IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10350 of 2008 With SPECIAL CIVIL APPLICATION No. 2097 of 2009 For Approval and Signature:
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= SANTABEN MANEKBHAI RESHAMWALA - Petitioners Versus BHARAT FAKIRBHAI PATEL & 4 - Respondents ========================================================= Appearance : In S.C.A. No.10350 of 2008 MR AJ PATEL SR. COUNSEL WITH MR SHITAL PATEL for Petitioners : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4, 1.2.5,1.2.6 RULE SERVED for Respondents : 1 - 5.
MR ASPI M KAPADIA for Respondents : 1, MR PERSY KAVINA, Sr. Advocate WITH MR VIRAL SHAH for Respondent : 1/1, MR H.K.PATEL AGP for Respondent : 2, MR AS VAKIL for Respondent : 5, Appearance : In S.C.A. No.2097 of 2009 MR ASPI.M. KAPADIA for Petitioners : 1-1/1 D.S. AFF. NOT FILED (N) : 1, 2-3, 4, 6 MR SHITAL R PATEL : 3/1-3/6 MR H.K.PATEL AGP for Respondent : 1,9,10,16, MR AS VAKIL for Respondent : 5,18,19,20 MR SANJANWALA SR. COUNSEL WITH MR DILIP L KANOJIYA for Respondent: 7 ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 31/08/2012 COMMON CAV JUDGMENT
1. These two petitions have been heard together, as they involved inter connected question of law and facts in respect of the same subject matter i.e. land bearing Survey No.248 of Moje: Village Sultanabad, Taluka Choriyasi, District: Surat, hence they were heard together and are being disposed of by this common judgment and order.
2. The petitioner of Special Civil Application No. 10350 of 2008 is the respondent No. 3 in Special Civil Application No. 2097 of 2009 and the original petitioner of Special Civil Application No. 2097 of 2009 happened to be the respondent No. 1 in Special Civil Application No. 10350 of 2008 and in both the petitions, by way of petitions under Article 226 of the Constitution of India, the petitioners have challenged the judgment and order dated 11.07.2008 passed by the Gujarat Revenue Tribunal, Ahmedabad in Revision Application No. TEN.BS.176/2006. As the impugned order in both these petitions is same, both the Special Civil Applications were heard together and are being disposed of by this common judgment and order.
3. Prayers made in these two petitions deserve to be set out as under;
Prayers in S.C.A. No.10350 of 2008
(A) This Hon'ble Court may be pleased to admit and allow this Special Civil Application;
(B) This Hon'ble Court may be pleased to issue a writ of mandamus and/or any other appropriate order or direction analogous to mandamus quashing and setting aside the order dated 11.07.2008 passed by the Gujarat Revenue Tribunal, Ahmedabad in Revision Application No. TEN/BS/176/2006;
(C) Pending admission hearing and final disposal of the petition, this Hon'ble Court may be pleased to stay the execution, implementation and operation of the order dated 11.07.2008 passed by the Gujarat Revenue Tribunal, Ahmedabad in Revision Application No. TEN/BS/176/2006;
(D) This Hon'ble Court may be pleased to pass such other and further order in the interest of justice, that may be deemed fit in the facts and circumstances of the case.
Prayers in S.C.A. No.2097 of 2009
7. The petitioner prays that this Hon'ble Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction and be pleased:-
(A) to quash and set aside the impugned order dated 11.07.2008 passed by the Gujarat Revenue Tribunal in Revision Application No.176 of 2006 to the extent that it states that the land has not been restored back to its original position as per the provisions of Section 84(C)(2) of the Tenancy Act and that the land has vested in the Government;
(B) Pending the hearing and final disposal of this Special Civil Application, to stay the execution, operation and implementation of the impugned order dated 11.07.2008 passed by the Gujarat Revenue Tribunal in Revision Application No.176 of 2006 to the extent that it states that the land has not been restored back to its original position as per the provisions of section 84(C)(2) of the Tenancy Act and that the land has vested in the Government;
(C) to grant such other and further reliefs as this Hon'ble Court deems fit and proper in the facts and circumstances of the case;
(D) to award costs of this petition;
4. Facts leading to filing of Special Civil Application No.10350 of 2008 deserve to be set out as under:
4.1 It is the case of the petitioner of Special Civil Application No. 10350 of 2008 - respondent no. 3 in Special Civil Application No. No. 2097 of 2009 that he being an agriculturist owned
District, purchased the land bearing Survey No. 248, admeasuring 3 hectares 71 Are 30 sq.mt. Of moje: Village Sultanabad, Taluka: Choriyasi, District: Surat from the respondent No. 1. That the registered sale deed effected on 5.5.1990 in favour of the petitioner and mutation entry No. 1641 was also entered and certified into village form no. 6 on 29.4.1992. On execution of sale deed, the petitioner was inducted on the land in question. The original seller respondent no. 1 herein also made a registered declaration before the office of the Sub-registrar, Surat that she executed sale deed with the petitioner.
4.2 That the aforesaid mutation entry was taken in suo-motu revision on RTS side in year 1996 after a lapse of six years period and RTS/Revision/Case No. 656/Sultanbad/1641/ Choriyasi was registered. In the said RTS Revision Case, the Collector, Surat by his order dated 1.9.1996 cancelled the entry on the alleged ground that the sale executed in favour of the petitioner was in violation of Section 2(6) and Section 63 of the Bombay Tenancy & Agricultural Lands Act, 1948 and also directed the Mamlatdar and ALT to initiate proceedings under Section 84C of the Tenancy Act after a lapse of six years, which as per submissions of the petitioner, could not have been done as it was without jurisdiction.
