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2019 DIGILAW 820 (GUJ)

Keshavbhai Harjibhai v. State Of Gujarat

2019-09-20

VIPUL M.PANCHOLI

body2019
JUDGMENT : 1. Rule. Learned AGP Mr. K.M. Antani waives service of notice of Rule for respondents – State. 2. Since the issue involved in both petitions is similar, with the consent of learned advocates appearing for the parties, both petitions are heard together and are being decided by this common order. 3. Special Civil Application No.6346/2016 has been filed by the petitioners challenging the order dated 20.11.2015 passed by the respondent – SSRD in Revision Application No.12 of 2013 and the order dated 23.09.2013 passed by the respondent – Collector, Bhavnagar in RO/Gharkhed/Remand Case No. 36 of 2012-13. 4. Special Civil Application No.6347/2016 has been filed by the petitioners challenging the order dated 21.11.2015 passed by the respondent – SSRD in Revision Application No.13 of 2013 and the order dated 23.09.2013 passed by the respondent – Collector, Bhavnagar in RO/Gharkhed/Remand Case No. 18 of 2012-13. 5. Heard learned advocate, Mr. Trilok Patel for the petitioners and learned AGP Mr. K.M. Antani for the respondents – State in both matters. 6. For sake of convenience, the facts of Special Civil Application No.6346/2016 are referred, 6.1 The petitioners were born in the family of the agriculturist and they are possessing and occupying the land bearing Survey No.9 admeasuring 1 Hector 71 Are 99 Sq.Mtrs. situated in Village : Bhadbhid, Taluka & District : Bhavnagar since last many years. It is stated that in the revenue record of the land in question, name of ancestors of the petitioners have been mutated as the forefather of the petitioners were agriculturists, for which, revenue records are produced on record. 6.2 It is stated that after the death of great grandfather of the petitioners, the name of the grandfather was entered in the revenue record vide Entry No.635. After the death of the grandfather of the petitioners, the name of the father of the petitioners viz., Harjibhai Lavjibhai was entered in the revenue record vide Entry No.1274. After the death of the father of the petitioner, the names of the petitioners were entered in revenue record vide Entry No.1347 on 08.02.2013. It is, therefore, contended that the petitioners are the agriculturists, who were born in the family of the agriculturist and the petitioners are holding the land in question. After the death of the father of the petitioner, the names of the petitioners were entered in revenue record vide Entry No.1347 on 08.02.2013. It is, therefore, contended that the petitioners are the agriculturists, who were born in the family of the agriculturist and the petitioners are holding the land in question. 6.3 It is further contended that the petitioners being agriculturists have purchased the land bearing Survey No.15 paiki admeasuring 10 Acre 2 Guntha of Village : Bhadbhid, Taluka & District : Bhavnagar (hereinafter referred to as “land in question”) in the year 1991 from the original land owners viz., Rekhaben Jerambhai and others by executing registered sale deed executed, which was registered on 09.07.1999 and Entry No.717 was mutated in the revenue record on 17.06.2000, which was duly certified by the revenue authority and since then petitioners are in possession and occupation of the land in question. 6.4 Thereafter somewhere in the year 2007, upon recommendation of RTS team, the respondent – Collector initiated proceedings under Section 54 of the Saurashtra Gharkhed Tenancy Settlement & Agriculture Lands Ordinance, 1949 (hereinafter referred to as “Gharkhed Act”) by registering R.O. Gharkhed/Case No.26 of 2006-07 on the ground that the transaction in question is in contravention of the provision contained in Section 54 of the Gharkhed Act as the transfer is made in favour of non-agriculturist. In pursuance thereto, the petitioners appeared before the respondent authority and pointed out correct facts. However by an order dated 14.05.2007, the respondent – Collector declared the transaction entered into by the petitioners as against the provision of the Section 54 of the Gharkhed Act and passed an order of summary eviction of the petitioners from the land in question. The petitioners, therefore, preferred Revision Application before the respondent – SSRD and the respondent – SSRD by an order dated 03.02.2012 set aside the order passed by the respondent – Collector and the matter was remanded back to the respondent – Collector for deciding the issue afresh. 