B. N. KHACHAR v. DEPUTY COLLECTOR RAJKOT — 1993 DIGILAW 513 (GUJ)

A. N. DIVECHA, J. ( 1 ) THE order passed by the Deputy Collector at Rajkot (`the First Authority for convenience) on 22/02/1987 in Remand Case No. 325 as substantially affirmed in revision by the decision rendered by the Gujarat Revenue Tribunal at Ahmedabad (`the Tribunal for convenience) on 28/07/1989 in Revision Application No. TEN. B. R. 16 of 1987 is under challenge in this petition under Article 227 of the Constitution of India. By his impugned order the First Authority substantially rejected the petitioners application under Section 8 of the Gujarat Agricultural Lands Ceiling Act 1960 (`the Act for brief) for declaration that transfer of some five parcels of land by him on five different dates were not with a view to defeating the object thereof. ( 2 ) THE facts giving rise to this petition move in a narrow compass. The petitioner possessed several parcels of land. He sold away some of them. The particulars of his transfer are tabularised in the order passed by the First Authority and I do not propose to burden this judgment of mine by repeating it. On coming into force of Gujarat Act No. 2 of 1974 the petitioner was required to obtain the necessary declaration by making an appropriate application under Section 8 (2) of the Act. He made such application on 6/09/1976 It was rejected by the First Authority by his order passed on 10/05/1977. That order came to be upset by the Tribunal in revision by its decision rendered on 20/01/1981 in Revision Application No. TEN. B. R. 9 of 1981 and the matter was remanded to the First Authority for his fresh decision according to law. Thereupon it came to be registered as Remand Case No. 325. By his order passed on 2 2/02/1987 in Remand Case No. 325 the First Authority again substantially rejected the petitioners application. It may be mentioned that the declaration sought for was granted with respect to one parcel of land bearing Survey No. 22 Paiki admeasuring 10 acres 30 gunthas by means of the registered Sale Deed executed on 2 9/01/1968 in favour of Bhojbhai Lakhabhai. The declaration sought for in respect of the other four parcels of land was rejected. A copy of the aforesaid order passed by the First Authority on 22/02/1987 is at Annexure-A to this petition. The declaration sought for in respect of the other four parcels of land was rejected. A copy of the aforesaid order passed by the First Authority on 22/02/1987 is at Annexure-A to this petition. The aggrieved petitioner thereupon carried the matter in revision before the Tribunal by means of his Revision Application No. TEN. B. A. 16 of 1987. By its decision rendered on 28/07/1989 in the aforesaid revisional application the Tribunal partly accepted it and granted the necessary declaration with respect to another parcel of land bearing Survey No. 146/1 admeasuring 4 acres 36 gunthas sold by the registered Sale Deed executed on 17/04/1974 in favour of Mojiram Narbheram. The declaration sought for with respect to the remaining three parcels of land was rejected. Its copy is at Annexure-B to this petition. The aggrieved petitioner has thereupon moved this Court by means of this petition under Article 227 of the Constitution of India for questioning the correctness of the order at Annexure-A to this petition as substantially affirmed in revision by the impugned decision at Annexure-B to this petition. ( 3 ) IN order to ascertain whether or not a transfer of agricultural land by a party during the period from 24/01/1971 and 1/04/1976 was with a view to defeating the object of the Act what is required to be seen is whether or not the transaction was bona fide and genuine. A transaction can be said to be bona fide and genuine if it does not smack of any manipulation or manoeuvring or is not by way of camouflage. If it is tainted with any of the aforesaid three or like vices it cannot be branded as genuine or bona fide. ( 4 ) I am fortified in my view by the binding ruling of the Supreme Court in the case of Bijendra Singh v. State of UP. reported in AIR 1981 Supreme Court at page 636 to which my attention has been invited by Shri Jadeja for the petitioner in support of this petition. The aforesaid binding ruling of the Supreme Court has been rendered in the context of the U. P. Imposition of Ceiling on Land Holdings Act 1961 (the U. P. Act for brief) as amended by U. P. Act 18 of 1973. The relevant provisions contained therein was Section 5 (6 ). The aforesaid binding ruling of the Supreme Court has been rendered in