Gujarat High Court
Ratnabhai Lavjibhai Rathod vs State Of Gujarat on 24 January, 2024
Author: Sunita Agarwal
Bench: Sunita Agarwal
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C/LPA/981/2010 JUDGMENT DATED: 24/01/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 981 of 2010
In R/SPECIAL CIVIL APPLICATION NO. 12758 of 2009
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2010
In R/LETTERS PATENT APPEAL NO. 981 of 2010
With
CIVIL APPLICATION (FOR JOINING PARTY) NO. 1 of 2013
In R/LETTERS PATENT APPEAL NO. 981 of 2010
With
CIVIL APPLICATION (FOR DIRECTION) NO. 2 of 2010
In R/LETTERS PATENT APPEAL NO. 981 of 2010
FOR APPROVAL AND SIGNATURE:
HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL
sd/-
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE sd/-
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1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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RATNABHAI LAVJIBHAI RATHOD
Versus
STATE OF GUJARAT & 3 other(s)
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Appearance:
MR SP MAJMUDAR(3456) for the Appellant(s) No.
1,1.1,1.2,1.3,1.4,1.5,1.6,1.7
MS. HETAL PATEL, AGP for the Respondent(s) No. 1
Page 1 of 19
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MR DINESH B PATEL(3495) for the Respondent(s) No. 4.1,4.2
MR HB CHAMPAVAT(6149) for the Respondent(s) No. 4.1,4.2
NOTICE SERVED for the Respondent(s) No. 2,3
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CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE
SUNITA AGARWAL
and
HONOURABLE MR. JUSTICE ANIRUDDHA P. MAYEE
Date : 24/01/2024
ORAL JUDGMENT
(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
AGARWAL)
1. The instant appeal is directed against the judgment
and order dated 18.01.2010 passed by the learned Single
Judge in dismissing the petition filed by the petitioners under
Article 227 of the Constitution of India seeking for setting
aside the order dated 01.04.2008 passed by the Gujarat
Revenue Tribunal in Revision Application No.TEN.BA
305/1994, confirming the order passed by the Mamlatdar &
ALT, Gandhinagar dated 31.01.1991 in Tenancy Case No.129
of 1989 as well as the order dated 02.01.1992 passed by the
Deputy Collector (Land Reforms) Appeals, Gandhinagar in
Tenancy Appeal No.SR/47/91.
2. At the outset, we may note that the judgment and
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order dated 18.01.2010 passed by the learned Single Judge
being an order passed in exercise of supervisory jurisdiction
of the High Court under Article 227 of the Constitution of
India, cannot be challenged by means of the Letters Patent
Appeal filed in view of the decision of Full Bench of this Court
passed in Gujarat State Road Transport Corporation
versus Firoze M Mogal and Another in Letters Patent
Appeal 1149 of 2002 and allied matters on 26.12.2013,
wherein it is observed that :
"xi) If the learned Single Judge, in exercise of a purported
power under Article 227 of the Constitution sets aside the
order of Tribunal or Court below and at the same time,
the essential conditions for issue of writ of certiorari are
absent, no appeal will be maintainable against such order
in view of the specific bar created under Clause 15 of the
Letters Patent itself and such an order can be challenged
only by way of a Special Leave Petition before the
Supreme Court."
3. However, since the learned counsel for the
appellants has addressed the Court on merits, we deem it fit
and proper to deal with the contentions of the learned
counsel for the appellants, instead of dismissing the Letters
Patent Appeal only on the ground of maintainability.
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4. The appellants herein namely the original petitioners
claim to be the owners and in possession of the land bearing
Survey No.342, admeasuring acres 2.30 Gunthas of Village
Adalaj, District Gandhinagar, which was inherited by them
from Ratnabhai Lavjibhai Rathod. Out of the aforesaid area
of the plot-in-question, the land admeasuring acres 0.24
Gunthas was sold to the respondent Nos. 2 to 4 herein
(respondent Nos. 2 to 4 in the Writ Court) by way of
registered sale deed dated 24.09.1981. Entry No. 6645 dated
30.09.1981 was made with respect to the registered sale
deed. The record indicates that suo moto proceedings under
the Bombay (Gujarat) Prevention of Fragmentation and
Consolidation of Holdings Act, 1947 (hereinafter referred to
as 'the Fragmentation Act, 1947'), was initiated by the
Deputy Collector on the allegations of the sale deed being in
violation of the provisions of the said Act. By order dated
14.08.1987 in Tukda Case No. 234/1982 passed by the
Deputy Collector, the sale transaction was declared void in
the proceedings under the Fragmentation Act, 1947.