6.5 After the remand of the matter, the respondent – Collector once again passed similar order on 23.09.2013 and, therefore, the petitioners once again preferred Revision Application before the respondent – SSRD. However, the respondent – SSRD by impugned order dated 20.11.2015 dismissed the said Revision Application and thereby confirmed the order passed by the respondent – Collector and, therefore, the present petition is filed by the petitioners. However, the respondent – SSRD by impugned order dated 20.11.2015 dismissed the said Revision Application and thereby confirmed the order passed by the respondent – Collector and, therefore, the present petition is filed by the petitioners. 7. Learned advocate, Mr. Trilok Patel has assailed the impugned orders passed by the respondents authorities mainly on the ground that there is delay of more than 8 years in initiating the proceedings under the Gharkhed Act and, therefore on the ground of delay, the impugned orders passed by the respondents authority be quashed and set aside. At this stage, learned advocate has placed reliance upon the decisions rendered by this Court in case of Rinki Shashikant Gandhi Vs. Mamlatdar, Vadodara Taluka, reported in 2012 (2) GLR 1275 as well as the decision of the Hon’ble Supreme Court in case of the State of Gujarat Vs. Patel Raghav Natha, reported in (1969) 2 SCC 187 . 8. Learned advocate for the petitioners thereafter contended that if the petitioners were born in the family of the agriculturist, the name of the father of the petitioners was also mutated in the revenue record for the land bearing Survey No.9 and even after the death of the father of the petitioners, the name of the petitioners are also mutated in the revenue record and, therefore, when the petitioners are agriculturalist and holding the agriculture land, it cannot be said that the petitioners are not agriculturist and the transaction entered into between the petitioners and the concerned seller is in violation of the provision contained in Section 54 of the Gharkhed Act. 9. Learned advocate for the petitioners has also placed reliance upon the decisions of this Court in case of Kankuben J. Bharwad Vs. State of Gujarat & Anr., reported in 2006 (3) GLH 659 and in case of Babiben Rikhavchand Doshi Vs. Deputy Collector, Tharad & Ors., reported in 1986 GLH 845 . Relying upon the said decision, it is contended that even after the marriage of the daughter, she would continue to retain the status of agriculture and in the facts of the present case, the petitioners are the sons of the agriculturists as their forefathers were the agriculturist and, hence, the status of agriculturist would continue to remain upon them. It is, therefore, urged that the impugned orders passed by the respondent authorities be quashed and set aside. 10. It is, therefore, urged that the impugned orders passed by the respondent authorities be quashed and set aside. 10. On the other hand, learned AGP has opposed both petitions and mainly contended that if the transaction entered into by the petitioners is nullity, limitation period would not be applicable and when the respondent – Collector came to know about the transaction entered into by the petitioners with the concerned seller, the proceedings were initiated under the provision of Section 54 of the Gharkhed Act and, thereafter after giving an opportunity of hearing, the impugned order is passed by the Collector and, therefore on the ground of delay in initiating the proceedings, the impugned orders may not be set aside. 11. It is further submitted that the respondent – Collector has also not committed any error while giving direction to the concerned Mamlatdar to summarily evict the petitioners from the land in question as per the provision of Section 75 of the Gharkhed Act and, therefore, this Court may not quash and set aside the impugned orders. Learned AGP has also submitted that the decision upon which the reliance is placed by learned advocate for the petitioners would not be helpful to him in the facts of the present case. 12. Having heard learned advocates appearing for the parties and having gone through the material placed on record, it has emerged that the forefather of the petitioners were agriculturists and their names are mutated in the revenue records vide different entries with regard to the land in question. Even after the death of the father of the petitioners, their names are also mutated in the revenue record vide entry no.1347. Thus from the material placed on record, it is clear that the petitioners are agriculturist and are the owners and occupiers of the land bearing Survey No.9. 13. Even after the death of the father of the petitioners, their names are also mutated in the revenue record vide entry no.1347. Thus from the material placed on record, it is clear that the petitioners are agriculturist and are the owners and occupiers of the land bearing Survey No.9. 