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Dhirajlal vs State

High Court Of Gujarat|27 April, 2011

JUDGMENT / ORDER

Whether Reporters of Local Papers may be allowed to see the judgment ? Yes 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 of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ================================================= DHIRAJLAL NATHABHAI GAJERA & 1 - Appellant(s) Versus STATE OF GUJARAT & 2 - Respondent(s) ================================================= Appearance :
MR MIHIR THAKORE and MR PERCY KAVINA, SR. ADVOCATES with MR AMAR D MITHANI for Appellant(s) : 1 - 2.
MS KRINA P CALLA, AGP for Respondent(s) : 1 -
3. ================================================= CORAM :
HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA and HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 27/04/2011 CAV JUDGMENT (Per : HONOURABLE THE CHIEF JUSTICE MR. S.J. MUKHOPADHAYA) This appeal has been preferred by the appellant - original petitioners against the order dated 9.10.2009 passed by the learned Single Judge in Special Civil Application No. 788 of 2009. By the said order, the writ petition preferred by the petitioners was dismissed.
2. The case relates to agricultural land admeasuring H 1 - 24 - 44 bearing Survey No. 127 in village Gotri, Taluka and District Vadodara which originally belonged to Bai Chanchalben, widow of Becharbhai Dadabhai Barot, who was the original owner of the land. One Shri Punjabhai Padhiyar was the tenant. The said tenant purchased the land from the widow by a registered sale deed dated 10.8.1960.
3. Under Section 32(1) of the Bombay Tenancy & Agricultural Lands Act, 1948 (hereinafter referred to as "the Act"), every tenant shall be deemed to have purchased the land on tillers' day i.e. the 1st day of April, 1957 and deemed to have purchased the land from his landlord, free of all encumbrances subsisting thereon on the said day, the land held by him as tenant even if such tenant is a permanent tenant thereof and cultivates the land personally and if not a permanent tenant, but cultivates the land leased personally and the landlord has not given notice of termination of his tenancy under Section 31 of the Act. This will be evident from the relevant provisions of Section 32(1) as quoted hereinbelow :-
"32.(1) Tenants deemed to have purchased land on tillers' day.- On the first day of April, 1957 (hereinafter referred to as "the tillers' day") every tenant shall, subject to the other provisions of this section and the provisions of the next succeeding sections, be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon, on the said day, the land held by him as tenant, if -
(a) such tenant is a permanent tenant thereof and cultivates land personally;
(b) such tenant is not a permanent tenant but cultivates the land leased personally; and
(i) the landlord has not given notice of termination of his tenancy under section 31; or
(ii) notice has been given under section 31, but the landlord has not applied to the Mamlatdar on or before 31st day of March 1957 under section 29 for obtaining possession of the land; or
(iii) the land has not terminated his tenancy on any of the grounds specified in section 14, or has so terminated the tenancy but has not applied to the Mamlatdar on or before the 31st day of March, 1957 under section 29 for obtaining possession of the land :
Provided that ... ... .... .... ...."
4. The Tribunal under Section 32G of the Act is required to determine the price of the land to be paid by tenants in the manner as prescribed therein, which reads as follows :-
"32G.
Tribunal to issue notices and determine price of land to be paid by tenants, -
(1) As soon as may be after the tillers' day the Tribunal shall publish or caused to be published a public notice, in the prescribed form in each village within its jurisdiction calling upon -
(a) all tenants who under section 32 are deemed to have purchased the lands,
(b) all landlords of such lands, and
(c) all other person interested therein to appear before it on the date specified in the notice. The Tribunal shall issue a notice individually to each such tenant, landlord and also, as far as practicable, other persons calling upon each of them to appear before it on the date specified in the public notice.
(2) The Tribunal shall record in the prescribed manner the statement of the tenant whether he is or is not willing to purchase the land held by him as a tenant.
(3) Where any tenant fails to appear or makes a statement that he is not willing to purchase the land, the Tribunal shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase is ineffective.
Provided that if such order is passed in default of the appearance of any party, the Tribunal shall communicate such order to the parties and any party on whose default the order was passed may within 60 days from the date on which the order was communicated to him apply for the review of the same.