4.3 That the Mamlatdar and ALT initiated proceedings under Section 84C of the Tenancy Act after a lapse of six years by registering a case being Tenancy Case No. 171 of 1996. As submitted by the petitioner this was without jurisdiction as per the law laid down by the Supreme Court of India and no proceedings could have been initiated after a period of six years. Thus, petitioner submitted that the entire proceedings were without jurisdiction and, therefore, the proceedings were not maintainable in the eye of law. This has not been appreciated by the Gujarat Revenue Tribunal.
4.4 That the petitioner also agreed before the Mamlatdar that the petitioner was prepared to restore status-quo ante without going into legality of the transaction if the respondent No.1 is agreeable to return the sale consideration at the relevant time. However, the original seller did not agree to anything and conditional statement had not acted upon and became inoperative. It appears that thereafter some order has been passed by the Mamlatdar, admittedly a copy of which was not communicated to the petitioner.
4.5 That this order was never communicated to the petitioner nor any entry was made in the revenue record about such order for a period of more than 8 years after the alleged order was passed. That notice was given to the petitioner of taking possession in the year 2005. It is submitted on behalf of the petitioner that from said notice it is clear that up to 2005 the order was not executed at all and therefore, it would straightway fall in the amendment of 2000.
4.6 The petitioner on coming to know about the order of Mamlatdar and ALT and aforesaid development immediately filed an Appeal before the Deputy Collector, Choriyasi Pranth being Tenancy Appeal No. 16 of 2005 on 24.5.2005 along with an application for condonation of delay as it is submitted by the petitioner that said order of Mamlatdar was never communicated to the petitioner and therefore, there was no question of delay at all. The delay was condoned by the Deputy Collector while disposing of the Appeal and the order impugned therein was quashed and set aside vide order dated 20.07.2006, with a direction to Mamlatdar and ALT to examine the matter to ascertained as to whether petitioner was agriculturist or not at the relevant time, in view of the provisions of law.
4.7 It is the case of the petitioner as stated in the memo of petition that the original vendor lacked competence or right to file appeal before the Tribunal as per the law laid down in case reported in 23(2) GLR 212 and 2003(1) GLR 562, Revision Application No. 176 of 2006 came to be filed by the respondent no. 1 and the Tribunal has entertained said Revision Application and passed an order on 11.7.2008 by allowing the Revision Application and quashed and set aside the order of the Deputy Collector. It is also the case of the petitioner that pursuant to the order of the Deputy Collector, which was impugned before the GRT, the Mamlatdar initiated the proceedings and registered Remand Case No.
83 of 2006 and before the aforesaid Revision could be filed and decided, the Mamlatdar had already passed the order holding that there is no violation of Section 2(6) and Section 63 of the Tenancy Act and said order of Mamlatdar after remand was produced before the GRT at the inception of the preliminary hearing. Thus, as submitted by the petitioner, the order impugned was already implemented and executed and therefore, Revision Application could not have been entertained by the Tribunal and prayed to quash and set aside the order of the GRT.
4.8 Learned counsel for the petitioner in Special Civil Application No. 10350 of 2008 – respondent no.3 in Special Civil Application No.2097 of 2009 has submitted that if the order of the Mamlatdar was required to be taken in suo motu revision under Section 76A of the Tenancy Act, then, notice was required to be issued to all the parties concerned and that has not been done in the present case. It is also submitted by learned advocate for the petitioner that as such no notice whatsoever was given about so- called review proceedings alleged under Section 76A of the Tenancy Act and as such this of the Deputy Collector could not even remotely be branded as an order under Section 76A of the Act and therefore, the Tribunal has wrongly relied upon a communication dated 22.10.2001 of the Deputy Collector, Surat. Learned counsel for the petitioner has also submitted that the proceedings under Section 84C of the Tenancy Act initiated after a period of six years from the date of transaction and same is not permissible under law as per judgment reported in 1997(6) SC p-71. Learned counsel has also submitted that Tribunal has also failed to consider the amendment of 1995 and 2000 though the amendment of 2000 was already on statute-book and also submitted that order passed by the Mamlatdar had not become final up to 2005 because notice for taking over of possession was given in May, 2005 and therefore, the said order remained un- executed and finality could not have been attached to the order unless and of course the possession was taken and the matter is finally concluded. Learned counsel for the petitioner has also submitted that the impugned order has been passed nearly after a period of one year from the date of conclusion of hearing of the matter and therefore, only on a ground of long delay in delivery of judgment itself is a ground for setting aside of impugned order. Learned counsel for the petitioner has also submitted that the proceedings were initiated sometime in 1997, 1995 amendment was already on statute book and when the matter was disposed of, amendment of 2000 was also on the statute book and therefore, the impugned order is without consideration of the amended provisions of law.
4.9 Learned counsel for the petitioner submitted that the land in question was purchased on 5.5.1990, entry of sale was certified in 1992 and proceedings under Section 84C was initiated by the Mamlatdar and ALT in 1996 after 4 years being a Tenancy Case No. 171 of 1996 and therefore, there is a delay in initiation of proceedings and therefore, impugned order is required to be quashed and set aside and relied upon the decisions (i) 1997(6) SCC 71, (ii) 1999(3) GLR 2044, (iii) 2007(11) SCC 363.
4.10 Learned counsel for the petitioner has submitted that the Tenancy Act was amended by Amending Act of 1995 and restriction of 8 km was lifted. It was further amended in 2000 by making the amendment to have retrospective operation and at the time of initiation of proceeding in 1996, the amending act of 1995 was already on the statute book and case of petitioner fell within the scope of Amendment of 1995.