13. It is further revealed that the petitioners have purchased the land in question from its original owner viz., Rekhaben Jerambhai and others by registered sale deed dated 09.07.1999 and after a period of approximately more than 8 years, the respondent – Collector issued show cause notice to the petitioners alleging contravention of the provision contained in Section 54 of the Gharkhed Act and, thereafter, now the impugned order is passed by the respondent – Collector, whereby the respondent – Collector has held that petitioners are not the agriculturists and, therefore, transaction entered into by the petitioners by executing sale deed dated 09.07.1991 is in violation of Section 54 of the Gharkhed Act and, therefore, the respondent – Collector has directed the Mamlatdar to take possession of the land in question and order for summary eviction of the petitioners from the land in question and the said order is confirmed by the respondent – SSRD. 14. From the aforesaid facts of the present case, it is revealed that the respondent – Collector has exercised the powers after a period of 8 years from the date of transaction. The respondent – Collector initiated the proceedings for the alleged violation of Section 54 of the Gharkhed Act on the basis of the report given by RTS team. It is well settled that the suo motu powers are required to be exercised within reasonable time. 15. The Division Bench of this Court in case of Bharatbhai Naranbhai Vegda & Ors. Vs. State of Gujarat & Ors., reported 2016 (2) GLR 1021 has considered similar type of facts and, thereafter, the Division Bench of this court in Para Nos.10 and 12 held as under, “10. In our view, the above referred well considered two decisions of this Court makes the position abundantly clear that if the action is to be initiated for setting aside of a transaction under the Ordinance by invoking section 54 read with section 75 of the Ordinance, it has to be within reasonable period. In our view, the above referred well considered two decisions of this Court makes the position abundantly clear that if the action is to be initiated for setting aside of a transaction under the Ordinance by invoking section 54 read with section 75 of the Ordinance, it has to be within reasonable period. The above referred two decisions are in respect of the cases wherein the powers were exercised and proceedings were initiated after 5 years and 17 years respectively, whereas in the present case, it is after more than 35 years. Hence, we find that the initiation of the action itself can be said as beyond reasonable period and the bar of delay and laches could operate against the authority in initiation of the action. The aforesaid aspect is coupled with two additional circumstances, one is that the land has changed hands further during the period of delay and the ownership is transferred by the purchaser to the another person and the second is that the revenue entries were mutated. Thereafter, they were also certified by the competent authority and in spite of that, no action was taken for cancellation of such entry or otherwise or even for declaration of the transaction as invalid within reasonable period. If during the period of delay, the rights of the parties in the properties are altered, the delay would operate as a bar with more gravity and when the ownership is changed during the period of delay, the bar for not taking action within reasonable period would also operate with more gravity against the authority in initiation of the action. 12. We may first consider the question for interference to the order passed by the learned Single Judge. There cannot be second opinion on the aspect that if two views are possible and the learned Single Judge has taken one view, the Division Bench of this Court in exercise of the jurisdiction under Letters Patent would be loathe to interfere and may not entertain the appeal, but in a case where only one view was possible or that well settled legal position is not considered, which goes to the root of the matter for the jurisdiction of the authority, such would be an appropriate case for interference for exercise of the jurisdiction under the Letters Patent. Examining the case on the said aspects, we find that as per the above referred decisions of the Apex Court, the limitation provided for initiation of the action or the consideration of the reasonable period for initiation of the action or the bar operating of delay for initiation of the action are jurisdictional aspects on the power of the authority which has initiated the action. If as per the well settled principles of law, the bar of delay operates against the exercise of the jurisdiction or that the initiation of the action is beyond reasonable period as per the well settled principles of law, the action can be said as without jurisdiction. If an action is without jurisdiction, as observed by the Apex