the context of the U. P. Imposition of Ceiling on Land Holdings Act 1961 (the U. P. Act for brief) as amended by U. P. Act 18 of 1973. The relevant provisions contained therein was Section 5 (6 ). The relevant part thereof has been reproduced in paragraph 12 of the aforesaid binding ruling of the Supreme Court. The language in which it is couched is certainly different from the language in which the relevant provisions contained in Section 8 (1) and (2) has been couched. The spirit behind the provisions as reproduced in paragraph 12 of the aforesaid binding ruling of the Supreme Court and that found contained in Section 8 (1) and (2) of the Act are identical. The underlining principle in the aforesaid statutory provisions of the two State enactments is the same. In that view of the matter the view taken by the Supreme Court in its aforesaid binding ruling would assume importance. ( 5 ) THE Supreme Court was concerned with the expression good faith occurring in the provisions reproduced in paragraph 12 of its aforesaid binding ruling. In that context it has been held : broadly speaking the benefit of Clause (b) of the proviso to sub-Sec. (6) of Section 5 is available to a transfer made in good faith that is to a bona fide transfer whereby the tenure-holder genuinely and irrevocably transfers all right title and interest in the land in favour of the transferee in the ordinary course of management of his affairs and which is not a collusive arrangement or device or subterfuge to enable the tenure-holder to continue to hold the surplus land or any reserved interest in praesenti or in futuro therein (or merely to convert it into cash) and thus circumvent the ban under Section 5 (1 ). A transfer solely for the purpose of converting surplus land into cash without any kind of need (not to be confused with legal necessity) may also lack good faith. In order to be entitled to the benefit of proviso (b) a transfer made in good faith must satisfy the further conditions (ii) to (iv) enumerated in the proviso (b ). A transfer solely for the purpose of converting surplus land into cash without any kind of need (not to be confused with legal necessity) may also lack good faith. In order to be entitled to the benefit of proviso (b) a transfer made in good faith must satisfy the further conditions (ii) to (iv) enumerated in the proviso (b ). Once a transfer is shown to be bona fide and further satisfies all the other positive and negative conditions laid down in the Proviso (b) to Section 5 (6) there is no justification in law to stretch the legal fiction further and so spell out from the expression `good faith an additional requirement of proving pressing necessity for the transfer before the tenure-holder is entitled to the benefit of the aforesaid Proviso (b ). The aforesaid binding ruling of the Supreme Court will govern the present case as well. As pointed out hereinabove the underlining principle and spirit behind Section 8 of the Act is practically the same as the one found in the similar provisions contained in the U. P. Act as reproduced in paragraph 12 of the aforesaid ruling of the Supreme Court. In that view of the matter what is required to be seen in deciding the fate of the application under Section 8 of the Act is to find out whether or not the transfer in question was bona fide and genuine. In order to ascertain bona fides and genuineness of a transaction any possibility of its being tainted with collusive or fraudulent arrangement or device or subterfuge or manipulation or manoeuvring or camouflage has to be ruled out. Once the transaction is shown to be bona fide and genuine free from any of the aforesaid infirmities it has to be accepted as not made with a view to defeating the object of the Act. ( 6 ) IT appears that this aspect of the case has not been considered by the First Authority as well as by the Tribunal. With respect the approach even by the Tribunal to the case on hand was somewhat mechanical. ( 7 ) SHRI Mehta for the contesting respondents has stated that he is in possession of the record of the case in order to resist this petition. He has fairly shown the record to me. On page 193 thereof is the deposition of the petitioner. ( 7 ) SHRI Mehta for the contesting respondents has stated that he is in possession of the record of the case in order to resist this petition. He has fairly shown the record to me. On page 193 thereof is the deposition of the petitioner. He has clearly staled therein that he was required to sell his five parcels of land because the times