Gujarat High Court
Kishanbhai Nanalal Shah vs State Of Gujarat on 8 August, 2023
Bench: Aniruddha P. Mayee
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 19382 of 2021
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KISHANBHAI NANALAL SHAH
Versus
STATE OF GUJARAT
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Appearance:
MR A B PATEL(7467) for the Petitioner(s) No. 1
MR ASHUTOSH DAVE AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 08/08/2023
ORAL ORDER
1. With the consent of learned advocates appearing for the
respective parties, the matter is taken up for final consideration
today. Hence, Rule, returnable forthwith. Learned AGP Mr. Ashutosh
Dave waives service of rule on behalf of the respondent State.
2. The present Special Civil Application is filed praying for the
following reliefs :-
"(A) This Hon'ble Court may be pleased to issue an
appropriate writ, order or direction in the nature of writ
of mandamus by quashing and setting aside the
impugned order dated 04/12/2021 passed by the Ld.
Secretary, Revenue Department (Dispute), Ahmedabad
in MVV/HKP/KHD/185/2021 at ANNEXURE-A as well as
impugned order dated 20/07/2021 passed by the Ld.
Collector, Kheda at Nadiad in
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RTS/SUOMOTO/KHD/02/2020 at ANNEXURE-B in the
interest of justice.
(B) Pending admission, hearing & final disposal of this
petition, the implementation, operation of the impugned
order dated 04/12/2021 passed by the Ld. Secretary,
Revenue Department (Dispute), Ahmedabad in MVV/HKP/
KHD/185/2021 at ANNEXURE-A as well as impugned
order dated 20/07/2021 passed by the Ld. Collector.
Kheda at Nadiad in RTS/SUOMOTO/KHD/02/2020 at
ANNEXURE-B may kindly be ordered to be stayed and
further be pleased to direct the respondent to maintain
status quo qua the status of the petitioner as non-
agriculturist.
(C) This Hon'ble Court may be pleased to restore the
mutation entry no.6584,1614 and 2489 in the revenue
records of the subject land in the interest of justice.
(D) This Hon'ble Court may be pleased to pass such
other further relief in favor of the petitioner as deemed
just and proper in the facts and circumstances of the
case."
3. Learned advocate Mr. Akash B. Patel for the petitioner submits
that the petitioner is an agriculturist of the State of Rajasthan and
the certificate of agriculturist has also been produced before the
revenue authorities. Learned advocate submits that mutation entry
No.1614 dated 05.09.1995 in respect of survey/block No.2523 at
Mouje Pij, Taluka Vaso and mutation entry No.2489 dated
22.11.2001 in respect of survey/block No.2524 at Mouje Pij, Taluka
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Vaso and mutation entry No.6584 dated 06.09.2008 in respect of
survey/block No.541-1 at Mouje Tundel, Taluka Nadiad (Rural) are
owned by the petitioner and the entries are duly certified also. He
submits that by suo motu revision in the year 2020, the learned
Collector, Kheda has taken the said entries in revision holding that
the petitioner is not an agriculturist of the State of Gujarat. He
submits that in the said proceedings by order dated 20.07.2021, the
entries have been set aside and the learned Collector has directed
that Section 84C proceedings under the Tenancy Act be initiated. He
submits that the petitioner also preferred a Revision Application
before the learned Special Secretary Revenue Department and by
order dated 04.12.2021, the learned Special Secretary Revenue
Department has rejected the application of the petitioner and
upheld the order passed by the learned Collector. Learned advocate
submits that the issue whether the agriculturist from other State
can also hold the land in the State of Gujarat has now been settled
by the Full Bench of this Court in case of Preethisingh
Mukandsingh Shikh vs. State of Gujarat reported in 2012(2)
GLR 1608. He submits that in view thereof, the present Special
Civil Application be allowed and the orders of the learned Collector
and the learned Special Secretary Revenue Department be quashed
and set aside.
4. Per contra, learned Assistant Government Pleader
Mr. Ashutosh Dave for the respondent State submits that the said
issue has not been concluded as the civil appeals against the
judgment of the Full Bench are pending adjudication before the
Hon'ble Supreme Court. He submits that in view thereof, the issue
has not attained finality yet. He, therefore, submits that the present
Special Civil Application should not be entertained.
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5. Heard learned advocates for the respective parties and
perused the documents on record.