4.11 Learned counsel for the petitioner has submitted that this Court has taken a consistent view that a person, who sells his land and pockets the sale consideration, has no right to complain about his own transaction and hope for return of the land. On the contrary, this Court observed that when the sale is upheld by the authority, seller should be happy because it is his own solemn transaction gets upheld and therefore, he cannot be aggrieved person. Learned counsel has also submitted that the respondent do not fall within the scope of the priority list and therefore, he has no locus and in support of this contention, he has relied upon the decisions reported in (i) 2011(3) GLH 98, (ii) 23(2) GLR 213, (iii) 2003(1) GLR 562(DB), (iv) 2005(2) GLH 14 (DB).
5. Facts of Special Civil Application No. 2097 of 2009 deserve to be set out as under:
5.1 It is the case of the petitioner in Special Civil Application No. 2097 of 2009 – respondent no.1 in Special Civil Application No. 10350 of 2008 that the petitioner is the original owner of the land in question and the son of respondent No.3, Mr. Ajay Maneklal Reshamwala purporting to be the power of attorney of the petitioner had executed a registered sale deed dated 5.5.1990 in respect of the land of respondent no. 3 and mutation entry No. 1641 dtd 29.4.1992 was made in the revenue record. It is the case of petitioner that the Collector, Surat, taking the matter in Revision, by his order dated 1.9.1996 cancelled the mutation entry No. 1641 on the ground that the sale was in violation of section 2(6) and Section 63 of the Tenancy Act and also ordered the Additional Mamlatdar to initiate proceedings under Section 84C of the Tenancy Act. The Mamlatdar initiated the Tenancy Case for determining whether the respondent no. 3 was an agriculturist and whether the sale of the land was in violation of Section 63 of the Tenancy Act. In said proceeding, the respondent no. 3 appeared and gave his evidence and Mamlatdar vide order dated 7.4.1997 held that sale of land in favour of respondent no.
3 was in violation of the provisions of Section 2(6) and 63 of the Tenancy Act and Additional Mamlatdar, as per provisions of Section 84C(2) granted three months time to restore the land to its original position and in case the land was not restored, the land was ordered to vest in the State Government and pursuant to said order, the respondent no. 3 had restored the land to its original position as per the provisions of Section 84(C)(2) of the Tenancy Act.
5.2 As stated in the memo of petition, it is the case of petitioner that against aforesaid order, the respondent no. 3 preferred appeal on 24.5.2005, after a period of about 8 years and the respondent no. 3 in his application for condonation of delay had not made out any sufficient cause for condonation of delay. The Deputy Collector by his order dated 20.7.2006 in Tenancy Appeal No. 16 of 2006 had condoned the delay and remanded the matter back to Additional Mamlatdar for inquiring whether the respondent no.
3 is holding agricultural lands. The Deputy Collector has also set aside the mutation entry No. 3215 dated 5.7.2005 made in the record of rights. The petitioner had challenged the said order dated 20.7.2006 passed by Deputy Collector by filing Special Civil Application No. 24517 of 2006 before this Court and said Special Civil Application was dismissed by this Court vide order dated 28.11.2006 on the ground of availability of alternative remedy of revision under Section 76 of the Tenancy Act. Against said order, LPA No. 1537 of 2006 was preferred before this Court and Division Bench of this Court not entertained said LPA on the ground of availability of alternative remedy and by its order dated 12.12.2006 dismissed the LPA. Accordingly, the petitioner preferred Revision Application No. 176 of 2006 before the GRT on 30.12.2006 challenging the order dated 20.7.2006 passed by the Deputy Collector. It is the case of the petitioner that pursuant to order dated 20.7.2006 of the Deputy Collector, the Mamlatdar and ALT had initiated proceedings being Tenancy Case No. 83 of 2006 and vide order dated 29.12.2006 held that there is no breach of provisions of Section 2(6) and 63 of the Tenancy Act. It is the case of the petitioner that petitioner came to know of said order dated 29.12.2006 after filing of Revision Application in the GRT and therefore, the petitioner moved an application for amendment in Revision Application but said application was not decided by the GRT. It is the case of petitioner that respondent no.3 has sold the land to the respondent no. 5 by a sale deed dated 7.8.2006 and the respondent no. 5 has in turn again purported to have sold the land in favour of respondent no. 6 Shri Vallabhbhai Dhanjibhai Vaghasia and respondent no. 7 Smt.
Chandrikaben Manubhai Balar by executing a registered sale deed dated 6.11.2006. The GRT vide its order dated 11.7.2008 partly allowed the Revision Application by setting aside the order dated 20.7.2006 of the Deputy Collector, Choriyasi Prant, Surat in Tenancy Appeal No. 16 of 2005. The petitioner is filing this Special Civil Application challenging said order dated 11.7.2008 to the extent that it states that the land has not been restored back to its original position and that the land was vested in the Government.
5.3 Learned counsel appearing for the petitioner in Special Civil Application No. 2097 of 2009 – respondent no.1 in Special Civil Application No. 10350 of 2008 has submitted that pursuant to the order of the Additional Mamlatdar, the land has been restored back to its original position by the respondent no. 3, as per the provisions of Section 84(C)(2) of the Tenancy Act and that the land has been resumed by the petitioner – Nikiben and thereby she has become the owner of the land and the rights in the land have vested in her. The issue of restoration of the land under the provisions of Section 84(C)(2) of the Tenancy Act was not the subject matter of the Revision Application before the GRT and therefore, the petitioner had no opportunity to prove said issue and therefore the observation of the GRT that the land has not been restored back to its original position and that the land has vested in the Government is without jurisdiction and also in violation of the principles of natural justice.
