Patel Hirabhai Dhanjibhai vs Patel Madhavlal Kacharabhai ...
2023 Latest Caselaw 7422 Guj

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    C/SCA/41/2007                                    CAV JUDGMENT DATED: 07/10/2023

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                    R/SPECIAL CIVIL APPLICATION NO. 41 of 2007


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2 To be referred to the Reporter or not ?

3 Whether their Lordships wish to see the fair copy of the judgment ?

4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== PATEL HIRABHAI DHANJIBHAI Versus PATEL MADHAVLAL KACHARABHAI SINCE DECD. THRO HEIRS & L.RS.

& 2 other(s) ========================================================== Appearance:

MR RASESH H PARIKH(3862) for the Petitioner(s) No. 1 MR.HEMANG H PARIKH(2628) for the Petitioner(s) No. 1

MR NIKUNJ KANARA, AGP for the Respondent(s) No. 2,3 MR MP SHAH(2418) for the Respondent(s) No. 1.1,1.3,1.4,1.5,1.6,1.7 MR ROBIN PRASAD WITH MR VIKRAM J THAKOR(2221) for the Respondent(s) No. 1.2 MS. KRUTI M SHAH(2428) for the Respondent(s) No. 1.1,1.3,1.4,1.5,1.6,1.7 ==========================================================

CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

Date : 07/10/2023

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CAV JUDGMENT

1. Heard learned Senior Advocate Mr. H.M.

Parikh with learned advocate Mr. Rashesh

H. Parikh for the petitioner and learned

advocate Mr. Robin Prasad for learned

advocate Mr. Vikram J. Thakore for

respondent nos. 1 and 2 and learned

Assistant Government Pleader Mr. Nikunj

Kanara for the respondent State.

2. By this petition under Article 226 of

the Constitution of India, the petitioner

has challenged the order dated 19.07.2006

passed by Gujarat Revenue Tribunal (For

short "the Tribunal") in Revision

Application TENBA No.52/2004 and further

prayed to restore order dated 24.12.2002

passed by Mamlatdar and ALT, Mansa which

was confirmed by order dated 22.01.2004

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passed by the Deputy Collector (Appeals),

Gandhinagar in Appeal No.30/2003.

3. It is the case of the petitioner that

land bearing Survey No.1598 situated in

the Sim of village Mansa, District

Gandhinagar, admeasuring 7 acres and 16

gunthas was belonging to late Madhavlal

Kacharabhai Patel and his brother.

Thereafter said land was partitioned and

after partition land admeasuring 1 acre 34

gunthas had come to the share of late

Madhavlal Kachrabhai Patel.

4. It is the case of the petitioner that

the petitioner was cultivating the land

since 1991 and name of the petitioner was

mutated in the revenue record in the year

1993-1994 as tenant-ganotia and thereafter

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by a registered sale deed dated

05.04.1995, the petitioner purchased the

land admeasuring 1 acre and 34 gunthas

from late Madhavlal Patel and necessary

mutation entry was also made in the

revenue record to that effect.

5. It is the case of the petitioner that

the petitioner moved an application before

the Mamlatdar and ALT, Vijapur as the

petitioner projected himself as a tenant

for cultivation of the said land.

Mamlatdar and ALT, Vijapur by order dated

23.05.1995 confirmed the sale in favour of

the petitioner in the capacity of tenant.

6. Thereafter, suo motu proceedings under

section 76A of the Gujarat Tenancy and

Agricultural Lands Act, 1948 (hereinafter

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referred to as "the Tenancy Act") was

initiated by the Deputy Collector, Mansa

being Revenue Case No.112/1996.

7. Deputy Collector, Mansa remanded the

matter back to the Mamlatdar and ALT,

Vijapur who by order dated 07.03.1998 held

that the transfer was illegal and further

directed to initiate proceedings under

section 63 of the Tenancy Act.

8. The petitioner being aggrieved by

order dated 07.03.1998 preferred Tenancy

Appeal No.80/1998 before the Deputy

Collector, Gandhinagar which was also

dismissed by order dated 10.11.1998.

