Research › Search › Judgment

Gujarat High Court · body

2014 DIGILAW 1046 (GUJ)

State of Gujarat v. Bhikhiben

2014-09-23

R.P.DHOLARIA, V.M.SAHAI

body2014
JUDGMENT : R.P. Dholaria, J. 1. This appeal under Clause 15 of the Letters Patent is directed against the judgment dated 2-5-2013 passed by the learned Single Judge in Special Civil Application No. 14813 of 2012, whereby the learned Single Judge allowed the petition filed by the respondent Nos. 1 to 6 herein. As short question of law is involved, with the consent of the learned Advocates for both the parties, the present appeal is taken up for final hearing today. 2. The short facts of the case are that agricultural land bearing old Survey No. 434 and new Survey No. 307 admeasuring Hectares 1-57-00 situated in the sim of village Vesu, Taluka Choryasi, District Surat was included in the Town Planning Scheme (Surat) No. 6 and has been given Final Plot No. 15. The Town Planning Authority also issued Form No. F showing that the land bearing Survey No. 307 which was given original Plot No. 11 admeasuring 15700 square metres, has been given Final Plot No. 15 admeasuring 11611 square metres. 2.1. The aforesaid agricultural land was held by one Nathubhai Jivanbhai, father of respondent No. 1 and he was cultivating the said land as a tenant since 1944-1945 and the entries in the R.T.S. proceedings also came to be mutated for the same and he was declared as a permanent tenant in respect of the aforesaid land under the provisions of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as 'the Act' for short). On the tillers' day, i.e. 1st April, 1957, said Nathubhai Jivanbhai became deemed purchaser. Accordingly, proceedings under Sec. 32G of the Act came to be initiated and ultimately the purchase price was fixed and the same was also paid by said Nathubhai Jivanbhai and he became the statutory owner of the aforesaid land. In pursuant thereto, a Mutation Entry No. 309 also came to be entered in the R.T.S. proceedings maintained in the village record. 2.2. Thereafter, on 5th December, 1982, said Nathubhai Jivanbhai expired, and therefore, names of his heirs came to be mutated in his place and the revenue entry was also effected for the same. Thereafter, the aforesaid heirs of deceased Nathubhai Jivanbhai applied before the Mamlatdar for removal of restriction on the aforesaid land as their ancestors were holding the land since 1944-1945. Thereafter, the aforesaid heirs of deceased Nathubhai Jivanbhai applied before the Mamlatdar for removal of restriction on the aforesaid land as their ancestors were holding the land since 1944-1945. In the said proceeding, the Mamlatdar was pleased to remove the restriction on the aforesaid land. Thereafter, the heirs of deceased Nathubhai Jivanbhai executed a sale-deed in favour of respondent Nos. 2 to 6 on 9th April, 2003. Thereafter, certain proceedings regarding breach of conditions came to be initiated against the respondents. One suo motu proceeding was also initiated against the present respondent Nos. 1 to 6 inter alia stating that the aforesaid sale transaction is invalid as the land was of a restrictive tenure and it could not have been sold without seeking prior permission from the Collector and in consequence whereof the matter was remanded to the A.L.T. Mamlatdar on 6th October, 2013 for deciding it in accordance with the provisions of the law. Since, the case was not decided by the A.L.T. Mamlatdar, the heirs of deceased Nathubhai Jivanbhai approached this Court by way of a writ petition being Special Civil Application No. 7563 of 2008 and in the said petition this Court directed the Mamlatdar to decide the application of the respondents herein under Sec. 70(o) of the Act, as expeditiously as possible but not later than eight months from the receipt of the said order. However, still that proceeding is pending. 2.3. Since, there is no progress in the proceedings under Sec. 70(o) of the Tenancy Act, and the subject land has been included in the Town Planning Scheme and cannot be used for agricultural purposes, the respondent Nos. 1 to 6 herein filed a writ petition being Special Civil Application No. 14813 of 2012 inter alia praying to direct the competent authority under the Act for fixing the premium in respect of the subject land and also to direct the Collector or the Deputy Collector to grant post facto permission to the petitioners - respondent Nos. 1 to 6 herein in respect of the registered sale-deed dated 9th April, 2003 executed in favour of present respondent Nos. 2 to 6 by the heirs of deceased Nathabhai Jivanbhai. 3. We have heard Mr. Kashyap Pujara, learned Assistant Government Pleader for the appellant and Mr. J.M. Patel with Mr. A.B. Munshi, learned Advocate for respondent Nos. 1 to 6. 4. 2 to 6 by the heirs of deceased Nathabhai Jivanbhai. 3. We have heard Mr. Kashyap Pujara, learned Assistant Government Pleader for the appellant and Mr. J.M. Patel with Mr. A.B. Munshi, learned Advocate for respondent Nos. 1 to 6. 4. Relying upon the aforesaid peculiar facts and circumstances, Mr. Kashyap Pujara, learned Assistant Government Pleader has argued the whenever the land in question was in a nature of restrictive tenure/New Tenure land, the sale transaction could not have been executed by the tenant and even if the new tenure came to be removed by the Mamlatdar then also the Mamlatdar was not competent to remove such restriction under the provisions of the Act. In that view of the matter, the learned Single Judge could not have directed the appellant for fixing the premium and validating the transaction entered into between the respondents. 5. Against the aforesaid arguments, Mr. J.M. Patel, learned Advocate with Mr. A.B. Munshi, learned Advocate for respondent Nos. 1 to 6 has argued that the proceeding initiated by the Mamlatdar under Sec. 70(o) of the Act is in accordance with the law and Mamlatdar was competent to decide the aforesaid issue. Mr. Patel has also argued that from bare perusal of the order dated 28-3-2003 passed by the Mamlatdar, it appears that the same is in consonance with the provisions of the Act as the competent authority converted the aforesaid land from new tenure to old tenure and there was no restriction of transfer of the land and therefore the aforesaid transaction entered into between the respondents is in accordance with the provisions of the Act. Mr. Patel has further argued that even if there may be some dispute amongst the Government Officials as to whether the learned Mamlatdar was vested with the aforesaid power under Sec. 70(o) of the Act or not, that question also does not survive in view of insertion of Sec. 70A by way of the Gujarat Tenancy and Agricultural Lands (Amendment) Act, 2014. 