Court in the above referred decision in the case of State of Punjab (supra), the petition under Article 226 of the Constitution can be maintained and the jurisdiction of this Court under Article 226 of the Constitution can be invoked. If the action is decided on the ground of jurisdiction and found to be without jurisdiction by the Court while undertaking judicial scrutiny under Article 226 of the Constitution, the only view possible is that of the action without jurisdiction. If the action was without jurisdiction, we do not see that it would fall in the arena of discretion to be considered while exercising the power under Article 226 of the Constitution. We may record that the contention is not based on the conduct on the part of the petitioners which may lead the Court to decline the interference but the contention is on the ground that two views were not possible as against the settled legal position on the point of reasonable period and the delay for initiation of the action. Hence, we find that it is a fit case for interference with the order passed by the learned Single Judge and it cannot be said to be outside the jurisdiction of the appellate power of the Division Bench of this Court in Letters Patent as sought to be canvassed.” 16. Similarly in case of Raghav Natha (supra), the Hon’ble Supreme Court has held that even if no period of limitation is prescribed, power is required to be exercised within reasonable time i.e. within a few months. Similarly in case of Raghav Natha (supra), the Hon’ble Supreme Court has held that even if no period of limitation is prescribed, power is required to be exercised within reasonable time i.e. within a few months. In the present case, it is not in dispute that the respondent – Collector has issued show cause notice after a period of approximately 8 years from the date of transaction and, therefore, this Court is of the view that the impugned orders passed by the respondent authorities deserve to be set aside only on this ground. 17. At this stage, it is also required to be observed that the petitioners were born in the family of the agriculturist and forefather of the petitioners were agriculturists, therefore, the names were mutated in the revenue record and entries mutated in the revenue record with regard to the land bearing Survey No.9 are placed on record. It is also not in dispute that after the death of the father of the petitioners, their names are also mutated in the revenue record with regard to the said land. 18. At this stage, the decisions upon which reliance has been placed by learned advocate for the petitioners are required to be considered. 18.1 In the decision of this Court in case of Kankuben J. Bharwad (supra), this Court has observed in Para No.6 as under, 6. If the facts of the present case are examined in light of the above observations of this Court, it appears that it is an admitted position that the petitioner is the daughter of an agriculturist Bharwad Hathabhai Kamabhai. It is also an admitted position that Bharwad Hathabhai Kamabhai, was an agriculturist holding the agricultural land in the same village Akrand. Therefore, it cannot be said that the petitioner was not legal heir to inherit the land in question held by her father Bharwad Hathabhai Kamabhai, who was admittedly an agriculturist on the date when the transaction took place. Merely because the petitioner has married to a non-agriculturist, would not result into abolition of her status as an agriculturist. Therefore, all the Authorities have proceeded on the wrong basis that once a Hindu female has married to a non-agriculturist, she looses her status as an agriculturist as per the provisions of the Act. Merely because the petitioner has married to a non-agriculturist, would not result into abolition of her status as an agriculturist. Therefore, all the Authorities have proceeded on the wrong basis that once a Hindu female has married to a non-agriculturist, she looses her status as an agriculturist as per the provisions of the Act. Even before the Tribunal, though the Judgment was relied upon and the copy of the said Judgment was also produced, the Tribunal has instead of following the Judgment, distinguished the Judgment by observing that in the said case the interest of the land was being looked after by the brothers of the family. In the present case, the interest was being looked after by the father of the petitioner. Such a distinction in my view was not required to be made Page 1928 since the position would be the same if brothers are to look after the land of the Hindu female, who has married to a non-agriculturist or the father is to look after the land of the Hindu female, if she has married to a non-agriculturist. The crucial aspect, which was required to be considered by the Tribunal was whether the petitioner could be said to have lawful interest in the agricultural land held by the father or not and if the answer is in affirmative, she continues to retain the status of an agriculturist, even if her marriage has taken place. Even after the marriage, such status as daughter of an agriculturist and thereby agriculturist, as per the provisions of the Act would remain unaltered. Under these circumstances, it appears that all the authorities including the Tribunal have committed ex facie error on the face of the record and the Judgment of the lower authorities cannot be sustained in view of the decision of this Court in case of Babiben Rikhavchand Doshi(supra). 