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5. Simultaneously, in the proceedings under Section
84C of the Gujarat Tenancy and Agricultural Lands Act, 1948
(hereinafter referred to as 'the Tenancy Act, 1948'), initiated
by the Mamlatdar & ALT for violation of Section 63 of the
Tenancy Act, 1948 by order dated 04.09.1986 as Ganot Case
No. 3670/1986, the land subject-matter of the sale deed, has
been directed to be vested with the State Government on the
ground that the purchasers / respondent Nos. 2 to 4 herein
are non-agriculturists.
6. The purchasers challenged the order dated
14.08.1987 passed in Tukda Case No. 234/1982 before the
S.S.R.D. in appeal, which was rejected vide order dated
30.05.1988. There was no further challenge. The result is
that the declaration of the sale transaction dated 24.09.1981
as void being in violation of the Fragmentation Act, 1947 has
attained finality. It is the case of the petitioners - owners
herein that as a result of the order dated 14.08.1987 passed
by the Deputy Collector, the name of the petitioners were
mutated in the revenue records (Form No. 7/12) and in
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compliance of the order passed by the Deputy Collector, the
petitioners had paid Rs. 100/- as fine.
7. As regards the proceedings under Section 84C of the
Tenancy Act, 1948, Tenancy Appeal No. 241 of 1986 filed by
the purchasers - respondent Nos. 2 to 4 herein had been
rejected by the Deputy Collector vide order dated
31.12.1987. On a revision filed before the Gujarat Revenue
Tribunal namely Revision Case No. TEN/BA/569/88, the
matter was remanded back to the Mamlatdar & ALT vide
order dated 30.01.1989. On remittal, the case under Section
84C was re-numbered as Ganot Case No. 129/89 and was
decided vide order dated 30.01.1991, wherein it was directed
that for breach of provision of Section 63 of the Tenancy Act,
1948, the land subject-matter of the sale deed dated
24.09.1981 shall vest with the State Government. Again the
matter was taken up in appeal by the purchasers (respondent
No. 2 to 4 herein) and the Tenancy Appeal No. SR/47/1991
filed by them, was dismissed on 02.01.1992. The result is
that the order passed by the Mamlatdar dated 30.01.1991 has
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attained finality.
8. It is the stand of the original petitioners - appellants
herein in the writ petition that they were not aware of the
proceedings initiated by the purchasers, which had
culminated with the dismissal of the tenancy appeal filed by
the purchasers vide order dated 02.01.1992 passed by the
Deputy Collector.
9. The petitioners herein (owners), for the first time,
had challenged the order passed by the Deputy Collector by
filing a Revision Application before the Gujarat Revenue
Tribunal in the year 1994, registered as Revision Case No.
T.E.N.BA 305/94 against the order dated 02.01.1992, which
came to be dismissed on 01.04.2008. The Review
Application filed by the petitioners before the Tribunal had
also been rejected on 03.03.2009.
10. It is contended by the petitioners herein that with
the declaration of the sale transaction dated 24.09.1981 as
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void in the fragmentation proceedings vide order dated
14.08.1987, the name of the petitioners came to be mutated
in the revenue records form No. 7/12 and the petitioners paid
Rs. 100/- as fine under the order passed by the Deputy
Collector. The proceedings under the Fragmentation Act
having attained finality with the dismissal of the appeal filed
by the purchasers on 30.05.1988, the sale transaction which
was declared void, looses its existence. Subsequent order
dated 31.01.1991 passed by the Mamlatdar & ALT for vesting
of the land-in-question for breach of Section 63 of the
Tenancy Act, 1948, therefore, cannot be given effect to. The
submission is that once under the order passed by the
competent authority, the said deed is declared void, no
transaction exists in the eye of law. Further, proceedings
under Section 84C of the Tenancy Act, 1948, therefore, could
not have continued. It was argued that even the object of
Section 63 of the Tenancy Act, 1948 is that the land would be
returned back to the agriculturists. In the instant case, the
land-in-question came in possession of the petitioners with
the passing of the order dated 14.08.1987 passed by the
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Deputy Collector in the fragmentation proceedings, which is
also evident from the mutation of the names of the petitioners
in the revenue records. The petitioners have also complied
with the order of the Deputy Collector dated 14.08.1987 by
depositing fine imposed upon them. With the restoration of
the possession of the land-in-question to the petitioners, there
cannot be any vesting by any subsequent order in the
proceedings under Section 84C of the Tenancy Act, 1948.
Further, the Town Planning Scheme has been implemented
and in lieu of the land-in-question, final plot No. 74/2 has
been allotted to the petitioners. At this juncture, the
petitioners cannot be divested of the land-in-question.
