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2019 DIGILAW 117 (GUJ)

State of Gujarat v. Vijaybhai Malabhai Bharvad

2019-02-12

A.J.DESAI

body2019
JUDGMENT : A.J. DESAI, J. 1. By way of the present petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed, as under: "10(A) This Hon'ble Court may be pleased to admit this Special Civil Application. (B) This Hon'ble Court may be pleased to issue the writ and any other appropriate, order or direction and quashed and set aside the impugned order dated 20.02.2015 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BS/5/2015. (C) This Hon'ble Court may be pleased to stay the implementation, execution and operation of the impugned judgment and order dated 20.02.2015 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BS/5/2015. (D) Grant such other and further relief/s as may be deemed just and proper in the circumstances of the case." 2. When the matter was listed for hearing before coordinate bench of this Court on 03/04/2018, coordinate bench has condoned the delay of three years in preferring the present petition challenging the impugned order and issued Notice and directed all the parties to this petition to maintain status quo with regard to the subject matter land. 3. Pursuant to the notice issued by this Court, private respondent No.1 has appeared through learned advocate Mr. K.K. Trivedi and filed affidavit-in-reply dated 19/06/2018 and opposed to grant any relief, as prayed for, by the petitioners and requested to vacate the ad-interim relief granted by this Court on 03/04/2018. 4. Short facts, arise from the record, are as under: That the land in question is situated at Village: Althan, Taluka: Majura, District: Surat bearing Survey No.2, Block No.5 admeasuring 2833 sq. mtrs. [now part of T.P.No.28 (Althan-Bhatar), Final Plot No.150 admeasuring 1983 sq. mtrs.]. Entry No.485 was mutated on 21/10/1958, by which, name of Shripatlal Chhaganlal was referred as owner and names of Keshav Kanji and Kanji Jivan were referred as tenants. The aforesaid entry was not certified. Thereafter, another entry No.577 was mutated on 18/08/1960 and it was declared that name of Shripatlal Chhaganlal as owner in earlier entry, has been wrongly mutated and in fact those two persons namely Keshav Kanji and Kanji Jivan were not tenants but they were owners of the property in question and accordingly, names of Bai Bhuli w/o. Kanji Jivan and Keshav Kanji were mutated vide mutation entry No.577 dated 18/08/1960. The said entry was certified on 20/09/1960. The said entry was certified on 20/09/1960. The land in question was sold for the first time by the legal heirs of Bai Bhuli w/o. Kanji Jivan and Keshav Kanji in the year 2003. The land was lastly purchased by the private respondent No.1 as third purchaser of the property in the year 2011. Private respondent intended to use the land other than agricultural purposes and therefore, submitted an application to convert the land for non-agricultural use and he may be permitted to use the said land for residential purposes. By order dated 05/07/2014, District Collector rejected the application on the ground that entry no.485 was not certified and subsequent entry no.577 was faulty and there was a restriction on transfer of the land, as provided u/s.43 of the Bombay Tenancy and Agriculture Land Act, 1948 (hereinafter referred to as "the Tenancy Act"). The said decision was challenged by the private respondent No.1 before Gujarat Revenue Tribunal by filing revision application u/s.76 of the Tenancy Act being Revision Application No.TEN/BS/5/2015. Learned Gujarat Revenue Tribunal by order dated 20/02/2015 allowed the revision application and it was held that the land is old tenure land. Hence, this petition. 5. Mr. J.K. Shah, learned Assistant Government Pleader appearing for the petitioners has vehemently submitted that learned Gujarat Revenue Tribunal has no jurisdiction to deal with the impugned order challenged before it. Learned Tribunal is not concerned with grant of use i.e. permitting or refusing to grant non-agricultural permission. He would submit that the order challenged before the Gujarat Revenue Tribunal dated 05/07/2014 was passed by the District Collector, in which, he has refused to grant Non-agricultural use permission and therefore, learned Tribunal has no jurisdiction to entertain the revision application. He would submit that as per entry no.485, Bai Bhuli w/o. Kanji Jivan and Keshav Kanji were not owners and they were tenants and therefore, they could not sold the property to third party and there is a restriction on transfer of the land as provided u/s.43 of the Tenancy Act and therefore, the Tribunal has committed an error in allowing the revision application. Hence, the impugned order passed by the Gujarat Revenue Tribunal may be quashed and set aside. 6. Mr.K.K.Trivedi, learned advocate appearing for the private respondent No.1 has vehemently submitted that the respondent authority has taken into consideration mutation entry no.485, which was mutated on 21/10/1958, however, was never certified. Hence, the impugned order passed by the Gujarat Revenue Tribunal may be quashed and set aside. 