Purviben Arvindbhai Parikh vs State Of Gujarat
2023 Latest Caselaw 497 Guj

       C/SCA/20085/2021                               ORDER DATED: 17/01/2023




              IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 20085 of 2021

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                          PURVIBEN ARVINDBHAI PARIKH
                                    Versus
                              STATE OF GUJARAT
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Appearance:
MR DEVEN PARIKH, SENIOR ADVOCATE WITH MR. NISHIT P
GANDHI(6946) for the Petitioner(s) No. 1
MR JAYNEEL PARIKH, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4,5,6
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                Date : 17/01/2023
                                 ORAL ORDER

1. Rule. Learned AGP waives service of notice of rule for the respondent-State.

2. In the present writ petition, the petitioner is seeking directions quashing and setting aside the order dated 30.11.2021 passed by the Special Secretary Revenue Department (SSRD) in Revision Application No.MVV/HKP/VDD/33, the order dated 18.11.2019 passed by the District Collector in RTS Appeal No.107 of 2019 and the order dated 05.11.2016 passed by the Deputy Collector in RTS Appeal No.60 of 2015 and a further direction is sought directing the respondent authorities to certify the entry nos.13272 and 13705 mutated in favour of the petitioner in the revenue record of the land bearing Block No.1121 of Mauje Bhayli, Taluka and District Vadodara.

3. The brief facts of the case are as under:-

3.1. It is the case of the petitioner that the land in question was

C/SCA/20085/2021 ORDER DATED: 17/01/2023

originally running in the name of one Mukundbhai Manubhai Patel and the petitioner purchased the said land from him by way of a registered sale deed on 31.01.2013. Pursuant to the aforesaid sale deed, a revenue entry no.13272 dated 02.02.2013 was mutated in the revenue record, however, the same was not certified on the ground that copy of the sale deed is not produced. Thereafter, another entry no.13705 dated 17.02.2014 was mutated qua the aforesaid sale transaction in favour of the petitioner and by the order dated 22.05.2014, the respondent-Circle Officer refused to certify the same on the ground that the petitioner has not produced the evidence with regard to he being an agriculturist.

3.2. The petitioner, thereafter, being aggrieved with the aforesaid action, preferred RTS Appeal No.16 of 2015 before the Deputy Collector, which came to be rejected vide order dated 05.11.2016. The petitioner, on being informed about the said order, a filed revision application before the District Collector, which was also rejected by the order dated 18.11.2019. Being aggrieved, the petitioner preferred a revision application before the SSRD, which also came to be rejected by the impugned order dated 30.11.2021 by observing that the petitioner does not appear to be the original agriculturist.

4. Learned Senior Advocate Mr.Deven Parikh has submitted that the respondent authorities cannot refuse to certify the entry of the registered sale deed by holding that the petitioner is non-agriculturist without undertaking necessary provisions under the provisions of The Gujarat Tenancy and Agricultural Land Act, 1948 (for short "the Act"). It is submitted that the petitioner is holding another agricultural land bearing revenue survey Nos.1142 and 1117, for which an entry no.11687 dated

C/SCA/20085/2021 ORDER DATED: 17/01/2023

09.05.2009 and an entry no.11669 dated 17.04.2009 are mutated and certified by observing that the petitioner is an agriculturist. Finally, while placing reliance on the judgment of this Court in the case of Chaital Rashmikant Bhatt and Anr. vs. State of Gujarat- Thro Secretary, Revenue Department(Appeal) and ors. passed in Special Civil Application No.14388 of 2015 decided vide judgment dated 19.04.2017 has held that there is no concept like "original agriculturist" and the impugned orders are required to be quashed and set aside.

5. In response to the aforesaid submissions, learned AGP Mr.Parikh has submitted that the impugned orders may not be interfered with since the petitioner in fact has not produced any document showing that he is the agriculturist and such status is premised on the sale deeds. It is submitted that the authority below has precisely held that the petitioner is not an agriculturist since he was required to produce some documents, which would indicate that he is an agriculturist and the entry nos.11687 and 11669 may not be considered in declaring the petitioner as an agriculturist. Thus, it is submitted that the impugned orders may not be interfered.

6. The aforenoted facts are not in dispute. After the purchase of the land in question by a registered sale deed, the respondent authorities have refused to certify the aforesaid entries being entry nos.13272 and 13705 mutated in the revenue record for the reason that the petitioner did not show anything to establish that he is an agriculturist. The impugned orders refer the expression "original agriculturist". It is specifically noted that since the petitioner is not an "original agriculturist", the said entries cannot be certified.

C/SCA/20085/2021 ORDER DATED: 17/01/2023

7. At this stage, it would be apposite to refer to the observations made by this Court in the case of Chaital Rashmikant Bhatt and Anr. (supra) in an analogous terminology "original agriculturist" used by the respondent authorities, the Coordinate Bench has observed thus:-

"15. In his impugned order, the second respondent has stated that the petitioners are not "original" agriculturists. This is one of the reasons why the entry of their Sale Deed is cancelled. Learned counsel for the petitioners has submitted that there is no concept of "original" agriculturist in the Tenancy Act.

16. To evaluate this contention certain provisions of the Tenancy Act may be referred to. Section-2(2) of the Tenancy Act defines "agriculturist" to mean "a person who cultivates land personally". As per Section-2(6) "to cultivate personally" means to cultivate land on one's own account (i) by one's own labour, or (ii) by the labour of any member of one's family, or (iii) under the personal supervision of oneself or any member of one's family, by hired labour or by servants on wages payable in cash or kind but not in crop share. From the above, it does appears that there is no concept of "original" agriculturist in the Tenancy Act. The second respondent appears to have introduced this novel concept on his own, without any legal basis or foundation, and that too under Rule-108(6) of the Rules, where he did not have any jurisdiction to adjudicate on this issue. An agriculturist would be one who fits the definition under the Tenancy Act and for the second respondent to hold that the petitioners are not "original"agriculturists is contrary to law."

It is specifically held that there is no concept of "original agriculturist" in the provisions of the Tenancy Act and the respondent authorities have introduced this novel concept on the role without any legal basis or foundation.

8. In the present case, it is an established fact that two entries have been referred hereinabove being entry nos.11687 and 11669, which are mutated in the revenue record in revenue survey nos.1142 and 1117, in favour of the petitioner and are also certified on 24.07.2009 by recording that the petitioner is an agriculturist and are not in any manner rescinded

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as on today and the same are in existence. It is also not in dispute and in fact it is admitted by the learned AGP that before holding a person as non-agriculturist or declaring him as non-agriculturist, the provisions of the Act are required to be followed and the status of such person is required to be determined by the procedure prescribed under the Act. It is not in dispute that no such proceedings as on date are initiated against the petitioner declaring him as a non-agriculturist.

9. Thus, it was not open for the respondent authorities to refuse to certify the revenue entries in the revenue records without there being any adjudication on the aspect of the petitioner being a non-agriculturist. The respondent authorities have to satisfy itself by undertaking necessary procedure by holding that the petitioner will not fall under Section 2(1)(2) of the Act, which defines agriculturist and in wake of such proceedings being undertaken, the respondent authorities cannot refuse to certify the entries of the land in question after the same are purchased by a registered sale deed.

10. Under the circumstances, the impugned action of the respondent authorities as well as the orders are required to be set aside and the same are quashed set aside. The respondent authorities are directed to certify the aforesaid entries within a period of eight weeks from the date of receipt of the order of this Court. Rule is made absolute. Direct service is permitted.

(A. S. SUPEHIA, J) ABHISHEK/77