11. The submission, thus, is that the learned Single
Judge has erred in ignoring the above aspects of the matter
in dismissing the petition on the ground that there is nothing
on record to show that the possession of the land-in-question
has been restored to the petitioners. The contention is that
this finding returned by the learned Single Judge is absolutely
incorrect, inasmuch as, the names of the petitioners had
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already been mutated in the revenue records pursuant to the
order dated 14.08.1987 passed by the deputy Collector in the
fragmentation proceedings.
12. Reliance is placed on the decision of this Court in the
case of Valjibhai Jagjivanbhai versus State of Gujarat
reported in 2005 (3) GLR 1852; Brahmbhatt Ambalal
Ashabhai versus Special Secretary Revenue Department
reported in 1983 (2) GLR 1091, to contend that the
transaction or partition of the land contrary to the provisions
of the Fragmentation Act, 1947 is to be held void and the
Collector is bound to summarily evict unauthorized occupants
/ purchasers who are found to be in wrongful possession of
the land-in-question on transfer, once the transfer is declared
void by operation of law.
13. Placing reliance on the decision in the case of
Mavjibhai Dharsibhai versus State of Gujarat reported
in 1994 (2) GLR 1168, it was argued that transaction in
contravention of Section 63 / 64 of the Tenancy Act, 1948, is
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invalid and not void.
14. It is further argued that there is an inordinate delay
in proceedings under Section 84C on the ground that the
purchasers are not agriculturists. Placing reliance on the
decisions in the case of Mohamad Kavi Mohamad Amin
versus Fatmabai Ibrahim reported in (1997) 6 SCC 71,
and Amitbhai Kantilal Jayswal & Ors. versus State of
Gujarat & Ors. reported in 2019 eGLR_HC 10006359, it
was argued that this Court had repeatedly quashed the
notices under Section 84C of the Tenancy Act, 1948 on the
ground of delay. It is held that the suo moto proceedings
under Section 84C had not been initiated by the Mamlatdar &
ALT within a reasonable time.
15. Having considered the submissions of the learned
advocate for the appellants and perused the records, we may
take note of the provisions of Section 63 and 84C of the
Tenancy Act, 1948, relevant for our purposes. Section 63 of
the Tenancy Act, 1948 restricts transfer of agriculture land to
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non-agriculturists. There is no dispute in the instant case
that the purchasers are non-agriculturists.
16. We may further take note of Section 84C(2) of the
Tenancy Act, 1948, which provides that if in the inquiry made
by the Mamlatdar, it comes to the conclusion that the
transfer or acquisition of the land to be invalid, he shall make
an order declaring the transfer or acquisition to be invalid,
unless the parties to such transfer or acquisition give an
undertaking-in-writing in a period of three months from such
date as the Mamlatdar may fix that they shall restore the land
along with the rights and interest therein to the position in
which it was immediately before the transfer or acquisition,
and the land is so restored within that period.
17. In the instant case, the petitioners who were owners
of the land-in-question did not challenge the proceedings
drawn by the Mamlatdar under Section 84C and the order
passed on 04.09.1986 in Ganot Case No. 3670/1986 at the
first instance. On an appeal and revision filed by the
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purchasers (respondent Nos. 2 to 4 herein), the matter was
remitted back to the Mamlatdar & ALT. The delay, if any, in
the proceedings under Section 84C for breach of Section 63
of the Tenancy Act, 1948 cannot come to rescue to the
petitioners. The proceedings under Section 84C of the
Tenancy Act, 1948 were initiated in the year 1986 by suo
moto registration of Ganot Case No. 3670/1986, therefore,
cannot be said to be vitiated on the ground of delay.
18. The fact remains that two proceedings under the
Fragmentation Act, 1947 and the Tenancy Act, 1948 were
simultaneously going on with respect to the sale transaction
dated 24.09.1981, which was found to be in violation of the
provisions of the Fragmentation Act, 1947 and contrary to the
Section 63 of the Tenancy Act, 1948. We may note that at the
first instance by the order dated 04.09.1986 in the
proceedings under Section 84C of the Tenancy Act, 1948, the
Mamlatdar had directed the land-in-question to be vested
with the State Government. The order dated 14.08.1987 in
the fragmentation proceedings came later to the order of
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vesting of the land-in-question by the Mamlatdar.
Subsequent setting aside of the said order in appeal and
remittal of the matter back will not be a ground to say that
the proceedings under Section 84C concluded in the year
1991 was a de novo proceeding. The original proceedings
initiated in the year 1986 were revived on remand and with
the re-registration of the Ganot Case No. 3670/1986 as Ganot
Case No. 129/89, it was proceeded. The Mamlatdar & ALT
had again reached at the conclusion that for the breach of
Section 63 of the Tenancy Act, 1948, the land-in-question
shall vest with the State Government.