9. The petitioner, thereafter, challenged

the order passed by the Deputy Collector

before the Tribunal in Revision

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Application TENBA No.484/1998.

10. Tribunal by order dated 29.11.2000

allowed the Revision Application setting

aside the order passed by both the

authorities below, remanding the matter

back to Mamlatdar and ALT, Mansa.

11. Mamlatdar and ALT, Mansa in the remand

case heard the matter and by judgment and

order dated 24.12.2002 restored the order

dated 23.05.1995 whereby sale in favour of

the petitioner was confirmed.

12. Late Madhavlal Patel being aggrieved

by order dated 24.12.2002 preferred Appeal

No.30/2003 before the Deputy Collector

(Appeals), Gandhinagar. Deputy Collector

(Appeals) by order dated 22.01.2004

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dismissed the appeal.

13. Thereafter, late Madhavlal Patel

preferred Revision Application being TENBA

No. 52/2004 before the Tribunal.

14. The Tribunal by impugned order dated

19.07.2006 allowed the Revision

Application holding that the petitioner as

a non-agriculturist was trying to become

an agriculturist.

15. The petitioner being aggrieved by the

order of the Tribunal passed on 19.07.2006

has preferred this petition.

16. Learned Senior Advocate Mr. H.M.

Parikh with learned advocate Mr. Rashesh

Parikh for the petitioner submitted that

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it is not in dispute that the petitioner

was cultivating the land in question prior

to the year 1993-1994 and his name was

mutated in the revenue record. The

petitioner was declared as a tenant of the

land in question by the order passed by

the Circle Officer dated 3.01.1995 in

Khed-hak case No.1/94-95 and necessary

mutation entry No.13185 dated 21.02.1995

was certified which has achieved finality.

16.1) Learned Senior Advocate Mr. Parikh

referred to and relied upon circular dated

30.10.1971 issued by Government of

Gujarat, Revenue Department, which

empowers Mamlatdar/Mahalkari including the

Circle Officer and Avalkarkun to decide

the matter about a person cultivating the

land as a tenant or otherwise. It was

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therefore, submitted that once the

petitioner was held to be a tenant by the

Circle Officer who was empowered and

authorised to declare a person cultivating

agriculture land as tenant and necessary

entry having been mutated in the revenue

record, Tribunal could not have come to

the conclusion that the petitioner is not

an agriculturist and was not entitled to

purchase the agricultural land from the

landowner. It was submitted that it was

between the landowner and the tenant and

therefore, such registered sale deed could

not have been declared as null and void.

16.2) Learned Senior Advocate Mr.

Parikh heavily relied upon the order dated

3.01.1995 placed on record along with

additional affidavit of the petitioner. It

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was submitted that the Tribunal has failed

to consider the material evidence of the

order of Circle Officer which is referred

to and relied upon by the Mamlatdar and

ALT as well as Deputy Collector while

restoring order dated 23.05.1995.

16.3) It was further submitted that the

Tribunal has also failed to discuss with

regard to the status of the petitioner as

an agriculturist inasmuch as unless and

until the order passed by the Circle

Officer declaring the petitioner as tenant

is not set aside by any competent

authority, status of the petitioner would

continue as an agriculturist and the same

could not have been questioned while

considering the validity of sale deed

executed by the landowner in favour of the

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petitioner.

16.4) It was submitted that the Tribunal

has exceeded its jurisdiction by

interfering with concurrent findings of

fact recorded by Mamlatdar and ALT as well

as Deputy Collector (Appeals) without

there being any contrary evidence which

has otherwise attained finality. It was

submitted that the Tribunal has failed to

consider the undisputed fact that the

petitioner was cultivating the land prior

to two years from the date of sale and has

been declared as an agriculturist by

Circle Officer accordingly.

16.5) Learned Senior Advocate Mr. Parikh

has also filed additional affidavit dated

27.02.2023 of one Dineshkumar Hirabhai

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Patel who is son of the petitioner stating

on oath that Civil Suit filed by the

petitioner against late Madhavbhai

Kachrabhai Patel being Regular Civil Suit

No.5/2001 for declaration and injunction

was withdrawn on 05.04.2003 in view of

interim order granted in favour of the

petitioner and on assurance given by the

defendant that he would not disturb the

possession. It was further stated in the

affidavit that no litigation is pending

between the parties in the Civil Court.

