Hurbaiben Ibhrambhai Lakha vs State Of Gujarat
2023 Latest Caselaw 547 Guj

     C/SCA/16401/2019                            JUDGMENT DATED: 18/01/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 16401 of 2019

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA                                 Sd/-
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1     Whether Reporters of Local Papers may be allowed
      to see the judgment ?                                           NO

2     To be referred to the Reporter or not ?                        YES

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

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

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                        HURBAIBEN IBHRAMBHAI LAKHA
                                   Versus
                            STATE OF GUJARAT
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Appearance:
MR AMAR D MITHANI(484) for the Petitioner(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4,5
UNSERVED REFUSED (N) for the Respondent(s) No. 6,7,8
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     CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                             Date : 18/01/2023
                             ORAL JUDGMENT

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

2. The present writ petition has been filed seeking directions for quashing and setting aside the order dated 23.07.2019 passed by the respondent no.1 in Revision Application No.MVV/HKP/GIR/17 of 2019, order of the respondent no.2-Collector, dated 14/15.05.2019 passed in RRT/Revision Case No.25 of 2017, order passed by the Deputy

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Collector, Una, dated 20.04.2016 passed in RRT Appeal No.146 of 2016, notice of the Mamlatdar, Kodinar dated 03.06.2019 and further seeking a direction to certify the entry no.1963 of the registered sale deed.

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

3.1. The petitioner is a widow of late Shri Ibrahimbhai Osman Taiyab. She has purchased the land bearing Survey No.139/P2 of Village: Pavti, Taluka: Kodinar, District: Gir Somnath, admeasuring 0-72-84 Hec.-Are- sq.mtrs., by registered sale deed bearing Registration No.1122, dated 22.07.2016, from the Respondent Nos. 6 to 8 herein and for which, Entry No.1963 was posted in the Revenue Record on 22.07.2016, which was refused to be certified by the Deputy Mamlatdar, Kodinar, on the purported ground that the petitioner is not an agriculturist.

3.2. It is the case of the petitioner that since 22.07.2016, the petitioner is the owner and occupier and cultivating the subject matter land bearing Survey No.139/P2 admeasuring 0-72-84 Hec.-Are-sq.mtrs. of Village Pavti, Taluka Kodinar, District Gir Somnath.

3.3. The petitioner's father-in-law predecessor, i.e. Shri Osman Taiyab was holding agricultural lands bearing Survey No.167 paiki, 152 paiki, 161 and 141 paiki of village: Achhidra, Taluka: Maliya Hatina, which he has derived under the family arrangement, for which Entry No.177, dated 10.01.1966 was recorded and certified on 15.02.1966.

3.4. Family of the said Shri Taiyab was holding agricultural lands of Survey Nos.59, 152, 161, 141, 168, 58/1, 167 i. 7 different survey numbers of Village: Achhidra, Taluka: Kodinar, for which Entry No.10,

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dated 20.01.1967 (approx.) was certified in the Revenue Record. In support of the claim of the petitioner of being an agriculturist, reliance is placed on the different survey numbers of village Achhidra, Taluka Kodinar, for which the entry no.10 dated 20.01.1967 was certified in the revenue record.

3.5. As per the entry no.128 dated 01.04.1958, the land bearing survey nos.59, 152, 161, 141, 168, 58/1 and 167, was held by Sindhi Noormohmmad Taiyab and Osman Taiyab and minor, which was mortgage on 29.01.1958 of village Achhidra.

3.6. Entry No.149 dated 13.05.1961 records the death of Shri Ismail Taiyab on 06.11.1960 and whereby, the names of successors were reflected in the entry.

3.7. Shri Osman Taiyab used to obtain agricultural crop loan from the Co.Op. Society and on discharge of such debt of Acchidra Vividh Karyakari Sahakari Mandali Ltd. for discharge of such mortgage Entry No.558/158 dated 11.07.1980 was certified.