6. In view of the aforesaid factual scenario as well as rival submissions made by the learned Advocates for both the parties, now the only question which arises for our consideration is as to whether the direction issued by the learned Single Judge is in accordance with the provisions of the Act or not? 7. 6. In view of the aforesaid factual scenario as well as rival submissions made by the learned Advocates for both the parties, now the only question which arises for our consideration is as to whether the direction issued by the learned Single Judge is in accordance with the provisions of the Act or not? 7. We have perused the entire material made available to us as well as the proceedings initiated before the various revenue authorities and the various orders passed by the competent authority as well as the impugned judgment rendered by the learned Single Judge and the provisions of Sec. 70A, which came to be inserted by way of the Gujarat Tenancy and Agricultural Lands (Amendment) Act, 2014. 8. On examination of the record of the present appeal, it clearly reveals that the deceased Nathubhai Jivanbhai was declared as the permanent tenant as he was tenant since 1944-1945 i.e. prior to tillers' day i.e. 1st April, 1957. Indisputably, it also reveals from the record that the names of heirs of the deceased Nathubhai Jivanbhai came to be mutated in the revenue record, and thereafter, they moved an application for removal of the restrictive tenure of the aforesaid land and the aforesaid land was converted into old tenure land and the restriction so far as the transfer of the land was removed by the learned Mamlatdar vide his order dated 28-3-2003, and thereafter, the heirs of the deceased Nathubhai Jivanbhai executed a sale-deed on 9th April, 2003 and transferred the aforesaid land in favour of respondent Nos. 2 to 6 herein. Indisputably, on the date of transfer of the land, i.e. on 9th April, 2003, the land in question was not of restrictive tenure land i.e. new tenure land having no restriction for transfer. It also appears that thereafter questioning the competence of learned Mamlatdar to grant such permission, one chapter came to be initiated and that chapter is not finalized by the revenue authority. In the meantime, as noted above and as vehemently argued by learned Advocate Mr. J.M. Patel for the respondent Nos. 1 to 6, the Government has inserted Sec. 70A of the Act by way of the Gujarat Tenancy and Agricultural Lands (Amendment) Act, 2014. The said Sec. 70A reads thus: "70A. In the meantime, as noted above and as vehemently argued by learned Advocate Mr. J.M. Patel for the respondent Nos. 1 to 6, the Government has inserted Sec. 70A of the Act by way of the Gujarat Tenancy and Agricultural Lands (Amendment) Act, 2014. The said Sec. 70A reads thus: "70A. In case where a person is or was declared as a permanent tenant under Sec. 70 by the Mamlatdar and Agricultural Lands Tribunal and subsequently on the basis of such order sale or more than one sale in respect of the land in question has taken place and if thereafter, the order declaring a person as the permanent tenant is found not in accordance with law, then, the Collector, on an application made by the present occupant in this regard, shall, subject to other provisions of this Act or any other law for the time-being in force, proceed to impose the restrictions of Sec. 43 of this Act in respect of such land and shall, after levying rupee one as the penalty and in consideration of payment of such amount as may be determined by the State Government by general or special order from time to time, pass an order regularising such sale, subject to such conditions as may be specified by him." 9. In view of the aforesaid clear-cut provisions of Sec. 70A, it clearly indicates that now the question as to whether the Mamlatdar has any power to remove the restriction or not has become irrelevant and even if the Mamlatdar has exercised the power of conversion of land from new tenure to old tenure, and thereafter, if the transaction of sale has been taken place, the power to regularize such sale by levying rupee one as the penalty and in consideration of payment of such amount as may be determined by the State Government, is vested with the Collector in view of provisions of Sec. 70A. 10. In view of the above, in our opinion, the learned Single Judge has not committed any error while directing the appellant herein to fix the premium of the subject land by treating the subject land as new tenure land within a time-frame. 10. In view of the above, in our opinion, the learned Single Judge has not committed any error while directing the appellant herein to fix the premium of the subject land by treating the subject land as new tenure land within a time-frame. It appears that the State Government by way of amendment, inserted Sec. 70A in the Act, which makes it abundantly clear that the direction issued by the learned Single Judge is in accordance with law and in accordance with the provisions of Sec. 70A of the Act. Furthermore, on perusal of page 198 of this appeal, it clearly goes to show that the State Government has already fixed the premium which is required to be paid by the respondents. 11. In view of the aforesaid factual as well as legal provisions, the order passed by the learned Single Judge is in accordance with law, which does not call for any interference by this Court. Therefore, the present appeal lacks merit and deserves to be dismissed. However, the interest of justice demands that the order of learned Single Judge shall be complied with by the State Government and the State Government shall fix the premium in accordance with the policy of the Government and the necessary challan be issued by the appellant to the respondents so that they may deposit the amount of premium within the statutory period of 21 days from issuance of challan. Demand note along with necessary challan shall be issued by the State Government within a period of six weeks from today. With the aforesaid direction, the appeal stands finally disposed of. In view of the order passed in main appeal today, the Civil Application does not survive and the same is accordingly disposed of.