(4) If a tenant is willing to purchase, the Tribunal shall, after giving an opportunity to the tenant and landlord and all other person interested in such land to be heard and after holding an inquiry, determine the purchase price of such land in accordance with the provision of section 32-H and of sub-section (3) of section 63A :
Provided that where the purchase price in accordance with the provisions of section 32H is mutually agreed upon by the landlord and the tenant, the Tribunal after satisfying itself in such manner as may be prescribed that the tenant's consent to the agreement is voluntary may make an order determining the purchase price and providing for its payment in accordance with such agreement.
(5) In the case of a tenant who is deemed to have purchased the land on the prostponed date the Tribunal shall, as soon as may be, after such date determine the price of the land;
(6) If any land which, by or under the provisions of any of the Land Tenures Abolition Acts referred to in Schedule III to this Act, is regranted to the holder thereof on condition that it was not transferable, such condition shall not be deemed to affect the right of any person holding such land on lease created before the regrant and such person shall as a tenant be deemed to have purchased the land under this section, as if the condition that it want not transferable was not the condition of regrant."
5. The sale of agricultural land to a particular person is only permissible under Section 64 under which the landlord who intends to sell any land is required to apply to the Tribunal for determining the reasonable price thereof. After the Tribunal determines the reasonable price, the landlord thereafter will first make an offer to the tenant in actual possession thereof and thereafter if the tenant does not agree, to all persons and bodies mentioned in the priority list. Under sub-section (8) of Section 64, any sale made in contravention of Section 64 shall be invalid, which reads as follows :-
"64. Sale of agricultural land to particular person, - (1) Where a landlord intends to sell any land, he shall apply to the Tribunal for determining the reasonable price thereof. The Tribunal shall thereupon determine reasonable price of the land in accordance with the provision of section 63A. The Tribunal shall also direct that the price shall be payable either in lump sum, or in annual installments not exceeding six carrying simple interest at 4½ per cent, per annum :
Provided that in the case of sale of the land in favour of a permanent tenant when he is in possession thereof, the price shall be at six times the annual rent.
(2) After the Tribunal has determined the reasonable price, the landlord shall simultaneously in the prescribed manner make an offer,-
(a) in the case of agricultural land,-
(i) to the tenant in actual possession thereof, notwithstanding the fact that such land is a fragment, and
(ii) to all persons and bodies mentioned in the priority list;
(b) in the case of a dwelling house, or a site of a dwelling house or land appurtenant to such house when such dwelling house, site or land is not used or is not necessary to carry on agricultural operations in the adjoining lands-
(i) to the tenant thereof;
(ii) to the person residing in the village who is not in possession of any dwelling house;
Provided that if there are more than one such person the offer shall be made to such person or person and in such order of priority as the Collector may determine in this behalf having regarding to the needs of the following person namely :-
(i) an agricultural labourer.
(ii) an artisan,
(iii) a person carrying on an allied pursuit.
(iv) any other person in the village (3) The persons to whom such offers are made shall intimate to the landlord within one month from the date of receipt of the offer whether they are willing to purchase the land at the price fixed by the Tribunal.
(4)(a) If only one person intimates to the landlord under sub-section (3) his willingness to accept the offer made to him by the landlord under sub=section (2), the landlord shall call upon such person by a notice in writing in the prescribed form to pay him the amount of the reasonable price determined by the Tribunal or to deposit the same with Tribunal within one month or such further period as the landlord may consider reasonable from the date of receipt of the notice by such person.
(b) If more than one person intimates to the landlord under sub-section (3) their willingness to accept the offers made to them by the landlord under sub-section (2), the landlord shall call upon by a notice in writing in the prescribed from and the person having the highest priority in the order of priority given in sub-section (2) to pay him the amount of the reasonable price determined by the Tribunal or to deposit the same with the Tribunal within one month or such further period as the landlord may consider reasonable from the date of the notice by such person.