3.8. Shri Osman Taiyab sold land bearing Survey No.141 paiki of Acchidra on 22.11.1979 to Shri Aher Jesa by a registered sale deed, for which Entry No.561 was recorded on 05.06.1980 and certified 11.07.1980. Similarly, Osman Taiyab sold land bearing Survey No.167 paiki of Acchidra to one Shri Parbat Hira, for which Entry No.559 was recorded on 05.06.1980 and certified 11.07.1980.

3.9. The aforesaid entry of the sale could certify on 11.07.1980, prior thereto, on 04.12.1979, i.e. 12th day of the registered sale deed dated

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22.11.1979 (22.11.1979 to 04.12.1979), land bearing Survey No.101 paiki, ad-measuring 2 A. 40 G. of Village: Pavti, Taluka: Kodinar, was purchased by Ibraham Osman from Shri Abdulla Noormohmmad and for which Entry No.540 was recorded on 21.03.1982 and certified on 20.08.1982.

3.10. On 19.3.1982 by a registered sale-deed No.396, the husband of the petitioner, Shri Ibraham Osman purchased land bearing Survey No.101/1 paiki, ad-measuring 1 A. 26 G. from Shri Abdulla Noormohmmad and for which Entry No.556, in the Revenue Record of Village; Pavti was recorded on 16.06.1982 and was certified on 25.02.1983.

3.11. For the lands purchased by Ibrahmi Osman on 04.12.1979, and 19.03.1982, being Survey No.101 paiki of Village: Pavt, Entry No.696, dated 29.03.1988, of lien of Arnej Seva Sahakri Ltd. was recorded, wherein the name of Shri Ibraham Osman was recorded at Serial No. 22. The debt/lien Rs.80,000/- of Arnej Seva Sahkari Mandli Ltd. was taken by Shri Ibrahim Osman and for which, Entry No.866 was recorded on 17.01.1995 reflecting the lien.

3.12. Thereafter, Shri Irbaham Osman has passed away, who was the husband of the petitioner herein and whereby, vide Entry No.894, dated 05.07.1996, the name of the petitioner as an heir along with others were recorded and the said entry was duly certified on 31.12.1996. Thus, the agricultural lands of Survey No.101 paiki two parcels came to the petitioner as a successor heir on the death of her husband, in the year 1996.

3.13. The petitioner's land bearing 101/1 of Village: Pavti was

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exchanged with the neighboring agriculturist Shri Ebha Lakha Ram and for which Entry No.1424 dated 08.08.2008 was certified with respect to registered deed dated 22.05.1995.

3.14. The petitioner and other family members obtained financial assistance of Rs.5 lacs from Shri Pavti Seva Sahakari Mandali Ltd. by mortgaging their agricultural lands bearing Survey Nos.101/1/P6/P1 and 101/1/P7 of Village: Pavti, for which Entry No.1559, dated 30.6.2010 was recorded.

3.15. Family of Shri Ibrahim Osman Taiyab, since last 50 years, is holding various agricultural lands and the petitioner succeeded to the same in the year 1996 when her husband, Shri Ibrahim Osman passed away and Entry No.894 was certified.

3.16. It is the case of the petitioner that despite the aforesaid holding of lands and mutation of entries with regard to agricultural land, the petitioner registered a sale deed dated 22.07.2016 and the corresponding entry no.1963 was not certified by the Deputy Mamlatdar, Kodinar. Hence, the petitioner approached the Deputy Collector, Una under the provisions of Rule 108 of the Gujarat Land Revenue Rules by way of filing an appeal, which was rejected by the impugned order dated 20.04.2017. Against the aforesaid order of the Deputy Collector, the petitioner approached the Collector, Gir Somnath by way of filing RRT/Revision Case No.25 of 2017, who, while passing the impugned order dated 14.05.2019, further directed that the possession of the land being taken over from the petitioner. Against the said order, the petitioner further preferred Revision Application No.MVV/HKP/GIR/17 of 2019

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before the respondent no.1, which was also rejected by the impugned order dated 23.07.2019.