17. On the other hand, learned Assistant

Government Pleader Mr. Nikunj Kanara for

the respondent State and learned advocate

Mr. Robin Prasad for learned advocate Mr.

Vikram Thakor for respondent nos. 1 and 2

were heard and both the learned advocates

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supported the order of the Tribunal

contending that the petitioner has adopted

a modus operandi to become an

agriculturist though the petitioner was a

non-agriculturist. It was pointed out from

the findings arrived at by the Tribunal

that the petitioner was doing the business

of agricultural instruments which is

supported by the panchnama drawn by the

Circle Officer. It was also submitted that

name of late Madhavlal Kachrabhai Patel

was recorded as Ganotiya since 1971 which

has achieved finality.

17.1) It was also pointed out that the

petitioner was doing business other than

agriculture and monthly income of the

petitioner was more than Rs. 5000/- as

emerging from the evidence led before both

the authorities below which is not denied

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by the petitioner. It was also submitted

that the petitioner was earning income

from Saw mill, rent from Shopping Centre

and Dining Hall and therefore, the case

was remanded twice to the Mamlatdar and

ALT.

17.2) It was also submitted that if the

petitioner would have been a genuine

tenant, then proceedings under section

70(b) of the Tenancy Act would have not

been initiated to decide whether the

petitioner is or was a tenant or protected

tenant or a permanent tenant or not.

17.3) It was submitted that the

petitioner would not have made an

application under section 84C after

execution of the sale deed for

regularisation of the land if he had been

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a genuine tenant which is not natural and

only with a view to become an

agriculturist, the petitioner has adopted

such a modus operandi of declaring himself

as a tenant by showing that he was

cultivating the land in question for two

years prior to the date of registered sale

deed.

17.4) It was therefore, submitted that

the Tribunal has rightly reversed the

orders passed by the Mamlatdar and ALT and

Deputy Collector holding that sale

transaction is contrary to the provisions

of the Tenancy Act and therefore, no

interference may be made in the impugned

judgment and order passed by the Tribunal.

18. Having heard the learned advocates for

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the respective parties and having

considered the facts of the case as well

as reasonings given by the impugned

judgment of the Tribunal, it appears that

the petitioner has adopted a modus

operandi to become agriculturist by

purchasing the agricultural land though he

was not an agriculturist. The petitioner

has not denied that he was not earning

livelihood through agricultural income and

the fact which has come on record that the

petitioner was doing other business is

also not in dispute. The Tribunal has

therefore, rightly come to the conclusion

that the petitioner is not covered by

definition of section 2(2) of the Tenancy

Act which defines "agriculturist" and

reads as under:

                                  "2(2)                "agriculturist"
                                  means              a    person   who





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                          cultivates                               land
                          personally"

19. Section 63 of the Tenancy Act provides for

prohibition of transfer of Agriculture land

to non-agriculturist and reads as follows:

"63. Transfers to non-

agriculturists barred.- (1) Save as provided in this Act,-

(a) no sale (including sales in execution of a decree of Civil Court of for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue) gift, exchange or lease of any land or interest therein, or

(b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, [or]

(c) no agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein

shall be valid in favour of a person who is not an agriculturist [or who being an

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agriculturist cultivates personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not an agricultural labourer]:

Provided that the Collector or an officer authorised by the (State) Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, or for such agreement] on such conditions as may be prescribed.

[Provided further that, no such permission shall be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees..."

20. Section 84C of the Tenancy Act provides for

disposal of land of which transfer is invalid

as under:

"84C. Disposal of land, transfer or acquisition of which is invalid.- (1) Where in respect of the transfer or acquisition of any land made

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on or after the commencement of the Amending Act, 1955, the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of the Act, the Mamlatdar shall issue a notice and hold an inquiry as provided for in section 84B and decide whether the transfer or acquisition is or is not valid..."

