1. This petition under Article 226/227 of the Constitution of India is directed against the order dated 21st December, 1999 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN.BA.644/94 whereby the order passed by the Assistant Collector, Dabhoi dated 9.6.1993 and that of the Mamlatdar and ALT dated 26.12.91 came to be confirmed.
It is the case of the petitioners that their fathers purchased the land bearing Survey No.
208 ad-measuring H.2, 50 Are, 91 Square Meters of village Tavra Taluka Vaghodia District Vadodara from respondent no.1 by registered sale deed dated 4.12.1979. Entry No. 1057 was effected in the revenue record in village form no.6 on 25.12.1979 and was certified on 28.1.1980 by the competent authority. The order certifying the entry in form no.6 is found at page 12. It is stated by the petitioners that after purchase of the land, they invested huge amount, developed the land and improved the fertility of the land.
2. As further averred in the petition, the Mamlatdar and ALT, after the period of more than nine years, initiated proceedings under section 84-C of the Bombay Tenancy and Agricultural Lands Act, 1948 (herein after referred to as “the Act”) on the ground that the transaction of sale and purchase in respect of the lands in question was in contravention of section 63 of the Act because the purchaser of the land Shri Narshi Jethabhai Patel – father of the petitioners was not agriculturist. In the said proceedings, the Mamlatdar and ALT passed order under section 84-C(2) of the Act to restore the position of the land and hand over the possession thereof to the original owners. Said order is dated 23.12.1990. Father of the petitioners challenged the order of Mamlatdar and ATT before the Deputy Collector by filing appeal which was partly allowed and the matter was remanded to the Mamlatdar and ALT to decide afresh.
On remand, the Mamlatdar & ALT again passed the same kind of order on 26.12.1992. In the said order, the Mamlatdar has come to the conclusion that the grand father of the petitioners was agriculturist but before the land in question was purchased by the father of the petitioners, grand father had sold away the land, therefore, father of the petitioners had ceased to be agriculturist and, therefore, the father of the petitioners was not agriculturist when he purchased the land in question on 4.12.1979. Accordingly, the Mamlatdar and ALT came to the conclusion that since the transaction in question was in breach of the provisions of section 63 of the Act, such transaction is required to be declared as invalid under sec. 84-C of the Act. Accordingly, above said order is passed by the Mamlatdar directing the father of the petitioners to restore the position of the land and hand over the possession thereof to the original owners within three months from the date of the order.
3. Father of the petitioner then challenged the said order of Mamlatdar and ALT before the Assistant Collector Dabhoi by filing Tenancy Appeal No. 27 of 1992. The Assistant Collector came to the conclusion that when the father of the petitioners purchased the land, he was not agriculturist, therefore, he could not have purchased the agricultural land. The sale in favour of the father of the petitioners was in breach of sec. 63 of the Act, therefore, Mamlatdar and ALT has not committed any error in passing the order for restoration of the land in favour of the original owner. Accordingly, the Assistant Collector has not thought it fit to interfere with the order passed by the Mamlatdar and ALT and dismissed the appeal filed by the father of the petitioners and confirmed the order passed by the Mamlatdar and ALT.
4. As the father of the petitioners passed away, the petitioners then carried the matter further before the Gujarat Revenue Tribunal by filing the Revision Application No. TEN.BA..644/93 challenging the order passed by the Assistant Collector as also the Mamlatdar and ALT. Before the Gujarat Revenue Tribunal, it was the specific case of the petitioners that the family of the petitioners was, in fact, agriculturist. Grand father of the petitioners was agriculturist and was holding the agricultural lands. However,before the land was purchased by the father of the petitioners, grand father of the petitioners had sold away the agricultural lands but that by itself would be no ground to treat the father of the petitioners as non- agriculturist. For all practical purposes, family of the petitioners was agriculturist, therefore, transaction of purchase of an agricultural lands by the father of the petitioners was not in contravention or in breach of section 63 of the Act. Next contention which was raised before the Tribunal was that the initiation of the proceedings under section 84-C of the Act was after unreasonable delay of about more than nine years from the date of certification of the entry of transaction in the revenue record, therefore, on the ground of such unreasonable delay, order passed by the Mamlatdar and ALT as well as the Assistant Collector could not stand to scrutiny of law as the Mamlatdar had committed gross error in initiating the proceedings under section 84-C of the Act after unreasonable delay of more than nine years. Before the Gujarat Revenue Tribunal, the petitioners in fact had cited more than one authorities to point out that the proceedings under section 84-C of the Act initiated after unreasonable delay of more than nine years and the consequential order passed thereon cannot be allowed to stand. However, the Tribunal came to the conclusion that on the day when the father of the petitioners purchased the land, he was not agriculturist and the transaction was invalid transaction and such invalid transaction is required to be set at naught by the proceedings under section 84-C of the Act. The Tribunal has come to the conclusion that what is required to be seen while initiating the proceedings under section 84-C of the Act is that the parties are given proper opportunity to represent their case and in the facts of the case, the parties have been given proper opportunity. The Tribunal, thus, decided to confirm the orders passed by both the authorities and accordingly dismissed the revision application. It is this order which is under challenge in this petition filed by the petitioners.