4. Learned advocate Mr.Mithani appearing for the petitioner has submitted that the impugned orders passed by the authorities are absolutely de hors the provisions of law and the fact that the petitioner's late husband was holding the agricultural lands of various survey numbers from 1957 to till 1999 continuously of village Achhidra. It is submitted that for 12 days only, the husband of the petitioner was not holding the agricultural land i.e. between 22.11.1979 to 04.12.1979 and thereafter, all throughout, the husband of the petitioner has been continuously possessing the agricultural lands and on his death since 1996 and even today, the petitioner is holding the agricultural land and despite the aforesaid fact, the entry no.1963 of the registered sale deed 22.07.2016 has been refused and not certified. It is submitted that the impugned orders deserve to be quashed and set aside since after a period of 37 years, for the proceedings of another land, the authorities have not passed the aforesaid order.

4.1. Further, it is submitted that, while passing the impugned order by the Collector in the revision application filed by the petitioner, further directions are issued to dispossess the petitioner from the land in question by observing that the transaction is in breach of Section 54 of the Saurashtra Gharkhed, Tenancy Settlement and Agricultural Lands Ordinance, 1949 (for short "the ordinance 1949"). It is submitted that the impugned order dated 14.05.2019, is passed without application of mind since the subject land falls in Kodinar Taluka and the provisions of the Gujarat Tenancy and Agricultural Lands Act is applicable in spite

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thereof, the Collector has directed and observed that applicability of the Ordinance, 1949. Thus, it is submitted that the Collector has cross utilized his powers while refusing to mutate the entries, which is impermissible under law. Thus, it is submitted that the impugned orders are required to be set aside.

5. The aforesaid facts are not in dispute. The entire proceedings emanate from the action of the respondent-authorities questioning the agricultural status of the petitioner and her husband. The NA permission, which was sought by the petitioner, has been denied to her by the impugned orders. It is also noticed that by the impugned order dated 14.05.2019, the Collector has issued directions to dispossess the petitioner from the land in question by observing that the transaction is in breach of Section 54 of the Ordinance, 1949. Thus, on an issue for obtaining the NA permission, the Collector has further exercised its power by observing that the land in question has been transferred in breach of the provisions of the Ordinance, 1949.

6. At this stage, it would be apposite to refer to the decision of this Court in the case of Laxmi Associates vs. Collector,Vadodara, 2006 (3) GLR 1982. This Court has held thus:-

"7. Having heard the learned Counsel for both the sides and looking to the facts and circumstances of the case, in my view, the order dated 21st November, 2005 issued by Collector, Vadodara as well as order dated 7th March, 2006 passed by the Collector, Vadodara, - which is taken on the record of the case, upon tendering the same by the petitioner, deserve to be quashed and set aside for the following facts and reasons :

(i) It is not appreciated by the Collector, Vadodara that while exercising powers under Bombay Land Revenue Code, 1879, he has also exercised the powers under the

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provisions of the Act, 1947 for the alleged breach of the provisions of the Act, 1947.

(ii) Looking to the aforesaid two orders passed by the the Collector, Vadodara it seems that though, never any doubt raised by any concerned authority as to the validity of the sale deed and the transaction entered into between the petitioner and predecessor-in-title under the Act, 1947, and therefore, Collector, Vadodara while exercising the powers under Section 65 of the Code, 1879 ought not to have presumed alleged breach of the Act, 1947.