(5) If the person to whom a notice is given by the landlord under sub-section (4) fails to pay the amount of the reasonable price to the landlord or to deposit the same with the Tribunal within the period referred to in sub-section (4) such person shall be deemed to be not willing to purchase the land and the landlord shall call upon in the manner provided in sub-section (4) the person who stands next highest in the order of priority and who has intimated his willingness to the landlord under sub-section (3).
(6) if any dispute arises under this section regarding -
(a) the offer made by the landlord under sub-section (2), or
(b) the notice given by the landlord under sub-section (4) or (5), or
(c) the payment or deposit of the reasonable price, or
(d) the execution of the sale deed, such dispute shall be decided by the Tribunal.
(7)(a) Notwithstanding anything contained in the foregoing provisions of this section a landlord may after obtaining the previous permission of the Tribunal as provided in the next succeeding clause (b) sell any land notwithstanding the fact that such land is a fragrant to the tenant in actual possession thereof at a price mutually agreed upon between him and the tenant subject to the provision of section 63A.
(b) The landlord shall make an application in writing to the Tribunal for permission to sell the land at such price. On receipt of the application, the Tribunal shall grant the permission if, on holding an inquiry, it is satisfied that the price has been agreed to voluntarily by the tenant.
(8) Any sale made in contravention of this section shall be invalid.
(9) If a tenant refuses or fails to purchase the land or a dwelling house offered to him under this section, and the land or the dwelling house, as the case may be, is sold to any other person under this section, the landlord shall be entitled to evict such tenant and put the purchaser in possession."
In the present case, there being a tenant of the lady, Section 32 was attracted and the land was sold in favour of the tenant by the widow on 10.6.2005 without applying before the Tribunal under Section 64 for determining the reasonable price thereof.
6. Section 84-C of the Act stipulates disposal of land, transfer or acquisition of which is invalid. Thereunder, if transfer or acquisition of land made after the commencement of the said Act is in violation of any of the provisions, the matter can be suo motu taken up by the Collector or an application may be filed by any person interested in such land. Where there is a reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of the Act, the Mamlatdar after notice and inquiry as provided under Section 84B, is required to decide whether the transfer or acquisition is or is not invalid. If the Mamlatdar comes to a conclusion that the transfer or acquisition is invalid, he will declare the transfer or acquisition as invalid and the land is to be restored alongwith right and interest to the position in which it was immediately before the transfer or acquisition of the land.
Under proviso to sub-section (2) of Section 84-C, where the transfer of land was made by the landlord to the tenant of the land and the area of the land so transferred together with the area of other land, if any, cultivated personally by the tenant did not exceed the ceiling area, the Mamlatdar shall not declare such transfer to be invalid, if the amount received by the landlord as the price of the land is equal to or less than the reasonable price determined under Section 63A and the transferee pays to the State Government a penalty equal to Re.1/- within a period of three months, or if the amount received by the landlord as the price of land is in excess of the reasonable price and the transferor as well as the transferee pays to the State Government each a penalty equal to one-tenth of the reasonable price within the fixed period. If the Mamlatdar declares the transfer of land as illegal under sub-section (2), the land shall be deemed to vest in the State Government free from all encumbrances.
This will be evident from Section 84C of the Act which read as follows :-
"84C. Disposal of land transfer or acquisition of which is invalid.- (1) Where in respect of the transfer or acquisition of any land made on or after the commencement of the Amending Act, 1955, the Mamlatdar suo moto 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 this 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 invalid.
(2) If after holding such inquiry, the Mamlatdar comes to a conclusion that the transfer of acquisition of land to be invalid, he shall make an order declaring the transfer or acquisition to be invalid, unless the parties to such transfer of acquisition give an undertaking in writing that within a period of three months from such date as the Mamlatdar may fix, they shall restore the land alongwith 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 :
Provided that where the transfer of land was made by the landlord to the tenant of the land and the area of the land so transferred together with the area of other land, if any, cultivated personally by the tenant did not exceed the ceiling area, the Mamlatdar shall not declare such transfer to be invalid -
(i) if the amount received by the landlord as the price of the land in equal to or less than the reasonable price determined under section 63A and the transferee pays to the State Government a penalty equal to Re.1 within such period not exceeding three months as the Mamlatdar may fix;
(ii) if the amount received by the landlord as the price of the land is in excess of the reasonable price determined under section 63A and the transferor as ell as the transferee pays to the State Government each penalty equal to one-tenth of the reasonable price within such period as may be fixed by the Mamlatdar.