6. The Full Bench of this Court in Preethisingh Mukandsingh
Shikh (supra) has held as follows :-
"5. Therefore, the only question that arises for
determination in these matters is whether a person who
does not own agricultural land within the State of
Gujarat can be treated to be a non-agriculturist within
the meaning of the Act simply because he does not
cultivate any agricultural land within the State of Gujarat
and on that ground, the purchase of any agricultural
land by such a person will be hit by the provisions
contained in section 89 of the Act.
Xxx xxx xxx xxx
12. Therefore, in order to bring a case out of the rigour
of section 89 of the Act, the transfer must be made to an
agriculturist and even if he is an agriculturist, such
agriculturist must not hold land more than three family
holdings as indicated therein within the State of Gujarat.
13. If we go to the definition of 'agriculturist' it simply
means a person who cultivates land personally and
there is no restriction that he must be a person who
cultivates land personally at least some land in the State
of Gujarat.
14. We further find that according to Gujarat Land
ceiling Act, 1960 which governs all agricultural lands in
the State of Gujarat, there is a similar definition of
'agriculturist' without any restriction of personal
cultivation of land only in the State of Gujarat, and
according to section 6 of the said Ceiling Act, which has
an overriding effect over all law for the time being in
force, no person should be entitled to hold whether as
owner or tenant or partly as owner and partly as tenant
land in excess of the ceiling area and while determining
such ceiling area, any land held by an agriculturist in
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any other part of the India outside the State, not
exceeding the maximum area of land, which such
person is entitled to hold in such other part of India
under any law, if any, relating to ceiling on land, used or
capable of being used for agricultural purposes, shall be
excluded from the ceiling area in excess of which a
person is not entitled to hold land under this section.
15. The above provision of the Ceiling Act enacted in the
year 1960 makes it abundantly clear that whatever was
the intention of the legislature in the past, from the
enactment of the above provision, it has made its
intention abundantly clear that the land held by an
agriculturist in other State should also be taken into
consideration as an agricultural land held by such
agriculturist while determining the ceiling limit of land in
Gujarat. In other words, according to the said legislation,
for the purpose of better management of agricultural
lands in the State of Gujarat, no agriculturist in this
State will be permitted to hold any small fraction of
agricultural land if the total agricultural land held by
such agriculturist exceeds the ceiling limit, be any part
of such land is situated in the State of Gujarat or in any
other States, as according to the legislature of this
State, an agriculturist is incapable of giving due care
and proper superintendence over his agricultural land in
excess of such limit.
16. We, therefore, find substance in the contention of
the learned counsel appearing for the appellants that
under the terms of the Act, the term 'agriculturist' is a
'qualification' and that can be attained by any person in
India who cultivates agricultural land personally as
indicated in the Act if such land is situated in any part of
India. In the absence of specific provisions in the Act
indicating its clear intention, it is preposterous to
suggest that the legislature has recognized his
agricultural land held as agriculturist in other States but
has not recognized him as agriculturist even though he
is recognized as such by a different State.
17. We, thus, find substance in the contention of the
learned counsel for the appellants that it was never the
intention of the Gujarat legislature to prohibit the
recognized agriculturist of any other State to hold any
land in the State of Gujarat unless he was holding such
land in this State and if that was the intention, in that
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event, the legislature would not have included his
holding as such agriculturist in other States for the
purpose of calculating the ceiling area.
18. Moreover, in the entire Act, there is no indication
that a person can acquire any agricultural land in
Gujarat only if he is already cultivating some of the
lands in Gujarat. The aforesaid idea is absurd as would
appear from the fact that even under the provisions of
the Act, a person can become an 'agriculturist' even by
way of succession as heir of an agriculturist. Therefore,
if a cultivator in Gujarat marries a person who is not an
agriculturist in a different State, on the death of the
former, the latter will definitely acquire interest in the
land in Gujarat.
19. We are also not impressed by the submissions of the
learned Advocate General that as the State has no
sufficient machinery to verify the genuineness of the
certificates given by the other States as regards the
status of a person as agriculturist in those States, the
purpose of the Act will be frustrated. In our opinion,
when the State Government is prepared to accept the
certificate granted by other States as regards the
quantum of agricultural land held by an agriculturist in
other States as genuine for the purpose of ceiling, there
is no reason why such certificate as regards their status
as agriculturist cannot be relied upon.
Xxx xxx xxx xxx
22. We fail to appreciate how the said principles can be
of any help to the State in this case. Mr. Trivedi tried to
rather impress upon us that we should read in the
statute "in the State of Gujarat" in the definition of
'agriculturist" and "to cultivate personally". The
aforesaid decision rather goes against his contention. On
the other hand, if we take into consideration the
provisions of the Land Ceiling Act, the intention of the
legislature was apparent that it recognized the land held
by an agriculturist in other State. Therefore, the above
decision is of no avail to the State.