(iii) Unless and until adequate opportunity of hearing is given to the petitioner under Act, 1947 by issuing necessary notice, the breach as per Section 9 of the Act, 1947 cannot be considered while exercising powers under Section 65 of the Code, 1879. Both Acts namely Bombay Land Revenue Code, 1879 and the Bombay Prevention of Fragmentation and Consolidation of Holding Act, 1947 are distinct and separate the provisions for making them applicable. The authority before passing the order under one Act (in the present case the Code, 1879) some times goes into depth and tries to search out breach of another Act (in present case, breach of provisions of Act, 1947), and thereafter, they all are presuming the breach of another Act (which is generally without giving any notice under another Act and is generally without giving any opportunity of being heard to the applicant), and thereafter, they are refusing to exercise their power (which is generally coupled with duty) under the Act under which the application is preferred. Here in this case, the application was under Section 65 of Bombay Land Revenue Code, 1879 for getting N.A. use permission and while deciding that application, Collector, Vadodara, firstly found out breach of the Act, 1947, and thereafter, without giving any opportunity, presumed such and refused to grant N.A. use permission under Section 65 of the Code, 1879. This action of the Collector, Vadodara is not permissible under the rule of law. He cannot presume the breach of another law (i.e. The Act, 1947), without giving notice and without hearing the applicant (of application under Section 65 of the Code, 1879).

It is possible that the same officer (here, he is Collector) can be an authority under several revenue laws. But that permits not, the usage of powers, in combination of any revenue laws. Cross-utilisation of power by revenue officer, under different laws is not permitted. When the

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application under Bombay Land Revenue Code is given by the applicant, the revenue officer, has to decide it after applying provisions of that very Code, 1879, but while deciding the application under B.L.R. Code, the officer, cannot exercise powers under the Act, 1947, without giving notice under the Act, 1947 and without giving opportunity of being heard to the applicant. While exercising the powers under one Act (in the present case, provisions of Code, 1879), exercise of powers conferred under another Act (i.e. The Act, 1947) is not permitted."

Thus, as per the well settled proposition of law and the observations made by this Court, the Collector could not have cross utilized his power while examining the application of the petitioner seeking NA permission. The further direction to dispossess the applicant from the land in question is also beyond jurisdiction of the Collector. It is also not in dispute that the respondent authorities have questioned the status of the husband of the petitioner being an agriculturist between 22.11.1979 to 04.12.1979 that too after his death, after a period of almost 37 years. It is also not in dispute that the petitioner, after the death of her husband since 1996, is holding the agricultural land and hence, the respondent authorities could not have refused to certify the entry no.1963 mutated vide registered sale deed dated 22.07.2016. It was not open for the respondent authorities to question the legality and validity of the old transactions and registered the entry after the passage of number of years. The respondent authorities, during the lifetime of the husband of the petitioner, has never questioned the status of being an agriculturist and hence, as per the settled proposition of law, the Collector could not have exercised the power after so many years.

7. The Division Bench in the case of Chandulal Gordhandas Ranodriya & Ors. vs State of Gujarat & Ors., 2013 (2) GLR 1788, has

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held thus:-

"It must be fairly said that if the statute does not prescribe time limit for exercise of revisional powers, it does not mean that such powers can be exercised at any point of time even if there is a breach of Section 43 of the Act, which is a provision which relates to a new tenure land, rather it should be exercised within a reasonable period of time. It is so because the law does not expect a settled thing to be unsettled after a long lapse of time. It is clear from various judgments of the Supreme Court that where a statutory provision for exercise of any suo motu powers of revision does not prescribe any limitation, the powers must be exercised within a reasonable period of time even in the case of transaction which would be termed as void transaction."

The Division Bench has held that even if the status does not prescribe time limit for exercise of revisional powers, it does not mean that such powers can be exercised at any point of time. Such powers can be exercised within a reasonable period of time even in case the case of transaction, which would be termed as void transaction.

8. Hence, the writ petition succeeds. The impugned orders order dated 23.07.2019 passed by the respondent no.1 in Revision Application No.MVV/HKP/GIR/17 of 2019, order of the respondent no.2-Collector, dated 14/15.05.2019 passed in RRT/Revision Case No.25 of 2017, order passed by the Deputy Collector, Una, dated 20.04.2016 passed in RRT Appeal No.146 of 2016, notice of the Mamlatdar, Kodinar dated 03.06.2019 are hereby quashed and set aside. The respondent authorities are directed to certify the entry no.1963 of the registered sale deed dated 22.07.2016. Rule is made absolute.

Sd/-

(A. S. SUPEHIA, J) ABHISHEK/42