holding of an agricultural land. It is not the matter of dispute that the father of the petitioners was holding agricultural land since 1962. In the year 1968, there appears to be sale of said agricultural land of Villaeg:Vitthalpur, Tal:Talal, Dist:Junagadh. It is equally established as a matter of fact that after the sale in 1968, there is a breach of an agricultural land by the father of the petitioners on 10.07.1970 vide registered sale-deed of Survey No.164 of Village:Javitri, Tal:Talala.

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17.The Court has taken into consideration the registered saledeed. The mutation entry being Mutation Entry No.1179 in Village Form No.6 is produced along with the record, which refers to the registered sale-deed no.281 dated 10.07.1970 and the same is certified on 04.12.1998. This would indicate that the status of father of the petitioners as agriculturist was accepted when the Entry No.1179 of a document dated 10.07.1970 was certified. Thereafter, on 04.12.1998, Entry No.1180 is by way of succession when the father of the petitioner expired on 31.05.1984. This was also certified. Merely because there is a delay in certifying the mutation entry on the basis of registered sale-deed of 10.07.1970 and heirship entry on the basis of demise of father of the petitioners on 31.05.1984 will not denude the petitioner of their status as an agriculturist. Moreover, consistently, vide revenue entries made in the Year 1999, 2002, 2005 and 2007, the petitioners have one way or another dealt with agricultural land, and therefore, conclusion of the Collector with regards to violation of Section 75(G) of the Saurashtra Gharkhed, Tenancy Settlement and Agricultural Lands Ordinance, 1949 on account of petitioners' being nonagriculturist cannot be upheld.

18.The aforesaid chronology indicate that though by the impugned order, the Collector appears to have set aside the revenue entry of the year 1998, but, in fact, is questioned the status of the agriculturist, which the father of the petitioners was holding in the year 1962 and after disposing of an agricultural land in the year 1968 and having purchased agricultural land in the year 1970 has in fact the decision of the revenue authority which was taken way back in the year 1968."

[11] In the order of this Court in case of Bavaji Kanpari Balpari (Supra), in

para-5.2, this Court has held as under:-

"5.2 In view of the above total facts and the providence in the aforementioned resolutions cumulatively operating, the reasoning adopted by the Collector and the revisional authority in denying the petitioner the Certificate of Agriculturist on the ground that the land was purchased after 35 days and another land was purchased after 15 days and that during such period the petitioner was liable to be treated as non-agriculturist, is too wooden, pedantic and antithetic to

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the purpose, to be accepted. It defies the spirit of policy of the treating person agriculturist. The reasoning is a virtual negation of what is contemplated in the aforementioned Resolution.

[12] In view of the aforesaid, the petition is allowed. The

impugned order dated 27.03.2018 passed by the Special Secretary

in Revision Application No.40 of 2017 is quashed and set aside. The

petitioner is hereby held to be an agriculturist.

(A.Y. KOGJE, J) SIDDHARTH