5.4 Learned counsel appearing for petitioner has also submitted that the Collector, Surat in exercise of powers under Section 76A of the Tenancy Act had exercised his revisional powers and had confirmed the order dated 7.4.1997 of the additional Mamlatdar and ALT by his letter dated 10.9.2001. Once the Collector exercised his revisional powers, an appeal under Section 74 to the Collector or the Deputy Collector become incompetent and said proposition is laid down by this Hon'ble Court in the judgment reported in 2006(3) GLH 195 in case of State of Gujarat Vs. Bai Jadavben.
6. Learned AGP has supported the impugned order and submitted that the GRT was right in holding that the Deputy Collector had erred in condoning the delay of about 8 years in preferring the appeal and said conclusion of the Tribunal is supported by good reasons and the said finding is not required to be interfered with under the discretionary jurisdiction of this Hon'ble Court.
7. Learned AGP appearing for respondent nos. 2 to 4 in Special Civil Application No. 10350 of 2008 submitted that the land in question belonged to Naniben Durlabhbhai Patel and said land had been sold to the present petitioner in the year 1991 vide registered sale deed No.214 on 11.5.1991. Thereafter, 1641 was mutated in revenue record on 29.4.1992. Thereafter Collector, Surat had taken entry into suo-motu revision on 02.6.1995 and the Collector, Surat had passed the order in RTS Revision Application No. 656 dated 1.9.1996 cancelled the said entry and he has passed further order that the Mamlatdar and ALT to proceed the proceedings under Section 84C of the Tenancy Act. Thereafter as per the direction of the Collector, Mamlatdar and ALT had initiated under Section 84C by the Tenancy Case No. 171 of 1996 and also submitted that the Mamlatdar and ALT Choriyasi had passed the order dated 7.4.1997, the land had purchased by the petitioner without considering the provisions under the Tenancy Act and therefore, the breach of condition of Sections 2(6) and 63 of the Tenancy Act, therefore, it is required to restore in original position and if the same had not been completed within 3 months then the land would vest in the Government and said order of Mamlatdar and ALT was confirmed by the Collector. Learned AGP has submitted that order passed by the Deputy Collector dated 20.7.2006 was challenged by the respondent no. 1 before this Court by filing Special Civil Application No. 24512 of 2006, which was dismissed by this Court vide order dated 28.11.2006 and against said order Letters Patent Appeal No. 1537 of 2006 was preferred by respondent no. 1 and same was dismissed on 12.12.2006 with certain observation to file Revision Application before the Gujarat Revenue Tribunal and accordingly, the respondent no. 1 has filed Revision Application No. 176 of 2006 before the Gujarat Revenue Tribunal and same was partly allowed by the GRT by setting aside the order passed by the Deputy Collector in Tenancy Appeal No. 16 of 2005 and confirmed the order passed by the Mamlatdar and ALT in Case No. 171 of 1996 dated 7.4.1997.
8. Learned counsel appearing for respondent no. 5 in Special Civil Application No. 10350 of 2008 submitted that as stated in the affidavit in reply filed by respondent no. 5, he is supporting the case of petitioner and adopt all the contentions and submissions advanced in the memo of petition. However he submitted that the land in question originally belonged to respondent no. 1. She agreed to sell the land in question to present petitioner for a sum of Rs.8,25,000/- and she received full consideration of Rs.8,25,000/- from Manekbhai Rashamwala and she executed power of attorney in favour of Ajaykumar Maneklal Reshamwala son of original petitioner. On the basis of said power of attorney, a registered sale deed was executed on 5.5.1990 in favour of original petitioner and mutation entry No. 1641 dated 29.4.1992 was made in the revenue record. The said entry No. 1641 was taken in suo-motu revision in RTS/Revision/Case No. 656/ Sultanabad/ 1641/ Choriyasi, by the Collector, Surat in the year 1996 after lapse of 4 years and by order dated 1.9.1996 cancelled the entry No. 1641 on the alleged ground that the sale executed in favour of petitioner was in violation of Section 2(6) and Section 63 of the Tenancy Act and further directed the Additional Mamlatdar to initiate proceedings under Section 84C of the Tenancy Act. Learned counsel for the respondent no. 5 has also relied upon the decision in case of Evergreen Cooperative Societies Limited case, reported in 1991(1) GLR 113, judgment reported in 1999 GLR 2527, 1997(1) GLR 50 and submitted that the order of the Collector was contrary to law. Therefore, order of the Collector was challenged before SSRD and SSRD by order dated 19.1.2000 quashed the order of Collector, Surat dated 1.9.1996 and said order of SSRD was challenged by the Collector before this Court by filing Special Civil Application No. 4073 of 2006 and same was dismissed by this Court and upheld the mutation entry No. 1641. In the meantime, pursuant to directions of the Collector, the Mamlatdar and ALT initiated 84C proceedings and in said proceedings, petitioner made a conditional statement that if it is found that the sale in favour of the petitioner is in violation of the provisions of the Tenancy Act, and further if seller returns the sale consideration, in that case, the petitioner will restore the status quo ante. The said statement appears to have been never implemented for various reasons. It is submitted by respondent no. 5 that by virtue of said statement, the respondent was under the belief that due to interim stay order passed by the SSRD produced before the Mamlatdar and ALT, the Mamlatdar and ALT would stay his hands till the resolution of RTS dispute. However, it appears that there is an order passed by the Mamlatdar on 7.4.1997 about which the petitioner raised serious doubt because the said order was never communicated to the petitioner by the office of the Mamlatdar and ALT at any point of time. It is submitted that when the Mamlatdar and ALT issued a notice for the purpose of taking possession of the land in question from the petitioner, he came to know about the order dated 7.4.1997 passed by the Mamlatdar and ALT. He has also submitted that in the order of the Mamlatdar and ALT it was mentioned that order be sent to Talati and all the parties but record and proceedings do not show that Talati was ever received any such order passed by the Mamlatdar and ALT prior to 19.4.2005 and also said order was not sent to parties. Learned advocate appearing for respondent no.5 submitted that from the date of notice dated 19.4.2005 directing the petitioner to hand over possession of land in question, the petitioner preferred Appeal before the Deputy Collector on 24.5.2005 and the Deputy Collector passed an order dated 20/25.7.2006 in detail considering various judgments and observed that the order dated 9.4.1997 in Tenancy Appeal No.