Xxx xxx xxx xxx
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27. In the case before us, we have already pointed out
that if we take into consideration the provisions of the
Land Ceiling Act enacted by the legislature, it is clear
that its intention was to recognize the agriculturists of
the other State as an agriculturist and also to take into
consideration the land belonging to such agriculturist in
the other State. It was never the intention of the
legislature only to take into consideration the land of
such agriculturist situated in a different state but not to
consider him as an agriculturist in this State. Therefore,
the above decision also does not help Mr. Trivedi in any
way.
Xxx xxx xxx xxx
34. So far as the decision of the Bombay High Court in
the case of Tukaram Savalaram Panasare v.
Narayan Balkrishna Dolas, reported in AIR 1952
Bom. 54, we are of the view that the facts of the said
case are quite different from the one involved in the
present case. In that case, it was held by Chief Justice
Chagla, that Legislature was only interested in those
people who were cultivating land within its territorial
jurisdiction and to whom relief was to be given because
they were indebted by acting as such agriculturists. In
the case before us also, Gujarat State Legislature was
concerned with the person who intends to hold
agricultural land and object of the Act is to see that only
agriculturist by profession whether within the State of
Gujarat or in any part of India is holding the land in the
State of Gujarat. Thus, the said decision cannot be of
any help to the State respondent. We are quite
conscious that the above view of Chagla, C.J. has been
approved by the Supreme Court in the case of Tatoba
Bhau Savagave v. V.D. Deshpande, reported in
AIR 2001 SC 4029, referred to by Mr. Trivedi.
Xxx xxx xxx xxx
39. We, therefore, find substance in the contention of
the appellants that a person who does not own
agricultural land within the State of Gujarat at the time
of purchase cannot be treated to be a non-agriculturist
within the meaning of the Act simply because he does
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not cultivate any agricultural land within the State of
Gujarat and on that ground alone, the purchase of any
agricultural land by such a person will not be hit by the
provisions contained in section 89 of the Act.
40. We, consequently, set aside the decision of the
District Collector, Kutch who issued instructions to the
concerned Mamlatdar to freeze the 'khedut
khatas' [agricultural accounts] of the appellants until
further instructions on the ground that the appellants
are agriculturists belonging to other States. We also
quash the circular No. TNC/1073/58184/J of the Revenue
Department of the Government of Gujarat dated
4th April 1973 wherein it was indicated that any sale of
land made to any non-agriculturists in Gujarat on the
strength of his status as agriculturist in any other State
outside Gujarat would attract the provisions contained in
section 63 of the Bombay Tenancy & Agricultural Lands
Act, 1948 and section 54 of the Saurashtra Tenancy and
Garkhed Settlement Ordinance and section 89 of the
Bombay Tenancy and Agricultural Land [Vidarba Region
and Kutch Area) Act, 1958 on the strength of certificates
about their status as agriculturists in other States."
7. The aforesaid decision of the Full Bench of this Court has been
challenged by the State Government by filing Special Leave Petition
before the Hon'ble Supreme Court. The said petition has been
admitted, but the aforesaid judgment has not been stayed. Hence,
the law as laid down by the Full Bench of this Court is of binding
nature.
8. The aforesaid legal position has been followed by the
Coordinate Benches of this Court in various judgments.
9. In the present case, another issue which arises for
consideration is whether, after a period ranging from 12 to 25 years,
the Collector could exercise the power for suo motu revision to set
aside the mutation entry. Again, it is well settled law by catena of
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decisions of this Court as well as the Hon'ble Supreme Court that
suo motu revisional powers should be exercised within reasonable
period. In the present case, the action of the Collector is in the teeth
of the law as laid down by this Court as well as the Hon'ble Supreme
Court. In view thereof also, the action of the respondent Collector
cannot be sustained in law.
10. In view of aforesaid observations, the reliefs, as prayed for in
the present Special Civil Application, deserve to be granted. The
Special Civil Application is accordingly allowed. The order dated
04/12/2021 passed by the Ld. Secretary, Revenue Department
(Dispute), Ahmedabad in MVV/HKP/KHD/185/2021 as well as order
dated 20/07/2021 passed by the Ld. Collector. Kheda at Nadiad in
RTS/SUOMOTO/KHD/02/2020 are quashed and set aside. The
respondent authority shall restore the mutation entries in question
within a period of four weeks from the date of receipt of this order.
Rule is made absolute.
No order as to costs.
(ANIRUDDHA P. MAYEE, J.)
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