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2018 DIGILAW 1054 (GUJ)

Bhikhabhai Kalabhai Harsoda v. State of Gujarat

2018-09-04

R.SUBHASH REDDY, VIPUL M PANCHOLI

body2018
JUDGMENT & ORDER : Vipul M. Pancholi, J. Civil Application No.4 of 2017 in Letters Patent Appeal No.1015 of 2017 has been filed by the applicants for condonation of delay of 104 days caused in preferring Letters Patent Appeal against the order dated 30.9.2016 passed by the learned Single Judge in Civil Application No.2560 of 2016 and Miscellaneous Civil Application No.1092 of 2016 whereas Civil Application No.2887 of 2018 has been filed by the applicants seeking leave of this Court to grant permission to the applicants to file an appeal against the judgment and order dated 12.4.2013 passed by the learned Single Judge in Special Civil Application No.3031 of 2007. As the issue involved in both these applications are similar, at the request of the learned advocates appearing for the parties, both these applications are heard together and are being disposed off by this common order. 2. At the outset, it is required to be noted that as the learned advocates appearing for the parties have addressed on the merits of the case at the time of hearing of the application for condonation of delay and for grant of leave to appeal, we have considered such submissions at this stage. Heard learned advocate Mr.Nikhil Cariel for the applicants, learned Senior advocate Mr.R.S.Sanjanwala assisted by learned advocate Mr.Amar Mithani for respondent no.3 and learned Assistant Government Pleader Mr.Rohan Yagnik for the respondent nos.1 and 2. 3. Learned advocate Mr.Nikhil Cariel appearing for the applicants submitted that the applicants are the original land owners and father of the applicants sold the land bearing survey no.250 of village Kothariya, Ta.Rajkot, District Rajkot admeasuring acre 9-13 gunthas. The father of the applicants as well as the present respondent no.3-original petitioners submitted an application for grant of nonagricultural permission with respect to the land in question. The District Development Officer, by an order dated 27.7.1964, granted such permission for construction of houses. It is submitted that 43 plots came to be demarcated from the land in question which were purchased by the petitioners as partners of registered partnership firm by registered sale deed dated 16.11.1964. It is submitted that for breach of condition of N.A. permission, the Collector, Rajkot passed an order on 9.10.1972 and thereby N.A. permission came to be cancelled and it was ordered that from the date of the said order, subject land would be considered as agricultural land. It is submitted that for breach of condition of N.A. permission, the Collector, Rajkot passed an order on 9.10.1972 and thereby N.A. permission came to be cancelled and it was ordered that from the date of the said order, subject land would be considered as agricultural land. Thereafter, the Mamlatdar certified the mutation entry no.1000 in the revenue record showing the land to be agricultural land held by the respective partners. 4. Learned advocate Mr.Cariel thereafter submits that the Deputy Collector, by exercising suo motu powers, set aside the mutation entry no.1000 on 31.1.1986 on the ground that the partnership firm is not shown to be agriculturist. The original petitioners, therefore, filed the appeal before the Collector which was dismissed against which revision was filed before Special Secretary, Revenue Department ('SSRD' for short). It is submitted that SSRD, by an order dated 11.5.1994, remanded the matter back to the Collector for fresh consideration. At that stage, the Collector initiated the proceedings under Section 75 of the Saurashtra Gharkhed Tenancy Settlement and Agricultural Land Ordinance, 1949 (hereinafter referred to as 'Ordinance, 1949') for breach of Section 54 thereof by issuing show cause notice dated 28.2.1995. Thereafter, the Collector passed an order on 1.8.1995 and held that there was a breach of Section 54 of the Ordinance as no prior permission was sought and thereby it is further held that the petitioners are in illegal possession of the land in question and therefore they are required to be summarily evicted and the land be forfeited to the state government. At this stage, it is submitted that the original petitioner therefore filed revision application before the Gujarat Revenue Tribunal. However, the said revision application was also dismissed by the Tribunal on 26.4.1999 and therefore the the petitioners filed captioned petition before this Court. It is submitted that the learned Single Judge, by an order dated 12.4.2013, allowed the said petition and thereby quashed and set aside the orders passed by the Tribunal as well as Collector. 5. Learned advocate Mr.Cariel further submits that when the present applicants came to know about the passing of the order dated 12.4.2013 passed by the learned Single Judge, they preferred Miscellaneous Civil Application No.1092 of 2016 for review along with Civil Application (for condonation of delay) No.2560 of 2016. 5. Learned advocate Mr.Cariel further submits that when the present applicants came to know about the passing of the order dated 12.4.2013 passed by the learned Single Judge, they preferred Miscellaneous Civil Application No.1092 of 2016 for review along with Civil Application (for condonation of delay) No.2560 of 2016. However, the learned Single Judge, by another impugned order dated 30.9.2016 dismissed the Civil Application for condonation of delay as well as application filed for review of the order. Learned advocate Mr.Cariel therefore submits that the applicants have filed two separate appeals. 