171 of 1996 was never communicated. It is the case of respondent no. 5 that he has purchased the land in question as bonafide purchaser by registered sale deed dated 5.10.2006 after verification of order and the revenue record, title possession and thereafter he has sold the land in question to Chandrika M. Balar and Vallabh D. Vaghasiya by registered sale deed. He further submitted that as submitted above, he is supporting the case of the petitioners and adopt all the contentions and submissions made by petitioner and therefore, this court is not elaborately discussed the affidavit filed by respondent no. 5.
9. This court has heard learned counsels for the parties and perused the documents produced on record.
10. Before adverting to the rival submissions of the learned counsels appearing for the parties, the relevant provisions of law is need to be set out as under;
The Bombay Tenancy and Agricultural Lands Act, 1948, 2. Definitions. - In this Act, unless there is anything repugnant in the subject or context,-
(2) “agriculturist” means a person who cultivates land personally;
[(2A) “allied pursuits” means dairy farming, poultry farming, breeding of livestock, grazing [(other than the pasturage of one’s own agricultural cattle)] and such other pursuits as may be prescribed;
(2B) “appointed day” means the 15th day of June 1955;
(2C) “backward area” means any area declared by the State Government to be a backward area, being an area in which, in the opinion of the State Government, socially, economically and educationally backward classes of citizens predominate, and includes an area declared to be Schedule area under paragraph 6 of the Fifth Schedule to the Constitution of India;
(2D) “ceiling area” means in relation to land held by a person, whether as an owner or tenant or partly as owner and partly as tenant, the area of land fixed as ceiling area under Section 5 or 7:
(2E) “Collector” includes an Assistant or Deputy Collector performing the duties and exercising the powers of the Collector under the Bombay Land Revenue Code, 1879, (Bom. V of 1879) or any other officer specially empowered by the State Government to perform the functions of the Collector under this Act];
[(5) “to cultivate” with its grammatical variations and cognate expressions means to till or husband the land for the purpose of raising of improving agricultural produce, whether by manual labour or by means of cattle or machinery, or to carry on any agricultural operation thereon; and the expression “uncultivated” shall be construed correspondingly;
Explanation- A person who takes up a contract to cut grass or to gather the fruits or other produce of trees on any land, shall not on that account only be deemed to cultivate such land;] [(6) “to cultivate personally” means to cultivate land on one’s own account-
(i) by one’s own labour, or
(ii) by the labour of any member of one’s family, or
(iii) under the personal supervision of oneself any member of one’s family by hired labour or by servants on wages payable in cash or king but not in crop share, Being land, the entire area of which-
(a) is situate within the limits of a single village, or
(b) is so situated that no price of land is separated from another by a distance of more than five miles, or
(c) forms one compact block;
Section 63. Transfers to non-agriculturists barred.-
(1) Save as provided in this act,-
(a) no sale (including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenues 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 mortagee, 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 [for who being an 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 authorized 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.]
(2) Nothing in this section shall be deemed to [prohibit the sale, gift, exchange or lease, or the agreement for the sale, gift, exchange or lease, of] a dwelling house or the site thereof or any land appurtenant to it in favour of an agricultural labourer or an artisan [or a person carrying on any allied pursuit].
(3) Nothing in this section shall apply or be deemed to have applied to a mortgage of any land or interest therein effected in favour of a co-operative society as security for the loan advanced by such society [or any transfer declared to be a mortgage by a court under section 24 of the Bombay Agricultural Debtors’ Relief Act, 1947] (Bom. XXVIII of 1947).
(4) Nothing in section 63A shall apply to any sale made under sub-section (1)].
Gujarat Act No.4 of 1995 2. In the Bombay Tenancy and Agricultural Lands Act, 1948, in section 2, in sub-section (6),-
(1) for the portion beginning with the words “being land, the entire area” and ending with the words “one compact block” shall be deleted;
(2) the Explanation III shall be deleted.
Gujarat Government Gazette
1. Short title and commencement.- (1) This Ordinance may be called the Bombay Tenancy and Agricultural Lands (Gujarat Amendment Amending Ordinance, 2000.
(2) It shall come into force at once.
2. Guj. 4 of 1995 to be temporarily amended.- During the period of operation of this Ordinance, the Bombay Tenancy and Agricultural Lands (Gujarat Amendment) Act, 1995 (hereinafter referred to as “the amending Act”) shall have effect subject to the amendment specified in section 3.
3. Amendment of section 2 of Guj. 4 of 1995.- In the amending Act, in section 2, for the words “shall be deleted” occurring at two places, the words “shall be and shall be deemed always to have been deleted” shall be substituted.
