Gujarat High Court
Yogeshkumar Dashrathbhai Patel vs State Of Gujarat on 24 January, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13699 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 12355 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
√
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YOGESHKUMAR DASHRATHBHAI PATEL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR SATYAM Y CHHAYA(3242) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the Respondent(s) No.
2,3,4
MR J K SHAH, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 24/01/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Satyam Y. Chhaya for the petitioner
and learned AGP Mr. J.K. Shah for the respondent-State in both the
petitions.
2. Since the issue in both the petitions are co-relatable, more particularly
parties to the litigation being common, with the consent of learned
Advocates for the parties, the petitions are taken up for final disposal.
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3. Since to this Court it would appear that the decision in Special
Civil Application No. 13699 of 2024, will have a bearing on the fate of
Special Civil Application No.12355 of 2024, the former Special Civil
Application is taken up first.
Order in Special Civil Application No. 13699 of 2024 :
4. By way of this petition, the petitioner challenges order dated
23.08.2024 passed by the Mamlatdar and ALT, Ghatlodiya, Ahmedabad,
more particularly while rejecting application preferred by the petitioner
for taking out proceeding against the petitioner under Section 63AB of
the Gujarat Tenancy and Agricultural Lands Act, 1948 (for short "the
Tenancy Act"), the Mamlatdar had inter alia directed that the proceedings
under Section 63AD of the Tenancy Act, may be initiated against the
petitioner for the land in question.
5. Learned Advocate Mr. Chhaya for the petitioner would submit that
the petitioner is admittedly an agriculturist as per the Tenancy Act, and
whereas, the petitioner and certain co-owners had purchased the land in
question from predecessor-in-title of the petitioner one Mr. Harendra
Maganlal Bhagat vide registered sale deed dated 04.08.2018. Again, the
fact of the co-owners being agriculturists is an admitted position.
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According to the learned Advocate, the said predecessor-in-title had
purchased the land in question vide registered sale deed dated
03.11.1980, and entry No. 1589 was posted and certified reflecting the
sale in favour of the said Harendra Maganlal Bhagat. Learned Advocate
Mr. Chhaya would further submit that proceedings under Section 84C of
the Tenancy Act, had been initiated against the predecessor-in-title of the
petitioner and whereas the Mamlatdar and ALT, Ahmedabad had
registered Tenancy Case No. 360 of 1990 and the purchase of the land in
question by the predecessor was declared in breach of Section 63 of the
Tenancy Act, and whereas the land was directed to be vested in the State
Government. Learned Advocate Mr. Chhaya would submit that the
predecessor-in-title of the petitioner had challenged the order in appeal
and the appellate authority had remanded the matter back to the
Mamlatdar and ALT, and whereas again in remand proceedings i.e.
Tenancy Case No. 120 of 1993, the Mamlatdar and ALT vide order dated
20.10.1993 had again directed vesting of the land in the State
Government for breaching of Section 63 of the Tenancy Act. The said
order had been challenged by the predecessor-in-title of the petitioner
before the Gujarat Revenue Tribunal vide Revision Application No. TEN/
BA/787/94, which came to be allowed by the Tribunal vide its order
dated 08.12.1995. Learned Advocate would further submit that the seller
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of the land had challenged the said order before this Court by preferring
Special Civil Application No. 3023 of 1996, and vide order dated
1510.199, 18.10.1999 and 22.10.1999, a learned Co-ordinate Bench of
this Court, had set aside the order passed by the GRT and remanded the
matter back to the GRT for a fresh decision. It is submitted that vide
order dated 21.12.2000, the Tribunal had inter alia directed dropping of
the proceedings against the predecessor-in-title of the petitioner under
Section 84C of the Tenancy Act for breach of Section 63 of the Tenancy
Act. Thus, the status of the predecessor of the petitioner being an
agriculturist, according to the learned Advocate, stood confirmed.