(3) On the declaration made by the Mamlatdar under sub-section (2),-
(a) the land shall be deemed to vest in the State Government, free from all encumbrances lawfully subsisting thereon on the date of such vesting and shall be disposed of in the manner provided in sub-section (4); the encumbrances shall be paid out of the occupancy price in the manner provided in section 32Q for the payment of encumbrances out of the purchase price of the sale of land but the right of the holder of such encumbrances to proceed against the person liable, for the enforcement of his right in any other manner, shall not be affected ;
(b) the amount which was received by the transfer as the price of the land shall be deemed to have been forfeited to the State Government and it shall be recovered as on arrear of land revenue; and
(c) the Mamlatdar shall, in accordance with the provisions of section 63A determine the reasonable price of the land.
(4) After determining the reasonable price, the Mamlatdar shall grant the land on new and impartible tenure and on payment of occupancy price equal to the reasonable price determined under sub-section (3) in the prescribed manner in the following order of priority :-
(i) the tenant in actual possession of the land;
(ii) the persons or bodies mentioned in the order given in the priority list;
Provided that where the transfer of land was made by the landlord to the tenant of the land and the area of the land so transferred together with the area of the land, if any, cultivated personally by the tenant did not exceed the ceiling area then -
(i) if the amount received by the transferor as the price of the land is equal to or less than the reasonable price, the amount forfeited under sub-section (3) shall be returned to the transferor and the land restored to the transferee on payment of a penalty of rupee one in each case; and
(ii) If the amount received by the transferor as the price of the land is in excess of the reasonable price, the Mamlatdar shall grant the land to the transferee on new and impartible tenure and on payment of occupancy price equal to one-tenth of the reasonable price and out of the amount forfeited under sub-section (3), the transferor shall be paid back an amount equal to nine-tenths of the reasonable price.
(5) The amount of the occupancy price realised under sub-section (4) shall, subject to the payment as aforesaid of any encumbrances subsisting on the land, be credited to the State Government :
Provided that where the acquisition of any excess land was on account of a gift or bequest, the amount of the occupancy price realized under sub-section (4) in respect of such land shall, subject to the payment of any encumbrances subsisting thereon, be paid to the donee or legatee in whose possession the land had passed on account of such acquisition.
Explanation.-
For the purposes of this section "new and impartible tenure" means the tenure of occupancy which is non-transferable and non-partible without the previous sanction of the Collector."
7. In the present case, admittedly no determination was made by the Tribunal about the price of the land to be paid by the tenant as prescribed under Section 32G of the Act. Though the sale of agricultural land was to be made in favour of the tenant, the land owner did not apply to the Tribunal for determination of the reasonable price as required under Section 64 of the Act. Such law having violated, the Mamlatdar initiated a proceeding under Section 84C of the Act, but on the ground that it was sold to the tenant, regularized the sale by imposing a fine of Re.1/- on the owner. Accordingly, Entry No. 951 dated 5.1.1963 was recorded in favour of Shri Punjabhai Padhiyar, the tenant, who purchased the land.
8. Said Shri Punjabhai Padhiyar, the tenant, expired on 25.3.1975 and his legal heirs were brought on record by Entry No. 1746 dated 26.4.1975. Legal heir Ranchhodbhai Punjabhai Padhiyar executed an agreement of sale in favour of some parties giving rise to a suit which was finally settled between the parties. Said Shri Ranchhodbhai Punjabhai Padhiyar, the legal heir of the tenant, and family members filed Tenancy Case No. 365 of 2004, as the land was shown to be a new tenure land (restricted tenure).