5. I have heard the learned Advocate Shri Jayesh Patel for learned advocate Shri A.J. Patel for the petitioners and Shri Shital Patel, learned advocate for respondent No.1 as well as Mrs.
V.S. Pathak, learned AGP for respondents No.2 and 3. Learned Advocate Shri Jayesh Patel for the petitioners submitted that the land was purchased on 4.12.1979 and the entry on the basis of the registered sale deed came to be effected and certified on 28.1.1980. The revenue authorities were therefore having knowledge of this transaction took place on 28.1.1980. He submitted that inspite of this position, the Mamlatdar and ALT decided to initiate suo motu proceedings under section 84-C of the Act after the period of about more than nine years and passed the orders dated 23.10.90 holding this transaction in breach of the provisions of section 63 of the Act and passing the order under section 84-C whereby the father of the petitioners was directed to restore the land to original position and to hand over possession to original owners of the land. He would submit that it is well settled principle of law that the authorities exercising powers under the Tenancy Act especially under section 84-C cannot exercise such powers and issue the direction for handing over the possession of the agricultural land after unreasonable long delay. His second limb of argument is that for all practical purposes, the petitioners and their family were agriculturist. He has pointed out that the grand father of the petitioners was agriculturist. He was holding agricultural land. He was cultivating the agricultural land. However, before the land in question was purchased by the father of the petitioners, he had sold away the land but that by itself would not be a ground to say that the petitioners and their family were not agriculturists. He has pointed out that the respondent No.1 who since knew that the grand father of the petitioners was agriculturist, decided to sell the agricultural land and respondent No.1 has even as on today no objection in respect of the sale of his land in favour of the petitioners' father. He, therefore, submitted that it is not the case that the sale of the land was totally to a person who or whose family was never agriculturist. He submitted that the petitioners being the grand children of agriculturist, for all means, the petitioners should be taken as agriculturists. Ultimately, he urged to allow this petition by quashing and setting aside the orders passed by the authorities below.
6. All these arguments came to be supported by the learned advocate Mr. Shital Patel appearing for respondent No.1 who has empathetically stated that the respondent No.1 had sold the land to the father of the petitioners because he knew that the grand father of the petitioners was an agriculturist. He had all reasons to believe that the family of the petitioners was agriculturist as there was no hitch or objection in selling the land to the agriculturist. He therefore submitted that the orders passed by the authorities below are required to be quashed and set aside as submitted by the learned advocate for the petitioners.
As against the above said arguments advanced by the learned advocate for the petitioners as well as the learned advocate for respondent No.1, Mrs. V.S.Pathak, learned AGP for respondent authorities submitted that the transaction in question was, from the inception, invalid and contrary to the provisions of section 63 of the Act and such transaction, if required, can be taken into suo motu revision by the competent authority that is the Mamlatdar and ALT as and when it is brought to the notice of such competent authority. She submitted that if the transaction is invalid, then, delay should not come in the way of the authorities in examining such transaction and holding that the transaction is invalid transaction and, therefore, once such transaction was brought to the notice of the competent authority, immediately the proceedings were initiated under section 84-C of the Act and once having found that the transaction was void, the Mamlatdar and ALT has not committed any error in restoring the possession to the original owner and directing the petitioners to hand over possession to the original owner. She would further submit that simply because the grand father of the petitioners was agriculturist, the petitioners cannot be considered as agriculturist. She submitted that when the transaction took place in the year 1979, the fact remained that the father of the petitioners was not agriculturist. She submitted that there is no law that a person who was in past agriculturist would continue to be agriculturist once having sold the land. Actually, grand father of the petitioner was not holding any agricultural land on the date of transaction in question. Therefore, in no circumstances, the petitioners could be said to be an agriculturist when the transaction had taken place in the year 1979.Ultimately, on the basis of these arguments, she urged that the petition is devoid of any merits and is required to be dismissed.
7. Having heard the learned advocates for the parties and having perused the record, it appears that the transaction which had taken place on 4.12.1979 though having been certified by the Mamlatdar on 28.1.1980, the Mamlatdar and ALT initiated the proceedings under section 84-C of the Act in the year 1989 meaning thereby after a period of about nine years. It appears that on 23.12.1990, the Mamlatdar and ALT passed order declaring such transaction as invalid and directed restoration and also directed the father of the petitioners to hand over the possession of the lands to the original owners.