6. Mr.K.K.Trivedi, learned advocate appearing for the private respondent No.1 has vehemently submitted that the respondent authority has taken into consideration mutation entry no.485, which was mutated on 21/10/1958, however, was never certified. Thereafter, correction was made in the revenue record in the year 1960 and predecessor in title of private respondent were declared as owners of the property, so indirectly the Collector has exercised suo moto power after a period of 54 years about ownership of the property, keeping in mind the entry of the year 1958, which was never certified. He would submit that the Collector has decided the application for converting the land into non-agricultural, in exercise of power, which are available under the Tenancy Act and therefore, any order passed under section 43 of the Tenancy Act, is appealable u/s.76 of the Tenancy Act and therefore, learned Tribunal has rightly exercised his power. He would further submit that learned Tribunal has held that the land is of old tenure and predecessor in title of the respondent, continued on the said land for number of years and revenue record also suggests that the said entry remained in force since 1960 onwards. In support of his submission with regard to jurisdiction of the Gujarat Revenue Tribunal to entertain the revision application is concerned, he has relied upon unreported decision rendered by this Court in the case of State of Gujarat V/s. Mahmad Yusuf Ahmed Nagani delivered on 18/01/1999 in Special Civil Application No.6943 of 1998 and would submit that while dealing with the similar provision of the Saurashtra Gharkhed Tenancy Settlement and Agricultural Lands Ordinance, coordinate bench of this Court has held that though the Collector has exercised power under the Bombay Land Revenue Code while dealing with the case under the Tenancy Act, the learned Tribunal has rightly exercised his power. He therefore would submit that there is no substance in this petition and therefore, the same may be dismissed. 7. I have heard learned advocates appearing for the respective parties. It is undisputed fact that pencil entry No.485 was made in the revenue record with regard to land in question on 21/10/1958, wherein name of Shripatlal Chhaganlal was referred as owner of the property and names of Kanji Jivan and Keshav Kanji were referred as tenants. 7. I have heard learned advocates appearing for the respective parties. It is undisputed fact that pencil entry No.485 was made in the revenue record with regard to land in question on 21/10/1958, wherein name of Shripatlal Chhaganlal was referred as owner of the property and names of Kanji Jivan and Keshav Kanji were referred as tenants. Thereafter, another entry no.577 was mutated on 18/08/1960 and certified on 20/09/1960, by which, mistake committed in pencil entry was corrected and name of Shripatlal Chhaganlal as owner of the property was deleted and names of Bai Bhuli w/o. Kanji Jivan and Keshav Kanji were mutated as owners of the property in question. It is pertinent to note that the said entry No.577 was never challenged by Shripatlal Chhaganlal. This entry made in the year 1960 continued for number of years and names of their legal heirs were mutated in the revenue record. Ultimately, the land has been sold for the first time in the year 2011 and thereafter, private respondent purchased the said land in the year 2011. Respondent No.1, who was an agriculturist, applied to the District Collector for converting the said land to non-agriculture and to use the same for residential purpose, which was denied on the ground that there is a breach of tenancy in the year 1958 and 1960. Apart from this, the said entry No.577 was never challenged before the revenue authority and therefore, the Collector ought not to have relied upon entry no.485, which was not certified. The predecessor in title of the respondent no.1 themselves were cultivating the land for number of years. There would be no restriction on transfer of the land as provided u/s.43 of the Tenancy Act and, therefore, learned Tribunal has considered the said aspect and passed reasoned order, which does not call for any interference of this Court. 8. As far as jurisdiction of the Gujarat Revenue Tribunal is concerned, section 76 of The Gujarat Tenancy and Agricultural Lands Act, 1948, reads as under: "76(1) Notwithstanding anything contained in the [Bombay Revenue Tribunal Bom. 8. As far as jurisdiction of the Gujarat Revenue Tribunal is concerned, section 76 of The Gujarat Tenancy and Agricultural Lands Act, 1948, reads as under: "76(1) Notwithstanding anything contained in the [Bombay Revenue Tribunal Bom. Act, 1957] an application for revision may be made to the [Gujarat Revenue Tribunal] XXXI of constituted under the said Act against any order of the Collector [except an order under section 32P or an order in appeal against an order under sub-section (4) of section 32G] on the following grounds only:-; (a) that the order of the Collector was contrary to law, (b) that the Collector failed to determine some material issue of law, or (c) that there was a substantial defect in following the procedure provided by this Act or that there has been failure to take evidence or error in appreciating important evidence, which has resulted in the miscarriage of justice. (2) In deciding applications under this section the Gujarat Revenue Tribunal shall follow the procedure which may be prescribed by rules made under this Act after consultation with the Gujarat Revenue Tribunal." 9. It is true that the order challenged before Gujarat Revenue Tribunal rejecting the application for converting the land into non-agricultural use, however, the reasons stated therein with regard to applicability of section 43 of the Tenancy Act and therefore, the order passed with regard to section 43 of the Tenancy Act, is appealable u/s.76 of the Tenancy Act. 10. It is pertinent to note that after examining the record of the case, learned Tribunal by impugned order held that the land is of old tenure land and therefore, that part is not required to be quashed and set aside. Learned Tribunal has not directed the authority to grant permission, as prayed for and hence, the submissions made by the learned Assistant Government Pleader cannot be considered. 11. Having heard learned advocates appearing for the respective parties and considering the overall facts and circumstances of the case, there is no substance in this petition and therefore, the same deserves to be dismissed and is accordingly dismissed. Notice is discharged. Ad-interim relief, if any, stands vacated forthwith.