The aforesaid Tenancy Case No. 365 of 2005 was allowed by the Mamlatdar & ALT on 23.2.2005 and it was shown that by mistake the Talati-cum-Mantri mentioned the land as 'new tenure land' and thus ordered to record the land as 'old tenure land' (unrestricted tenure). Within four months thereafter, the heir of said tenant Shri Ranchhodbhai Punjabhai Padhiyar and family members executed a registered sale deed in favour of the appellants on 10.6.2005.
9. The Deputy Collector, Vadodara having come to know of the fact and being empowered initiated suo motu proceedings against the heirs of said Shri Punjabhai Padhiyar (the original tenant), to reconsider the order dated 23.4.2005. By order dated 14.7.2006, the Deputy Collector having found the transfer illegal, set aside the order passed by the Mamlatdar & ALT in Tenancy Case No. 365 of 2004 dated 23.4.2005.
10. Though the appellants claim to have purchased the land by a registered sale deed dated 10.6.2005, but they did not chose to prefer any revision application, the heir of Shri Ranchhodbhai Padhiyar preferred Revision Application No. 228 of 2006 which came to be dismissed by the Gujarat Revenue Tribunal, Ahmedabad on 21.8.2008. It is only thereafter that the appellants preferred the writ petition - Special Civil Application No. 788 of 2009 which having dismissed, the present appeal has been preferred.
11. Mr Mihir Thakore with Mr Percy Kavina, learned senior counsel with Mr Amar Mithani, appearing on behalf of the appellants, would contend that original landlord Bai Chanchalben, the widow, had not executed the sale under any of the provisions of the Bombay Tenancy & Agricultural Lands Act, 1948. It is not governed under Section 17B or or 32 or 32F or 32I or 32-O or 32U or 43-I or 88E of the Act. Therefore, according to the appellants, the sale does not come within the purview of the restricted tenure under Section 43 of the said Act.
However, the learned counsel for the appellants will accept that the sale was in contravention of sub-sections (1) and (2) of Section 64 of the Act and thereby was liable to be declared invalid under sub-section (8) of Section 64 of the Act.
12. He would contend that as the sale was in contravention of sub-sections (1) and (2) of Section 64, proceeding under Section 84C of the Act was initiated being RTS No. 12/62. Notices were issued to seller Bai Chanchalben and purchaser Punjabhai Dasabhai Padhiyar. In the said case, in terms with the proviso to sub-section (2) of Section 84-C, the sale was not declared invalid, having not made in violation of any other provisions except Section 84(1) and, therefore, the sale was regularized by imposing a fine of Re.1/-, and Entry No. 951 having made in favour of the purchaser - tenant - Punjabhai Padhiyar on 5.1.1963. However, there being an objection raised by the tenant relating to defects in the entry about the nature of the land which was wrongly shown as 'new tenure' land, the objection petition was allowed and the orders were passed. Thereafter, the tenant who purchased the land - Punjabhai Padhiyar, died leaving behind his heirs, who executed a sale deed in favour of the appellants on 24.5.2005, registered on 10.6.2005. Therefore, the sale deed executed by the heirs of tenant - purchaser Punjabhai Padhiyar was not in contravention of any of the provisions of the Act.
13. According to Ms Krina P calla, learned AGP appearing on behalf of the respondents, under Section 32(1), as on 1.4.1957, every tenant, including Punjabhai Padhiyar, is deemed to have purchased from his landlord free from all encumbrances subsisting thereon on the said day, the land held by him as tenant. In such circumstances, under Section 32G, the Tribunal was required to issue notice for determination of the price of the land. In the present case as the tenant - Punjabhai Padhiyar has not given in writing his unwillingness to purchase the land under Section 32(1), he is deemed to have purchased the land, even if the consideration amount as paid is less and the land was registered subsequently. Therefore, according to the learned AGP, the sale of the land by the landlord to the tenant was in violation of Section 43 of the Act.
14. Per contra, according to the learned senior counsel for the appellants, Section 32 is not attracted, the landlord being a widow and being protected under Section 32F(1)(a) read with Section 31(3) of the Act; the tenant during the life time of the widow cannot be deemed to have purchased the land. He also referred to the amendment as made by inserting sub-section (4)(b) of Section 31 of the Act.