8. It is required to be noted that the Mamlatdar has in his order not declared the transaction as invalid transaction. The Mamlatdar has stated that the transaction is required to be declared as invalid transaction. Even if this observation is taken to be finding, then also, the Mamlatdar had no jurisdiction or power to direct the restoration of the lands to the original owner. From the provisions of section 63 of Act, it becomes clear that the lands could be restored to the original owner provided that the purchaser of the land files undertaking to restore the land to the original owner. Thus, it could be only by consent of the parties that the Mamlatdar can order to restore the land in favour of the original owner, otherwise, according to the priority provided under section 84-C,land is required to be given. In the
petitioners has vehemently submitted that by now it is well settled position of law that even if the transaction which is found to be invalid and in breach of section 63 of the Act, the competent authority cannot pass any order for setting at naught such transaction and to restore or hand over the possession of property to original owner or to vest in the State Government after unreasonable delay. Shri Patel submitted that in this case, the Mamlatdar initiated proceedings under section 84-C of the Act after long unreasonable delay of more than nine years, therefore, he submitted that such action on the part of the Mamlatdar and ALT cannot stand scrutiny of law in view of the settled principles of law pronounced by this Court and Hon'ble the Supreme Court. He relied on two different decisions of this Court, one is in the case of Rameshbhai Ambalal Shah v. State of Gujarat & Anr., reported in 2011(3) GLR 2587. Said decision is also in respect of the transaction of sale declared as invalid under section 84-C of the Act. In the said case, the competent authority that is Mamlatdar and ALT initiated suo motu powers under section 84-C of the Act after the period of about 13 years and declared the sale transaction as illegal. This Court, therefore, held that the Mamlatdar and ALT ought to have exercised suo motu powers under section 84-C of the Act within reasonable time and such powers having not been exercised within reasonable time and having been exercised after 13 years, the orders passed by the Mamlatdar and other authorities cannot be sustained.
9. In the case of Shambhuram Videshiram Morya v. State of Gujarat through Secretary (Appeals) & Others, reported in 2012(1) GLR page 665 also, the Mamlatdar had declared the sale transaction as invalid under section 84-C of the Bombay Tenancy & Agricultural Lands Act, 1948. However, said transaction was declared invalid and powers under section 84-C of the Act were exercised by the Mamlatdar after the period of 15 years. This Court has not approved the action on the part of Mamlatdar and set aside the order passed by the Mamlatdar and other authorities. Thus, from the above said two decisions, it is clear that the Mamlatdar and ALT or any competent authority wants to exercise powers declaring any transaction of sale and purchase as illegal or in breach of section 63 or any other provisions of Act, such powers are required to be exercised within reasonable period. Reliance is also placed by Shri Patel on the decision in the case of Mohamad Kavi Mohamad Amin versus Fatmabai Ibrahim, (1997) 6 SCC 71. In the said case, Supreme Court also considered the very same provisions of the Act and held that the suo motu powers under section 84-C should be initiated by the Mamlatdar and ALT within reasonable time. In that case, year of transaction was 1972 and the suo motu powers were exercised in the year 1973. Hon'ble the Supreme Court has held that where no time limit is prescribed for exercise of such powers in the Statute, it should be exercised within reasonable time. In the said case, though delay on the part of the authorities in exercising the suo motu powers was though more than one year, Hon'ble the Supreme Court has held that the suo motu powers exercised by the Mamlatdar after the delay of one year was also not reasonable time. Accordingly, Hon'ble the Supreme Court has set aside the order passed by the Mamlatdar on the ground that the Mamlatdar has not exercised suo motu powers within reasonable time. In the present case, the Mamlatda and ALT has exercised the suo motu powers under sec. 84-C of the Act after a period of about more than nine years. By no stretch of imagination, it can be said that the period of nine years is reasonable period for exercise of such suo motu powers under section 84-C of the Act. Such powers having been exercised after unreasonable delay of more than nine years cannot stand scrutiny of law. So far as the second limb of argument is concerned, even if at the time when the father of the petitioners purchased the land, he was not agriculturist, still, it as not that the sale was in favour of such a strange person whose family was never agriculturist. Under the circumstances, on both counts, I am of the opinion that the Mamlatdar and ALT has committed error in declaring the sale transaction as invalid transaction and in passing the order of restoration of land to the original owner. The Assistant Collector as also the Gujarat Revenue Tribunal both have committed grave error in not properly appreciating the contentions advanced before them and in confirming the order passed by the Mamlatdar and ALT. In view of the above, the petition is required to be allowed. Same is allowed. The orders passed by the authorities below are hereby quashed and set aside. Rule is accordingly made absolute. No order as to costs.
(C.L. Soni,J.) an vyas