4. Abatement of legal proceedings.- All proceedings relating to any order made or purported to be made under section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as “the principal Act”) for contravention of provisions of section 63, so far as it relates to the breach of clause (6) of Section 2 of the principal act, pending before any court, tribunal or other authority or any such proceedings initiated by any such authority on or after the commencement of the amending Act shall stand abated notwithstanding anything contained in section
84C of the principal Act. (emphasis supplied)
5. Saving.- The amendment made by section 3 shall not affect the validity of any such order referred to in section 4, made by any court, tribunal or other authority before the date of commencement of the amending Act, which has become final.
Explanation._ For the purpose of this section, the word “final” means no appeal, revision or any other proceeding is pending before any court, tribunal or other authority against any such order on the date of commencement of the amending Act.
11. The close perusal of aforesaid provisions would clearly indicate that the certain impediment in agricultural land transactions were removed, as the limit of 8 K.M. was removed. The first amendment was published in official gazette on 06th April, 1995. The amendment was silent qua its effect, though ordinarily the amendment of the statute takes effect from either the date of publication and/or from the date that may be fixed in the amending statute. In the instant case, the amending statute did not contain any date as to its effect. Therefore, in the year 2000, an ordinance came to be issued further amending the provision of Bombay Tenancy and Agricultural Land (Gujarat Amendment) Act, 1995, which was known as Bombay Tenancy and
words occurring in the amending Act in Section 2 for the words “shall be deleted” occurring at two places were substituted and replaced by the words “shall be and shall be deemed” always to be have been deleted. The 2000 Ordinance contain Section 4 in respect of abatement of legal proceedings. It provides for abatement of all legal proceedings relating to any order made or purported to be made under Section 84 (C) of the Bombay Tenancy and Agricultural Land Act, 1948 in contravention of provisions of Section 63, so far as it relates to the breach of Clause 6 of Section 2 of the Principle Act, pending before any Court, Tribunal or other authority or any such proceedings initiated by any such authority on or after commencement of the amending act shall stand abated notwithstanding anything contained in Section 84(C) of the principal Act. The plain meaning of this abatement legal proceeding, would unequivocally go to show that the proceedings after the commencement of the amending Act shall abated. The setting Clause in form of Clause 5 needs to be construed properly. The Clause 5 read with explanation may indicate that the orders passed already and have attained finality, shall not be, however, reopened. This proposition of law is required to be borne in mind while examining the peculiar facts and developments in respect of the subject land.
12. It is important to note that the sale had taken place of the subject land on 05.05.1990. The mutation entry was certified in form of Entry No.1641 in the revenue record on 29.04.1992. The RTS Case No. 656/96 was registered wherein it was amending the order dated 10.09.1996 came to be passed holding that there was breach of Section 2(6) and Section 63 of the Tenancy Act. It did not end there and further direction was issued to Mamlatdar ALT to initiate proceeding under Section 84 (c) of the Tenancy Act. Accordingly, the tenancy proceedings under Section 84(c)(2) came to be initiated and the order was passed only on 07.04.1997. In other words, it can be said that the order under Tenancy Act under Section 84 for the first time came to be passed only on 07.04.1997 that is much after the amendment was brought on record.
13. The order of the authority under Section 84(C) (2) had an effect of restoring the land back to its original position within three months failing which the land was to vest in State. The serious dispute is raised by the original vendor who happens to be respondent through legal heirs and petitioner through heirs in other petition, contending that the land was restored and possession was given, whereas the purchaser contended that the order dated 07.04.1997, had not been communicated to the parties. It was never communicated at least to the purchaser, as there appears to be no record to indicate that it was duly served and executed. The purchaser filed proceedings in form of Tenancy Appeal No.16/05 on 24.05.2005. It is further required to be noted that by that time, the second amendment by way of clarification was already available on the statute whereunder the 1995 amendment was treated to be existing since the inception. The said appeal was allowed and the delay was condoned and the matter was remanded to Mamlatdar. That order of remand to Mamlatdar passed in Tenancy Appeal No. 16/05 was made on 20.07.2006. It is important to note that this order made on 20.07.2006, was assailed in this Court by the original vendor by filing petition in form of S.C.A. No.24517 of 2006, which came to be dismissed by this Court vide order dated 28.11.2006. In other words, the order dated 20.07.2006, was not interfered with by this Court. The order dated 20.07.2006, passed by learned Single Judge of this Court, was carried into appeal by the original vendor being L.P.A. No.1537 of 2006, which was also dismissed vide order dated 12.12.2006. However, while dismissing the L.P.A., the Division Bench observed that even if some delay is there due to bona fide steps taken, the delay deserve to be condoned, if the revision is filed before the Tribunal within three weeks. The vendor, thereafter filed proceedings in the form of revision application being Revision Application No.176 of 2006 before the Gujarat Revenue Tribunal on 30.12.2006. This revenue proceedings were admittedly filed after the competent authority i.e. Mamlatdar and ALT, decided the remand matter being remand matter no.83/06 vide order dated 29.12.2006. The order was placed on record by way of amendment and ultimately the GRT passed order on 11.07.2008 quashing the original order of 20.07.2006 and hence the present petition by both the sides namely the vendor and the purchaser. It is required to be noted at this stage that the proceedings against the cancellation of original entry no. 164/96 was challenged before the SSRD, who in turn quashed and set aside the order dated 01.09.1996 and restored the said entry. The writ petition was filed challenging the SSRD's order by the concerned Collector being S.C.A. No.4073 of 2006 which was dismissed by this Court.