5.1 Learned Advocate Mr. Chhaya would submit that when the
petitioner had purchased the land in question, the revenue record clearly
indicated that the predecessor-in-title of the petitioner was an
agriculturist, and it was under such circumstances that the petitioner and
his co-owners had entered into the transaction. Learned Advocate would
submit that while there were certain proceedings which had taken place in
the interregnum, and whereas reference is drawn to an entry No. 3368
with regard to a part of the very same land, which had been purchased by
one Mr. Rajeshkumar Kantilal and whereas it is submitted that since the
revenue authorities were raising an issue as regards the status of the
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predecessor as an agriculturist, the said purchaser had opted for
proceedings under Section 63AB of the Tenancy Act, i.e. of regularizing
the transaction since the last purchaser was an agriculturist by paying
premium at the rate of 10% of the Jantri value. Learned Advocate would
submit that as such, since the agriculturist status of the predecessor-in-
title of the petitioner remained even on the date when the present
petitioner had entered into the transaction with regard to the said land,
yet, to ensure that the petitioner could put the land to some use, the
petitioner had submitted an application dated 01.04.2022, inter alia
requesting the Mamlatdar and ALT, Ghatlodiya to take appropriate action
under Section 63AB of the Tenancy Act and while relying upon the fact
that the status of the predecessor-in-title of the petitioner as an
agriculturist, had not be subject matter of scrutiny before any competent
forum, the petitioner had also drawn the attention of the revenue
authorities to Tenancy Review Case No. 06 of 2019, i.e. with regard to
the person who had purchased the adjacent parcel of land from the
predecessor-in-title of the present petitioner. Learned Advocate would
submit that while the said application had been preferred by the petitioner
on 01.04.2022, the Mamlatdar and ALT, Ghatlodiya had passed the
impugned order dated 23.08.2024 whereby the request of the petitioner
for following the procedure under Section 63AB had been rejected and
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the Mamlatdar had directed initiation of proceedings under Section 63AD
of the Tenancy Act and whereas consequent thereto, notice dated
02.09.2024 had been issued by the Mamlatdar, at which stage, the
petitioner has approached this Court inter alia challenging order dated
23.08.2024 as well as consequent notice dated 02.09.2024.
6. At the outset, it requires to be noted that while learned AGP Mr.
J.K. Shah for the respondent-State did raise an objection that the
petitioner had efficacious remedy against the impugned order,
considering that the notice under Section 63AD dated 02.09.2024 had
been also subject matter of challenge, more particularly with regard to a
transaction of the year 2018 and further considering the fact that the
agriculturist status of the predecessor-in-title of the petitioner was
continuing to exist, and in view of the fact that the Special Civil
Application No. 12355 of 2024 was being heard by this Court, this Court
had deemed it appropriate to take up the present petition for final
disposal.
7. As against the submissions made by learned Advocate Mr. Chhaya
for the petitioner while learned AGP Mr. Shah would attempt to defend
the order in question, but the learned AGP could not dispute the fact that
as of now, the status of the predecessor-in-title of the petitioner, as an
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agriculturist, is undisturbed and continues to remain. The learned AGP
would further submit that the very fact of the petitioner having submitted
an application on 01.04.2022 requesting that procedure under Section
63AB may be undertaken, is indicative of the fact that the petitioner
himself was clear about the fact that the transaction itself was not in
accordance with Tenancy Act. The learned AGP would submit that since
the petitioner had preferred an application for taking out proceeding
under Section 63AB of the Tenancy Act and after scrutinizing such
application since the Mamlatdar was of the opinion that the said
provisions would not come to the aid of the petitioner and whereas since
it appeared to the Mamlatdar that the petitiner would be required to
undergo the rigors of the procedure under Section 63AD, therefore, the
Mamlatdar, while rejecting the request of the petitioner, had further
initiated proceedings under Section 63AD of the Tenancy Act. Thus,
leaned AGP would submit that since the entire procedure had happened at
the behest of the petitioner, no fault could be found in the action taken by
the Mamlatdar.