6. Learned advocate Mr.Cariel would submit that the applicants are original land owners and they sold the land in question after converting the agricultural land into non-agricultural purpose to the respondent no.3-original petitioners. However, when the Collector passed an order for breach of condition of N.A. order and the land in question is treated to be agricultural land, the original petitioners are not entitled to retain the same and therefore the Collector passed an order for eviction of the original petitioners from the land in question. Learned advocate has referred to the provisions contained in Section 63 read with Section 84 of the Bombay Tenancy and Agricultural Lands Act, 1948 and thereafter submitted that the land in question is required to be reverted back to the present applicants as the original land owners. As the original land owners, the applicants are having locus to file the present proceedings. At this stage, it is further submitted that the applicants were not joined as parties before the respondent authorities nor they were impleaded as party respondents in the petition filed by the original petitioners and when the applicants are affected persons, this Court may grant leave to file appeal against the impugned order passed by the learned Single Judge. It is further submitted that Civil Application filed for condonation of delay in filing review application before the learned Single Judge was dismissed on the ground that the applicants have failed to explain the inordinate delay of 991 days and no sufficient cause is shown for condonation of the same. Learned advocate Mr.Cariel therefore urged that both the Civil Applications be allowed. 7. On the other hand, learned senior advocate Mr.R.S.Sanjanwala opposed both these applications and mainly contended that the applicants have no locus to file the present proceedings and the applications at the instance of the applicants are not maintainable. Learned advocate Mr.Cariel therefore urged that both the Civil Applications be allowed. 7. On the other hand, learned senior advocate Mr.R.S.Sanjanwala opposed both these applications and mainly contended that the applicants have no locus to file the present proceedings and the applications at the instance of the applicants are not maintainable. It is contended that the applicants are the heirs and legal representatives of the deceased Kalabhai Madhabhai Harsoda who has executed the registered sale deed on 16.11.1964 for the land in question. After a period of 54 years of execution of sale deed, the present proceedings are filed with an oblique motive to harass the purchasers of the land in question. It is contended that the land in question was converted for non-agricultural usage and thereafter the original petitioners purchased the said land by registered sale deed. It is further contended that the Collector passed an order in the year 1972 for breach of condition of N.A. permission and thereby the land in question was treated as agricultural land from the date of the said order. However, at that time also, no proceedings were initiated under the provisions of the Ordinance against the original petitioners. In the proceedings in connection with the entry no.1000 mutated in the revenue record in the name of the partners of the partnership firm, the Deputy Collector suo motu initiated the proceedings and cancelled the entry on the ground that partners cannot hold agricultural land. It is further submitted that when the said order was carried before the SSRD, the matter was remanded back to the Collector and at that time in the year 1995, for the first time, the Collector initiated the proceedings under the Ordinance for breach of Section 54 of the Ordinance. Learned counsel contended that learned Single Judge has rightly considered all these aspects and held that suo motu powers are required to be exercised within the reasonable time limit. However, in the present case, such powers were exercised after a period of more than twenty years. 8. Learned counsel contended that learned Single Judge has rightly considered all these aspects and held that suo motu powers are required to be exercised within the reasonable time limit. However, in the present case, such powers were exercised after a period of more than twenty years. 8. Learned senior advocate Mr.Sanjanwala thereafter submitted that even while considering the Civil Application along with the Miscellaneous Civil Application filed by the applicants for condonation of delay in filing review application, the learned Single Judge has once again discussed the merits of the case and observed that the applicants have failed to show sufficient cause for condonation of delay and the applicants are not having any locus to file an application once they have sold the land in question in the year 1964, no error is committed by the learned Single Judge and therefore this application be dismissed. 