14. Against the aforesaid backdrop of the development of incidents, question arises as to how far the GRT was justified in passing the order impugned in these proceedings. It is required to be reiterated at the cost of repetition that GRT's order dated 11.07.2008, was required to be challenged by both the sides namely the revisional applicant, original vendor, so far as, it did not hold in their favour that land was restored back to the vendor and also by the original purchaser, so far as it held that land vests in the State. It is also important to note, at this stage, that the land has thereafter changed.
15. The facts, as set out hereinabove clearly indicate that the transaction of land in question that is land bearing Survey No.248 of Moje: Village Sultanabad, Taluka Choriyasi, District: Surat, took place on 05.05.1990 and the revenue entry being Entry No.1641 came to be made and certified also. The sale was by registered sale deed executed on 05.05.1990. The entire sale is thus recorded in the village Form No.6 and other records on 29.04.1992. Thus admittedly the suo moto proceedings were initiated only in the year 1996 that is after the amendment of 1995 in Section 2(6) of the Tenancy Act was brought on record dispensing with the condition of land to be within the 8 KM radius. It is also required to be noted that the apex court and this court has time and again held that belated use of suo moto power of revision is impermissible. The apex court held in case of Mohmad Kavi Mohmad Amin Vs.Fatmabai Ibrahim reported in (1997)6 SCC 71 that in absence of any statutory time limit for invoking power it should be exercised only within reasonable time. The order was passed on 1.09.1996, pursuant whereof the Mamlatdar and A.L.T. initiated proceedings under Section 84C of the Tenancy Act in form of Tenancy Case No.
171 of 1996 and passed order on 7.04.1997, declaring that sale transaction being contrary to section 2(6) and Section 63 of Tenancy Act it was illegal and ordered restoration of land within three months. The petitioner as per their say in the petition also indicated their readiness for restoration on original vendor refunding the sale proceeds. The original owner has also contended that the land was so restored and she was put in possession and hence the Gujarat Revenue Tribunal (GRT for short) was not correct in concluding that land vests in State. The development of events and proceedings by parties lead to an interesting situation. The purchaser –petitioner in SCA 10350 of 2008 contended that this order dated 7.04.1997 passed by Mamlatdar and ALT in Tenancy Case on 171 of 19096 was never communicated to the petitioner nor was it acted upon in any manner by all the concerned including the revenue authorities no changes in revenue records indicative of execution of the order were carried out. The original vendor also could not produce any evidence that the order dated 7.04.1997 was executed and land stood restored to her except making bald statement that land stood restored no documentary evidences were produced nor was any attempt made to indicate and explain than how come land remained in actual possession of petitioner of SCA 10350 OF 08 who could transfer it and in turn the transferee also could sold it to other buyers namely respondent no. 5 and 6. Thus contemporaneous records evidence and findings collectively bring about one and only conclusion that despite the order dated 7.04.1997, the subject land remained in actual possession of the petitioner of SCA no. 10350 of 2008 and till he received notice in the year 2005 the order dated 7.04.1997 merely remained on paper without any consequential effect. The petitioner of SCA 10350 of 2008 assailed this order dated 7.04.1997 in Appeal No.16 of 2005 on 24.05.2005, with delay condonation application. The delay was condoned the appeal was allowed and the order dated 7.04.1997 was set aside with direction to the Mamlatdar and ALT to decide the issue afresh. Thus the order in Appeal no. 16 of 2006 passed on 20.07.2006 nullified effect if any of the order dated 7.04.1997. In fact as it is stated herein above that order is not proved to have been executed in any manner. It is most important to note that pursuant to the order dated 20.07.2006 the Competent Authority Mamlatdar and ALT initiated fresh examination of transaction by way of Remand case no. ALT Remand Case no. 83 of 2006 and held that transaction was not hit by any illegality calling for any further action.
16. The order impugned in these petitions dated 11.07.2008, is not tenable in eye of law for the following reasons namely;
(i) The Tribunal has not recorded in unequivocal terms findings qua the facts in the matter and on a major part of the order indicates that the Tribunal has gone on the presumption and conjuncture only.
(ii) The very important aspect in respect of the legality and validity of the proceedings which were under taken by the Collector in 1996 for reviewing the revenue entry is not finding appropriate discussion at all in the order impugned. The contention with regard to the suo motu revision was time barred and as result thereof the subsequent proceedings in form of tenancy proceeding being Tenancy Case No.171/96 was also initiated after unreasonable time clearly hit by the observation of the Supreme Court in case of Mohmad Kavi Mohmad Amin Vs.Fatmabai Ibrahim (supra) is not unfortunately adverted to by the Tribunal in its order. The decision cited at the bar in support of the submission that the revenue authorities and the authorities under Tenancy Act are not entitled to exercise suo motu power after inordinate delay without any cogent reason, could not have been overlooked by the Tribunal. The Tribunal was under obligation to advert to and give its reasoning for not accepting the proposition of law, which otherwise, in my view Tribunal was bound to accept.
(iii) The Tribunal has gone on presumption that the order dated 01.09.1996, was validly made though in fact the said order under which the revenue entry no.1641 was cancelled or revoked by way of suo motu review itself was seriously hit by the proposition of law against exercise of suo motu power after delay. The Tribunal ought to have adverted to these aspects.