8. In rejoinder, learned Advocate Mr. Chhaya for the petitioner would
submit that while it is indisputable that the status of the predecessor-in-
title of the petitioner as an agriculturist still remains, yet, the petitioner
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wanted to cut short the entire issue and therefore he had moved an
application for initiating procedure under Section 63AB of the Tenancy
Act. Learned Advocate Mr. Chhaya would submit that while it was open
for the Mamlatdar to have considered such application or at the most have
reject the same, the Mamlatdar was not entitled, in a request made by the
petitionerk, to direct initiation of proceedings under Section 63AD of the
Tenancy Act. Learned Advocate Mr. Chhaya would submit that Section
63AD of the Tenancy Act inter alia envisages imposing of penalty at the
rate of 03 times the amount of prevailing Jantri upon the person in whose
favour the land is not validly transferred i.e. in the present case, the
present petitioner, and whereas it is submitted that such a penalty would
be too onerous for the petitioner and whereas it is under such
circumstances that the petitioner had questioned the decision before this
Court.
9. Having heard the learned Advocates for the respective parties and
having perused the documents on record, the only question that arises for
consideration of this Court is whether the Mamlatdar was entitled to
invoke the provisions of Section 63AD of the Tenancy Act, more
particularly in view of the fact that the predecessor-in-title of the
petitioner remains as an agriculturist as on date. For better appreciation of
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the dispute, Section 63AD of the Tenancy Act, is reproduced hereinbelow
for benefit.
"63AD. Penalty to transferee for transfer of land in breach of
provisions of sub-section (1) of Section 63.- (1) Notwithstanding
anything contained in section 84C, where the Mamalatdar suo
moto or on the application of any person, has reason to believe
that, in the breach of the provisions of clause (a), (b) or (c) of sub-
section (1) of section 63, transfer of the land has taken place in
favour of a person who is not an agriculturist or in favour of any
institution, the Mamalatdar shall issue a notice to such person or
institution and, after affording an opportunity of being heard,
decide whether the transfer of the land is valid or not.
(2) If the Mamalatdar comes to a decision that the transfer of such
land is not valid then he shall pass an order thereby,-
(i) imposing the penalty of three times the amount of the
prevailing Jantri of such land on such person or institution in
whose favour such land is not validly transferred; and
(ii) directing the person or institution in whose favour such
land is not validly transferred to restore the land along with
the rights and interest therein to the position in which it was
immediately before such transfer within a period of one
month of such order.
Explanation - For the purpose of this Act, the expression "Jantri"
means the index of base market values as may be determine by the
State Government from time to time.]"
9.1 A perusal of the above, would reveal that Section 63AD, provides
for an exception to the procedure laid down under Section 84C of the
Tenancy Act, inasmuch as, the Sub-section inter alia empowers the
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Mamlatdar suo motu or an application of any person to initiate
proceedings for breach of clause (a), clause (b) or clause (c) of sub-
section 1 of Section 63 of the Tenancy Act i.e. transfer of land having
taken place in favour of a person who is not an agriculturist. It is also
envisaged that if the Mamlatdar comes to a conclusion that the transfer
was not valid, then he could impose penalty of 03 times the amount of
prevailing Jantri upon the person in whose favour the land is not validly
transferred and whereas the Mamlatdar is also empowered to direct the
person in whose favour the land is not validly transferred to restore the
land in its earlier position before the transfer in question.
10. To this Court, it would appear that Section 63AD was not required
to be invoked at all, more particularly considering that neither the factum
of the petitioner being an agriculturist nor the factum of the predecessor-
in-title of the petitioner being an agriculturist stands disputed as on date.
The said issue being undisputable, there was no reason for the Mamlatdar
to have initiated the proceedings at all. The above being the position, to
this Court, it would appear that there is no requirement to elaborate the
proposition any further.
11. Insofar as the aspect with regard to Section 63AB of the Tenancy
Act is concerned, the said Section is also reproduced hereinbelow for
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benefit.
"63AB. Last transaction if made to an agriculturist to be valid
even if earlier transaction or transactions may be invalid.- (1)
Notwithstanding anything contained in section 63, where the
Mamalatdar suo moto or on the application of any person
interested in the land, has reason to believe that, in the breach of
the provisions of clause (a), (b) or (c) of sub-section (1) of section
63, transfer of the land had taken place in favour of a person who
was not an agriculturist, and that certain transaction or transactions
have taken place thereafter and the person in whose favour the last
transaction was made on or before the 30th June, 2015, is an
agriculturist, he shall issue a notice to such person and shall give
him an opportunity of being heard and also make an inquiry as he
deems fit.