9. Learned senior advocate Mr.Sanjanwala thereafter submitted that the state government also challenged the order passed by the learned Single Judge by filing Letters Patent Appeal. However, the said appeal is dismissed by Division Bench of this Court and therefore, when very same order is challenged by the original land owners who has no locus to file this application, the same may not be entertained. At this stage, it is also pointed out by learned senior advocate that the applicants also filed Civil Suit No.331 of 2012 for setting aside the sale deed executed in favour of the original petitioners. However, the said suit has been dismissed by granting application filed under Order VII Rule 11(d) of the Code of Civil Procedure by the concerned civil Court. It is, therefore, urged that these applications be dismissed. Learned senior advocate Mr.Sanjanwala has placed reliance upon the orders passed by the Division Bench of this Court in the case of Gordhanbhai Arjanbhai Vora V/s Muktaben Jaysukhlal Patira, dated 11.4.2018 in Civil Application No.3 of 2017 in F/Letters Patent Appeal No.1380 of 2017 and in the case of Parshotambhai Dhanjibhai Patel V/s Shivganga Farms Pvt. Ltd.,2018 JX 250 (Guj). 10. We have considered the submissions canvassed by learned advocates appearing for the parties. We have also perused the material on record. As the learned advocates appearing for the parties have argued the matter on merits, we have considered the merits of the case. 10. We have considered the submissions canvassed by learned advocates appearing for the parties. We have also perused the material on record. As the learned advocates appearing for the parties have argued the matter on merits, we have considered the merits of the case. At this stage, it is not in dispute that the applicants are heirs and legal representatives of deceased Kalabhai Madhabhai Harsoda who has executed the registered sale deed on 16.11.1964 for the land in question in favour of the original petitioners. The land in question was originally agricultural land, however, deceased Kalabhai Madhabhai Harsoda as well as the original petitioners converted the land in question for non-agricultural use and thereafter the sale deed was executed in favour of the original petitioners. Thus, it is not the case where the agricultural land was sold to the non-agriculturist without taking prior permission of the competent authority and thereby there is alleged violation of the provisions of Section 54 of the Ordinance. 11. Further, it is not in dispute that the Collector initiated the proceedings under Section 75 of the Ordinance after a period of more than 20 years and passed an order which has been set aside by the learned Single Judge. The state government filed Letters Patent Appeal against the order passed by the learned Single Judge and said appeal is also dismissed. 12. It is also not in dispute that Civil Suit No.331 of 2012 filed by the applicant for setting aside the sale deed executed in favour of the original petitioners has been dismissed by the concerned Civil Court. It is also not in dispute that initially the Deputy Collector exercised suo motu powers when the entry no.1000 came to be mutated in the revenue record and cancelled the said entry on the ground that partners of the partnership firm i.e. original petitioners cannot hold agricultural land. When the said order was challenged before the Collector, the appeal was dismissed by the Collector against which revision application was filed before SSRD. At that stage, when the SSRD quashed the orders passed by the Deputy Collector as well as Collector and remanded the matter back to the Collector in the year 1995 for the first time, the Collector initiated the proceedings under Section 75 of the Ordinance for breach of Section 54 of the Ordinance. At that stage, when the SSRD quashed the orders passed by the Deputy Collector as well as Collector and remanded the matter back to the Collector in the year 1995 for the first time, the Collector initiated the proceedings under Section 75 of the Ordinance for breach of Section 54 of the Ordinance. Thus, it is not in dispute that such powers were exercised after a period of 20 years. At this stage, it is relevant to note that the present applicants have not filed any proceedings against the original petitioners with regard to mutation entry or with regard to breach of provisions of the Ordinance. They had not submitted any application for joining them as party respondents before the respondent authorities as well as before the Tribunal nor application was submitted before the learned Single Judge when the petition was pending. However, when the learned Single Judge allowed the petition filed by the original petitioners, for the first time, the review application came to be filed with application for condonation of delay. There was a delay of 991 days in filing the said review application. 13. In the aforesaid undisputed facts, learned Single Judge has allowed the petition filed by the original petitioners by passing the impugned order on the ground that there was delay of more than 20 years in exercise of powers under Section 75 of the Ordinance by the Collector and therefore no such proceedings could have been initiated after such a long period. Similarly, Civil Application for condonation of delay of 991 days in filing the review application has been dismissed by the learned Single Judge on the ground that the applicants have failed to show sufficient cause for not filing the review application within the period of limitation. We are of the view that the learned Single Judge has not committed any error in doing so. 14. In the case of Gordhanbhai Arjanbhai Vora, the Division Bench of this Court considered the provisions contained in Sections 54 and 75 of the Ordinance, and observed in paragraph 10 as under: "10. It is not in dispute that the applicant sold the land in question to the petitioners. The