(iv) As it is stated hereinabove, the Tenancy proceedings under section 84(c) in form of Tenancy Case No.171/96 had admittedly been initiated after the 1995 amendment came into being. Therefore, the question arises as to whether when Tribunal was examining the entire controversy when chequered history and orders by various authorities were existing on the record, how far Tribunal was justified in overlooking these aspects as been Tribunal was called upon to examining the orders. It was required to be noted that the original order of 01.09.1996 itself was revoked by the competent authority i.e. SSRD in revenue proceedings, as could be seen from the record and facts narrated hereiabove.
(v) The Tribunal proceeded on a presumption that the order dated 07.04.1997 was served upon the parties and for which the provision of presumption in Evidence Act is relied upon. The Tribunal has accepted the submission that the party asserting that the order is not served has to prove the same. The Tribunal, however, overlooked the fact that the revenue record and the record of the case of Tenancy Case No.171/96 was the proper source to record finding qua service of order dated 07.04.1997. In absence of any specific finding qua the service of the order of 07.04.1997, it would not have been proper for the Tribunal to just accept the submission of the other side that the vendor being educated person, could not have pleaded ignorance like a peasant. The Court is of the considered view that in absence of any specific finding by the Tribunal qua service of the notice or serving of the order of 07.04.1997, the further conclusion could not have been arrived at. The order, therefore, suffers from serious infirmity on this account.
(vi) Assuming for the sake of examining without holding that the Tribunal was justified in holding that the order dated 07.04.1997 was served. The question arises as to whether such order could have been passed and what is the effect of this order vis-a-vis the fact that the statute book and amendment in form of 1995 amendment whereunder the so called illegality, which was made basis for declaring the transaction illegal itself was nullified and when the Tribunal was examining the controversy, the amendment of 2000 was also on the record. All these aspects were required to be gone into detail by the Tribunal before straightway coming into conclusion against the petitioner.
(vii) The Tribunal has also concluded erroneously that the order of 1997 had attained finality and as the transaction had taken place prior to 1995, the benefit of amendment was not admissible to the parties transacting the deal. These reasoning is required to be viewed from the developments in the matter right from the transaction till the SSRD setting aside the order dated 01.09.1996, which had triggered off the entire controversy. The Tribunal has only cursorily gone into the matter and not adverted to the facts that the initial proceedings were initiated only after 1995 amendment was on record, when the proceedings were initiated under 1984, it was initiated in the year 1997 in for of Tenancy Case No.171/06 and at that time, the amendment of 1995 was very much on the record. The order which came to be passed was in the year 1997. To be more precise on 07.04.1997. Therefore, when this order was passed admittedly there was amendment on the statute book and the proceedings and order of 07.04.1997 is yet to be proved to be served upon the parties. The Tribunal's glossing over the facts and venturing into realm of surmises and conjuncture on the presumption that the parties cannot plead ignorance, is not sufficient for holding the same record, has to be made available for deciding this controversy. The Tribunal has not recorded that the order dated 07.04.1997 had in fact been served upon the parties.
(viii) The Tribunal has held clearly against the original vendor, accepting the submission of learned advocate for the present petitioner and the opponent therein in the revision application that the original vendor did not have any right to challenge the order. But, at the same time, the Tribunal has also fail to appreciate that the say of the vendor is that of restoration of the land pursuant to the order dated 07.04.1997. Therefore, before declaring that the land vests in the State, it was duty of the Tribunal to refer to the documentary evidences, if any, indicating that the order dated 07.04.1997 was duly served upon all the parties and as the parties did nothing for restoring the status qua ante within the period stipulated therein, the order became final. There appears to be no reference to any documentary evidences qua serving of the order dated 07.04.1997 to the parties. Therefore, there is a basic infirmity in the foundation on which the edifice is created and, therefore, the entire order suffers from patent illegality and is not tenable in eye of law.
17. The Court is of the considered view that the important aspects in the matters are required to be considered namely that the order dated 01.09.1996 in R.T.S. Proceedings 656/96 was hit by it being belatedly passed or belatedly initiated proceedings, as observed by the Supreme Court in case of Mohmad Kavi Mohmad Amin Vs.Fatmabai Ibrahim (supra). The said infirmity was repeated when the proceedings in form of Tenancy Case No.171/96 came to be initiated based upon the order dated 01.09.1996 resulting into passing of order dated 07.04.1997. When the order dated 07.04.1997 has not been proved to be served upon the parties, then there cannot be any presumption qua it attaining any finality. The subsequent developments could not have been overlooked and, therefore, this Court is of the considered view that the order of the Tribunal is required to be quashed and set aside
18. The order passed by the Tribunal is quashed in its totality on the reasoning mentioned hereinabove which would also indicate that the prayers made by the petitioner in S.C.A. No.2097 of 2009 also cannot be allowed and, therefore, required to be rejected, hence the S.C.A. No.10350 of 2008 is allowed. The S.C.A. No. 2097 of 2009 is rejected. Orders accordingly.
19. Rule is made absolute in S.C.A. No.10350 of 2009 and Rule is discharged in S.C.A. No.2097 of 2009. There shall be no order as to costs in both the petitions.
(S.R.BRAHMBHATT, J.)
Further Order
Shri Viral Shah, learned advocate appearing for heirs of respondent vendor makes request for continuing the interim relief which was continued in the proceeding with a view to take out appropriate remedy and, therefore, submits that interim relief be continued for a period of four weeks.
The request is strongly opposed by Shri Shital Patel, learned advocate appearing for the petitioners in S.C.A. No.10350 of 2008 on the ground that present respondent, who is joined himself newly, has no locus whatsoever, as original vendor has died since long. Be that as it may, the interim relief granted earlier shall continue for the period of 30 days from the date of receipt of copy of this order.
Pankaj
(S.R.BRAHMBHATT, J.)