during which he entered into the sale transaction were the years of famine and that he was keeping indifferent health and he was bored up. He has also deposed that he sold the aforesaid five parcels of land by executing the necessary registered Sale Deeds in favour of different purchasers. He has added that after disposal of the aforesaid five parcels of land he was possessing very small acreage and it was also of inferior quality and he was unable to eke out his living therefrom. His deposition has remained unchallenged. He was not subjected to any cross-examination though the Revenue Officer was very much a party to the proceeding before the First Authority in view of Section 42a of the Act. The record shows that the Nayab Mamlatdar (Revenue) at Jasdan was the Revenue Officer impleaded as a party to the proceeding before the First Authority. It transpires from the deposition at page 193 on the record of the case that the Revenue Officer who was a party to the proceeding had put his signature on the deposition. He has not chosen to cross-examine the petitioner as to his aforesaid deposition. Perhaps he could not have done so because what flew from the petitioners mouth was the truth. If it was untrue the Revenue Officer present in the inquiry proceedings could have very well confronted him with the relevant Revenue records in his possession. It would be very much within the knowlegde of the concerned Revenue Officer which years in a particular area were the years of famine. The fact remains that the petitioners aforesaid testimony remained uncontroverted. There was no reason not to accept his uncontroverted testimony showing his bona fide and the genuineness of the transactions in question. With respect even the Tribunal has not chosen to focus its attention on this aspect of the case. The fact remains that the petitioners aforesaid testimony remained uncontroverted. There was no reason not to accept his uncontroverted testimony showing his bona fide and the genuineness of the transactions in question. With respect even the Tribunal has not chosen to focus its attention on this aspect of the case. ( 8 ) ORDINARILY I might have remanded the matter to the First Authority for his fresh decision according to law in the light of the aforesaid binding ruling of the Supreme Court in the case of Bijendra Singh (supra ). That would have resulted into another round of litigation qua the present petitioner. He was reported to be aged 61 years when his deposition at page 193 on the record of the case was recorded. His deposition was recorded some time in 1984. He might be 70 years old today. I do not think he deserves to be subjected to any further round of litigation at this age of his. I have therefore chosen to look into the record myself for the purpose of finding out whether or not the transactions involved in this case were bona fide and genuine. On examination of the record I have no hesitation in coming to the conclusion that the transactions involved in this case were bona fide and genuine. On examination of the record I have no hesitation in coming to the conclusion that the transactions involved in this case are nothing but bona fide and genuine. In that view of the matter there was no reason not to grant the declaration sought for by the petitioner in his application under Section 8 (2) of the Act. ( 9 ) IN view of my aforesaid discussion I am of the opinion that the impugned order at Annexure-A to this petition as substantially affirmed in revision by the impugned decision at Annexure-B to this petition deserves to be quashed and set aside. ( 10 ) IN the result this petition is accepted. The order passed by the Deputy Collector at Rajkot on 22/02/1987 in Remand Case No. 325 at Annexure-A to this petition as substantially affirmed in Revision by the Gujarat Revenue Tribunal at Ahmedabad on 2 8/07/1989 in Revision Application No. TEN. B. A. 16 of 1987 at Annexure-B to this petition is quashed and set aside. The order passed by the Deputy Collector at Rajkot on 22/02/1987 in Remand Case No. 325 at Annexure-A to this petition as substantially affirmed in Revision by the Gujarat Revenue Tribunal at Ahmedabad on 2 8/07/1989 in Revision Application No. TEN. B. A. 16 of 1987 at Annexure-B to this petition is quashed and set aside. It is hereby declared that the sale transactions involved in this case were bona fide and genuine and were not entered into at the relevant time with a view to defeating the object of the Act. Rule is accordingly made absolute with no order as to costs. .