applicant has never alleged that the petitioners have committed the violation of provisions of Section 54 of the Ordinance. It is not in dispute that the applicant sold the land in question to the petitioners. The applicant has never alleged that the petitioners have committed the violation of provisions of Section 54 of the Ordinance. The Collector issued suo motu notice to the petitioners and the proceedings are initiated at the instance of the applicant. In the said suo motu proceedings, the order of summary eviction of the petitioners under Section 75 of the Ordinance came to be passed by the Collector. Thus, the applicant was not required to be joined as party in the proceedings filed by the original petitioners before the Tribunal or before this Court in the captioned writ petition as the applicant cannot be termed as an aggrieved party. The captioned petition was filed in the year 2000 challenging the order of the Collector as well as the Tribunal and when the petition is allowed in the year 2013, at this stage, the present application for leave to appeal is filed, which cannot be entertained." 15. Similarly, while considering the provisions contained in Sections 63 and 84 of the Bombay Tenancy and Agricultural Lands Act, 1948, the Division Bench has observed in the case of Parshotambhai Dhanjibhai Patel, in paragraphs 17 and 18 as under: "17. From the aforesaid decisions rendered by this Court, it is clear that when the seller has pocketed the amount of consideration and if he has lost the remedy even by filing civil suit or declaration that the transaction is null and void and illegal, the remedy of getting back the land which is not permissible directly, cannot be allowed to be done indirectly by invoking the jurisdiction of this Court under Article 226 of the Constitution. It is further clear that the concerned petitioner who is transferor and party to sale would never be said to be aggrieved party which would entitle him to carry the matter in appeal when the state has chosen not to challenge the order. It is further clear from the aforesaid decisions that to maintain the petition under Articles 226 and 227 of the Constitution, the party aggrieved must show that any of his fundamental rights or his legal rights have been infringed and thereby the party is aggrieved by such infringement. What is meaning of person aggrieved is also discussed. 18. It is further clear from the aforesaid decisions that to maintain the petition under Articles 226 and 227 of the Constitution, the party aggrieved must show that any of his fundamental rights or his legal rights have been infringed and thereby the party is aggrieved by such infringement. What is meaning of person aggrieved is also discussed. 18. Thus, keeping in view the aforesaid decisions, if the facts as stated hereinabove are examined, we are of the view that the respondent no.2-Mamlatdar and ALT suo motu initiated the proceedings under the provisions of Section 84 of the Act for alleged breach of Section 63 of the Act. The petitioners have never challenged the sale transactions entered between them and the respondent no.1-company. The order passed by Mamlatdar and ALT was not challenged by the petitioners before the Deputy Collector. Similarly, the order passed by the Deputy Collector was not challenged by the petitioners before the Tribunal. The petitioners have not initiated any civil proceedings for cancellation of sale deeds nor they have initiated any revenue proceedings for cancellation of mutation entries made in the revenue record. The petitioners have pocketed the amount of sale consideration." 16. Keeping in view the aforesaid decisions, if the facts of the present case as discussed hereinabove are considered, it can be said that the applicants cannot be termed as aggrieved party once they have sold the land in question and pocketed the money. Learned Single Judge has rightly considered the fact that the respondent Collector exercised the powers under the provisions of the Ordinance after a period of 20 years and therefore on that ground, quashed and set aside the orders passed by the respondent-Collector and Tribunal. Similarly, in absence of sufficient cause shown by the applicants before the learned Single Judge for not filing the review application within the stipulated time limit, learned Single Judge has rightly dismissed the said Civil Application along with the Miscellaneous Civil Application filed for review. 17. Similarly, in absence of sufficient cause shown by the applicants before the learned Single Judge for not filing the review application within the stipulated time limit, learned Single Judge has rightly dismissed the said Civil Application along with the Miscellaneous Civil Application filed for review. 17. In view of the foregoing discussion, we are not inclined to grant the Civil Application which has been filed by the applicants for condonation of delay in absence of sufficient cause shown by the applicant and also Civil Application No.2887 of 2018 which has been filed by the applicants seeking leave of this Court to grant permission to the applicants to file an appeal against the judgment and order dated 12.4.2013 passed by the learned Single Judge in Special Civil Application No.3031 of 2007 as it is not required to be entertained in the facts of the present case as discussed hereinabove. In view of the foregoing discussion, both the Civil Applications are dismissed. 18. Consequently, Letters Patent Appeals and connected Civil Applications are also dismissed.