15. From the submissions as made on behalf of the parties and the record, it will be evident that Punjabhai Padhiyar was the tenant of the land in question and deemed to have purchased the land on 1.4.1957. Under Section 32F, the right of the tenant to purchase the land from the widow could have arisen, only as per the said provision, which reads as follows :-
"32F. Right of tenant to purchase where landlord is minor, etc., - (1) Notwithstanding anything contained in the preceding sections,-
(a) Where the landlord is a minor, or a widow, or a person subject to any mental or physical disability the tenant shall have the right to purchase such land under section 32 within one year from the expiry of the period during which such landlord is entitled to terminate the tenancy under section 31 :
Provided that were a person of such category is a member of a joint family, the provisions of this sub-section shall not apply if atleast one member of the joint family is outside the categories mentioned in this sub-section unless before the 31st day of March, 1958 the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated, having regard to the area, assessment, classification and value of the land, in the same proportion as the share of that person in the entire joint family property, and not in a larger proportion."
16. In the present case, admittedly, before transfer of the land, no determination of price of the land was made by the Tribunal as per Section 32G of the Act, which is applicable to the tenant under Section 32 as also other interested persons. Therefore, the sale was made in contravention of Section 32G of the Act.
The learned counsel for the appellants would contend that the tenant purchased the land not as a tenant as stipulated under Section 32 of the Act. He purchased as other interested person. If such argument is accepted that the tenant cannot be treated to be a tenant, but other interested person for the purpose of purchase of the land, then the appellants cannot derive the advantage of the proviso to sub-section (2) of Section 84C of the Act. The sale could not have been regularized by imposing a fine of Re.1/- which is applicable only in the case of sale if made in favour of the tenant.
17. As we hold that the provision of Section 32G was not followed and thereby the person purchased as other interested person either under Section 32 or Section 32F of the Act, such sale being in contravention of sub-section (1) of Section 43, under sub-section (2) of Section 43, such transfer is invalid.
18. Under Section 43, there is a restriction on transfer of the land purchased or sold under the Act. The tenant could have purchased the land under Section 32 or 32F, as the case may be, but inspite of the restriction made thereunder that no land or any interest therein can be purchased by a tenant under the said provisions, the sale deed was executed by the landlord on 10.6.2005 in favour of the tenant in violation of Section 43 of the said Act.
19. The learned counsel for the appellants has accepted that Section 64 which relates to sale of agricultural land to a particular person after application to the Tribunal to determine the reasonable price of the land, was not followed. Therefore, under sub-section (8) of Section 64, the sale having made in contravention of Section 64(1) and Section 44 is not followed, such sale being invalid, the Mamlatdar under sub-section (2) of Section 84C was required to declare the sale invalid and in absence of determination of the price of the land as to whether the price of the land was equal to or less than the reasonable price determined under Section 63A or the amount received by the landlord as the price of the land is in excess of the reasonable price determined under Section 63A, the Mamlatdar had no jurisdiction to validate the invalid transfer under clause (i) of sub-section (2) of Section 84C.
20. All the aforesaid facts having come to the notice of the Deputy Collector, who was empowered to revise the order suo motu under the revisional jurisdiction, if interfered with the matter and altered the decision of the Mamlatdar & ALT, the learned Single Judge rightly refused to interfere with the said order.
21. In view of the discussions as made above, and as we find that the transfer itself was invalid by virtue of Section 64(8) of the Act and the procedure under clause (1) of sub-section (2) of Section 84C was not followed before imposing a penalty of Re.1/-, no relief can be granted in favour of the appellant - petitioners, who were the successive purchasers from the tenant in whose favour the land was illegally transferred. In absence of any merit, the appeal and the Civil Application both are dismissed, but there shall be no order as to costs.
[S.
J. MUKHOPADHAYA, CJ.] [J.
B. PARDIWALA, J.] In view of the reasoning given in the judgment, we are not inclined to stay the judgment delivered today.
[S.
J. MUKHOPADHAYA, CJ.] [J.
B. PARDIWALA, J.] sundar/-
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Title

Dhirajlal vs State

Court

High Court Of Gujarat

JudgmentDate
27 April, 2011