Popatlal Pratapji Thakkar vs State Of Gujarat
2023 Latest Caselaw 384 Guj

     C/SCA/10694/2022                               ORDER DATED: 13/01/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 10694 of 2022
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                         POPATLAL PRATAPJI THAKKAR
                                   Versus
                             STATE OF GUJARAT
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Appearance:
MR. NISHIT P GANDHI(6946) for the Petitioner(s) No. 1,2,3,4,5,6,7
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1,2
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 CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
                  Date : 13/01/2023
                   ORAL ORDER

1. Rule. Learned AGP waives service of notice of rule on behalf of the respondent authorities.

2. While issuing notice vide order dated 17.06.2022, this Court has categorically recorded that the Mamlatdar has invoked his powers under the provisions of Section 84(C) of the Gujarat Tenancy and Agricultural Lands Act, 1948, (hereinafter referred as to as "the Act of 1948"). The Coordinate Bench has also recorded the submissions advanced by learned advocate Mr.Gandhi, and the judgment passed by the Division Bench of this in Letters Patent Appeal No.2436 of 2017 as well as judgment of the Apex Court in the case of State of Punjab Vs. Bhatinda District Cooperative Milk Producers Union Ltd., [2007 (11) SCC 363].

3. Learned advocate Mr.Gandhi, appearing for the petitioners has submitted that the entry no.1070 was posted in the revenue record, by which, the family partition in respect of land bearing Survey Nos.623 and 636 was recorded and as per the said family partition, the land came in share of Koli Shiva

C/SCA/10694/2022 ORDER DATED: 13/01/2023

Lala, who executed a registered sale deed in favour of Thakkar Gomtiben.

3.1 Learned advocate Mr.Gandhi, has further submitted that in the year 1996, entry No.2166 was posted on the basis of a registered sale deed in favour of Thakkar Gomtiben. Thereafter, entry No.2283 dated 27.10.1997 was posted entering the names of her heirs.

3.2 Learned advocate Mr.Gandhi, has further submitted that occasionally various entries have been mutated bringing the heirs on record, however, no steps are taken for all these years and almost after a period of 26 years, a notice dated 26.04.2022 has been issued by Mamlatdar under the provisions of Section 84(C) of the Act of 1948. He has submitted that the impugned show cause notice is de hors the settled proposition of law and the same may be set aside.

4. In response to the aforesaid submissions, learned Assistant Government Pleader has submitted that the impugned show-cause notice may not be set aside as the same only refers to the production of the relevant documents or sale deed from the petitioners. It is submitted by him that if such documents are produced, the Mamlatdar is supposed to pass the orders in accordance with law and hence, the proceedings may not be stalled at this stage by quashing and setting aside the impugned show-cause notice. Learned AGP has further submitted that the Mamlatdar, while exercise his powers under the provisions of section 84(C) of the Act of 1948, has questioned agriculturist status of the petitioners.

C/SCA/10694/2022 ORDER DATED: 13/01/2023

5. I have heard the learned advocates appearing for the respective parties and have also perused the relevant documents, which are available on record.

6. The facts, as narrated hereinabove, are not in dispute. The mutation of the entries as mentioned hereinabove since 1996 and thereafter also are not in dispute. The Mamlatdar, while exercise his powers under the provisions of section 84(C) of the Act of 1948 has questioned the agriculturist status of the petitioners. The entry have been mutated in the year 1996 after a period of 26 years and a notice dated 26.04.2022 is issued by him calling upon the petitioners to submit all the relevant documents question the agricultural status of the petitioners on the basis of sale deed, which has been entered in the year 1996 by the mother of petitioners.

7. At this stage, it would be apposite to refer to the observations made by this Court in the case of Bharatbhai Naranbhai Vegda Vs. State of Gujarat [2016 (2) GLR 1021], wherein this Court has held thus : -

"18. Section 75 of the ordinance provides for the enabling power of summary eviction by the Collector. There are no express powers for forfeiture by the State Government nor there is any express power for reentrustment of the land to the original owner. If the provisions of section 75 are considered with the provisions of section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948, whenever the legislature wanted, it provided for the entrustment of the land to the transferor or the forfeiture thereof by the State Government. Such is not the language used in section 75 of the Act.

19. We may leave at that without observing further, but in absence of any express language used under section 75 in contradistinction to the language used under section 84 C of the Bombay Tenancy and Agricultural Lands Act,

C/SCA/10694/2022 ORDER DATED: 13/01/2023

one possible view is that the notice would be ultra vires to the powers under section 75 of the ordinance.

20. In any case, as the notice could be said aswithout jurisdiction on the ground of delay and laches as per the well settled principles of law, we do not propose to express any final view on the aspect of section 75 of the Ordinance. In any case, examining the matter on the either of the situation, the action of issuance of show cause notice can be said to be without jurisdiction and hence, the petitioner would be justified in invoking the jurisdiction of this Court under Article 226 of the Constitution.

         21. If     the   matter     is    examined    in    light   of
         the observations     made     hereinabove,     the    impugned
         notice     deserves     to      be     quashed     and     set
         aside. Resultantly,      the     order    passed     by    the
         learned Single       Judge      cannot      be      sustained.

Hence, the order passed by the learned Single Judge is set aside. The impugned show cause notice dated 04.03.2011 (AnnexureA ) is quashed and set aside."

8. The Division Bench has categorically held that the exercise of powers under Section 84(C) of the Act, 1948 has to be exercised within a reasonable period and the notice issued by invoking such powers requires to be quashed and set aside.

9. Taking all the aforesaid facts cumulatively into consideration, this writ petition succeeds. The impugned show-cause notice dated 26.04.2022 is hereby quashed is set aside. All the consequential orders emanating from the aforesaid notice are also quashed and set aside. Rule is made absolute to the aforesaid extent.

Direct service is permitted.

(A. S. SUPEHIA, J)

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