21. On perusal of the above provisions and

considering the facts of the case, it

appears that the petitioner with a view to

become an agriculturist has managed to

enter his name in the revenue record as

tenant so as to save the transaction of

purchase of land from rigors of section

63 and 84C of the Tenancy Act with the

help of the Circle Officer.

22. The Tribunal has therefore, rightly

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come to the conclusion that the findings

arrived at by both the Mamlatdar and ALT

and Deputy Collector are perverse so as to

facilitate the petitioner who is a non-

agriculturist to become an agriculturist

to enable him to purchase the agricultural

land. It is also pertinent to note that

the sale deed is executed by the son of

the petitioner as power of attorney holder

of late Madhavlal Kachrabhai Patel. Thus

son of the petitioner has executed sale

deed in favour of his father as Power of

Attorney holder of the landowner which

clearly shows that if the petitioner had

bona fide intention then he would have

directly entered into sale deed with land

owner Madhavlal Kachrabhai Patel. The

Tribunal has also considered the fact that

whether the amount of sale consideration

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is paid or not is also not borne out from

the record as there was no evidence to

that effect and therefore, the entire

transaction is held to be doubtful.

23. Issue was raised before the Tribunal

with regard to locus standi of late

Madhavlal Kachrabhai Patel to challenge

the order passed by the Deputy Collector,

Mamlatdar and ALT as sale deed was

executed by him in favour of the

petitioner. Tribunal has come to the

conclusion that in view of facts emerging

from the record with regard to modus

operandi adopted by the petitioner to

become an agriculturist, question of locus

becomes insignificant.

24. Learned Senior Advocate Mr. Parikh

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referred to and relied upon the decision

of Division Bench of this Court in case of

Navuji Lalji Vaghela v. State of Gujarat

and others (Judgment dated 28.04.2011

passed in Letters Patent Appeal No.433 of

2011 in Special Civil Application

No.6168/2010) wherein it is held by

Division Bench that the person who has

executed sale deed cannot take undue

advantage of the proceedings initiated by

the revenue authority more particularly,

in the land matters after entering into

transaction with eyes wide open knowing

fully well that transactions is in breach

of provisions of the Tenancy Act and after

pocketing huge amount when transaction is

declared invalid and subsequently, if the

purchaser succeeds, the original owner

would come before the court saying that

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transaction be declared invalid. Such

practice needs to be deprecated.

25. It is true that if the person with

open eyes enters into a transaction then

he cannot have any locus to challenge the

same in case the purchaser of the land

succeeds before the revenue authority.

However, in the facts of the case as

rightly held by the Tribunal, the

petitioner has adopted a modus operandi to

become an agriculturist by entering his

name in revenue record as a tenant. It is

also found by the Tribunal that the sale

deed was executed by the son of the

petitioner as a Power of Attorney holder

of the landowner without there being any

evidence on record with regard to payment

of sale consideration. When the

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petitioner, in order to circumvent the

provisions of the Tenancy Act has cleverly

adopted the modus operandi to become an

agriculturist by entering his name in the

right to cultivate the agriculture land

in revenue record as a tenant and in light

of the evidence in the form of panchnama

as well as other evidence recorded by

Circle Officer, the petitioner was doing

other businesses and was a non-

agriculturist and therefore, by only

showing his name in the revenue record as

a tenant to become an agriculturist on the

basis of order dated 3.01.1995 passed by

the Circle Officer, the petitioner cannot

become an agriculturist as is found by the

Tribunal as a matter of fact. The Tribunal

has therefore, rightly held that both the

Mamlatdar and ALT and Deputy Collector has

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given a perverse findings in favour of the

petitioner and therefore, in such

circumstances, the Tribunal found that the

question of locus is not relevant when the

transaction itself is contrary to the

provisions of sections 63 and 84C of the

Tenancy Act.

26. In view of the foregoing reasons,

petition fails and is accordingly

dismissed. Rule is discharged.

(BHARGAV D. KARIA, J) RAGHUNATH R NAIR