19. The contention of the learned counsel for the
petitioners that once by subsequent event of the passing of
the order dated 14.08.1987, the sale transaction has been
declared void under the Fragmentation Act, 1947, no
transaction in law exists and hence, the proceedings
continued with the passing of the order dated 30.01.1991
under Section 84C of the Tenancy Act, 1948 have to be
declared vitiated, is found to be misconceived.
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20. As rightly noted by the learned Single Judge, both
the proceedings under the Fragmentation Act, 1947 and
Tenancy Act, 1948 were independent and simultaneous. They
have different consequences and the order passed in one
proceeding has no bearing on the other one.
21. Moreover, from the perusal of the order dated
30.01.1991 passed by the Mamlatdar & ALT in Ganot Case
No. 129/89, it is clear that a definite finding has been arrived
therein that the purchasers were not farmers, and hence, the
sale transaction dated 24.09.1981 was illegal and that the
purchasers were not willing and ready to get the land-in-
question in its original position. However, the vendor namely
Ranchhodbhai (Ranchodlal) Dayalal Patel had given an
undertaking-in-writing that the land-in-question was in his
possession and he was ready and willing to bring the land-in-
question in its original position. As a result of it, while
holding the sale transaction as illegal being in breach of
Section 63 of the Tenancy Act, ordering that the land-in-
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question be taken into the holding of the State Government
without any encumbrances, it was directed by the Mamlatdar
that if the parties bring the land-in-question to its original
position within 90 days from the date of receipt of the order
and inform accordingly to his office in writing, then, the said
order of vesting shall not come into force. But, if the parties
did not bring the land-in-question to its original position, the
land-in-question shall be taken into the holding of
Government after limitation time with permanent effect as
per the provisions of Section 84C(4) of the Tenancy Act.
22. As rightly noted by the learned Single Judge, there is
nothing on record that the possession of the land-in-question
was restored to the petitioners - owners pursuant to the
order dated 14.08.1987 passed in the fragmentation
proceedings. Further, it is rightly noted by the learned
Single Judge that the record does not indicates that the
vendors / original landowners had abided by the undertaking
given before the Mamlatdar in the order dated 30.01.1991, to
bring the land-in-question to its original position within 90
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days from the date of receipt of the order by returning the
amount of sale consideration to the purchasers. As noted
hereinabove, both the parties were directed to bring back the
land-in-question in its original position in the order dated
30.01.1991 passed by the Mamlatdar.
23. Having noted the above, we may record that the
purchasers of the land-in-question did not challenge the order
dated 02.01.1992 passed in appeal under the Tenancy Act,
whereby the order dated 30.01.1991 passed by the
Mamlatdar was affirmed. The original owner who did not file
any appeal, straightaway filed the revision application before
the Revenue Tribunal which was dismissed on 01.04.2008.
The Review Application was also dismissed on 03.03.2009. In
none of these proceedings, the petitioners could demonstrate
that they had actually restored the land-in-question to its
original position in compliance of the undertaking given
before the Mamlatdar, recorded in the order dated
30.01.1991.
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24. We, therefore, do not find any error in the findings
returned by the learned Single Judge that in absence of any
evidence on record showing restoration of the possession to
the petitioners and that when the parties were not ready to
restore the possession back in compliance of the order
passed under Section 84C of the Tenancy Act, 1948, no error
can be said to have been committed by the Revenue Tribunal
in dismissing the revision filed by the petitioners vide order
dated 01.04.2008. The learned Single Judge has rightly
refused to invoke its supervisory jurisdiction under Article
227 of the Constitution of India to dismiss the petition filed by
the appellants herein.
25. At the cost of reiteration, it may noted at this
juncture that the petitioners - original owners - vendors of
the sale deed dated 24.09.1981 did not challenge the order
dated 04.09.1986 passed in Section 84C proceeding at the
first instance, and in the second round, there was challenge
straightaway in revision to the order dated 30.01.1991 under
Section 84C of the Tenancy Act, 1948. Compliance of the
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directions contained therein could not be demonstrated
before us.
26. Moreover, as noted hereinabove, the impugned
judgment and order dated 18.01.2010 passed by the learned
Single Judge, subject-matter of the challenge herein, has
been passed in exercise of the supervisory jurisdiction under
Article 227 of the Constitution of India, the Letters Patent
Appeal is liable to be dismissed as not maintainable as well.
27. For the above discussion, the instant Letters Patent
Appeal is liable to be dismissed both being non-maintainable
as well as on merits, and hence, is, hereby dismissed. No
order as to costs. All pending applications shall also stand
disposed of.
sd/-
(SUNITA AGARWAL, CJ )
sd/-
(ANIRUDDHA P. MAYEE, J.)
AMAR SINGH