18.2 In the decision of this Court in case of Babiben Rikhavchand Doshi (supra), this Court has observed in Para No.7 as under, “7. The term ‘family’ is not defined to limit its scope and application. 18.2 In the decision of this Court in case of Babiben Rikhavchand Doshi (supra), this Court has observed in Para No.7 as under, “7. The term ‘family’ is not defined to limit its scope and application. It is in this context that referring to the word ‘family’, J.B. Mehta, J., observed in Special Civil Application No. 1199 of 1966 decided on 18th June, 1970 as under : “It is in that context that the expression ‘family’ must be construed in wider sense to include all persons related by blood or marriage, and brother or brother’s sons would be family members.” It is true that J.B. Mehta, J., was considering a case in relation to Section 4 but that should not make any difference since he was considering the term ‘family’ and it is in that context that he observed that it must be construed in a wider sense to include all persons related by blood or marriage. I am in respectful agreement with this observation made by J. B. Mehta, J. Merely because a woman marries in another family, she does not cut off or sever her relations with her family of birth so that her relations by blood cease to be her family members. On marriage a woman goes to her husband’s house but does that mean her relations with her parental family are totally snapped? Does it mean that her brothers cease to be her family members? Is it permissible and necessary to give such a narrow meaning to the word ‘any member of one’s family’ used in Section 2(6) of the Act, particularly when the Act does not manifest an intention to restrict its scope and amplitude? I am of the view that the expression must be construed in a wider sense as observed by J. B. Mehta, J. I am, therefore, of the view that her brothers who were cultivating the land on her behalf as well as on behalf of the other co-owners were doing so as her family members. In this view that I take, I think the Tribunal was wrong in reversing its earlier view in a review application. The Tribunal’s approach that a woman whose husband is a shopkeeper can never be an agriculturist must be stated to be rejected. If a woman is an agriculturist before marriage she cannot cease to be an agriculturist merely because she marries a shop-keeper. The Tribunal’s approach that a woman whose husband is a shopkeeper can never be an agriculturist must be stated to be rejected. If a woman is an agriculturist before marriage she cannot cease to be an agriculturist merely because she marries a shop-keeper. A woman is entitled to her own occupation distinct from that of her husband. She does not lose her identity on marriage, she is entitled to pursue her own occupation or avocation, including that of an agriculturist. I am, therefore, of the view that in review the Tribunal betrayed a very narrow approach.” 19. From the aforesaid decisions, it can be said that the daughter born in the family of the agriculturist, even if marries to a non-agriculturist, that does not result into abolishing of her status as an agriculturist. Therefore in the facts of the present case, the petitioners are the sons of the agriculturist and they were born in the family of the agriculturist and, hence, naturally they continue to retain the status of agriculturists. 20. In that view of the matter, when the petitioners are holding the agriculture land as agriculturists, there was no reason for the respondent – Collector to initiate proceedings under Section 54 of the Gharkhed Act for the alleged violation on the ground that the petitioners are not agriculturists. 21. In view of the aforesaid facts of the present case, I am inclined to exercise powers under Article 226 of the Constitution of India by quashing and setting aside the impugned orders passed by the respondent authorities. 22. Therefore, both petitions are allowed. The impugned orders produced at Annexure-A & B of the respective petition are hereby quashed and set aside. Rule is made absolute. Direct service is permitted.