(2) If the Mamalatdar comes to the conclusion that as a result of the
last transaction in respect of such land, the person to whom such
land was transferred is indeed an agriculturist, he shall call upon
such person to pay to the Sate Government, for the use of such land
only for the agricultural purpose, the amount of ten percent of the
prevailing Jantri and after such payment he shall declare, by an
order, such last transaction to be valid irrespective of the fact that
any one or more of such transactions was or were invalid and upon
such order, no proceedings under section 84C shall be initiated and
if already initiated shall be discontinued forthwith."
11.1 A perusal of Section 63AB reveals that if transaction is lastly made
to an agriculturist, the same could be validated that is saved, even if
earlier transactions were invalid. It would appear that if a transfer had
taken place in favour of a person who was not an agriculturist and such
person transacts the land to a person who is an agriculturist under the
Tenancy Act, and the agriculturist was lastly holding the land in question,
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then the transaction by a non-agriculturist in favour of the agriculturist
would be saved, subject to the condition that the transfer was before
30.06.2015 and subject to the condition that the person in whose favour
the land is last transacted, would pay penalty at the rate of 10% of the
prevailing Jantri value. To this Court, it would appear that considering the
fact of the predecessor-in-title of the petitioner retaining his status as an
agriculturist, even the said Section was not required to be resorted to,
albeit, an application for resorting to the same had been made by the
petitioner.
12. Having observed as above, this Court is inclined to accept the
submissions of learned AGP Mr. Shah that as such, the Mamlatdar was
called upon by the petitioner himself, by preferring an application on
01.04.2022, to resort to proceeding under Section 63AB, and whereas the
Mamlatdar upon scrutiny, had come to a conclusion that proceedings
under Section 63AD ought to be initiated. It appears that though the
petitioner was not required to make an application for resorting to
procedure under Section 63AB, yet, having done so, the Mamlatdar had
rejected the same and inter alia directed initiation of proceedings under
Section 63AD. While the Mamlardar's action cannot be justified, more
particularly in view of the discussion above, but at the same time the fact
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remains that it was the petitioner who initiated the entire process.
13. Be that as it may, to this Court, it would appear that since
provisions of Section 63AD could not be invoked, therefore, the
impugned order dated 23.08.2024 passed by the Mamlatdar and ALT,
Ghatlodiya, is required to be interfered with, yet, considering the fact that
it was the petitioner who was agreeable to pay 10% Jantri value i.e. as per
Section 63AB, therefore, appropriate orders also are required to be passed
with regard to the said agreement. The reason being that when the
petitioner himself had volunteered for initiation of a particular
proceeding, which otherwise may not have been invokable, then such
voluntary gesture shown by the petitioner in favour the State, ought to be
appropriately dealt with, that is to say that interest of the State revenue is
also required to be taken care of, albeit appropriately.
14. Having regard to the above discussion, the present petition is
required to be allowed and the following directions are required to be
passed :
(i) The order dated 23.08.2024 passed by the Mamlatdar and ALT,
Ghatlodiya, Ahmedabad, is hereby quashed and set aside, consequently
the Notice dated 02.09.2024 issued by the very same authority is also
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hereby quashed and set aside.
(ii) The petitioner is directed to pay cost quantified at Rs. 10,00,000/-,
which would be the approximate equivalent amount of the 10% Jantri
value as the petitioner would have paid if his application under Section
63AB had been accepted, to be deposited with the Chief Minister's Relief
Fund, within a period of four weeks from the date of receipt of this order.
15. With the above observations and directions, the present petition
stands disposed of as allowed.
Order in Special Civil Application No. 12355 of 2024 :
16. In view of the order passed by this Court in Special Civil
Application No. 13699 of 2024, the impugned order dated 28.10.2022
passed by the Collector, Ahmedabad is hereby quashed and set aside. It
would be open for the petitioner to file a fresh application for grant of NA
permission which shall be considered appropriately on its own merits in
accordance with law. The present petition stands disposed of accordingly.
Direct service is permitted.
(NIKHIL S. KARIEL,J)
BDSONGARA
