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2019 DIGILAW 884 (GUJ)

Musabhai Jivabhai Sarmali v. State of Gujarat

2019-10-10

V.M.PANCHOLI

body2019
ORDER : V.M. Pancholi, J. 1. This petition is filed under Articles 226 and 227 of the Constitution of India in which the petitioner has prayed for the following reliefs: "8(A) That this Hon'ble Court may be pleased to admit this petition. (B) That this Hon'ble Court be pleased to quash and set aside the Judgment and Order dated 29.11.2016 passed by the Joint Secretary, Revenue Department (Appeals), Ahmedabad rejecting the Revision Application No. MVV/BKP/BVN/5/2011 filed by the petitioner and further be pleased to quash and set aside the order dated 24.12.2008 passed by the District Development Officer converting land bearing Surey No. 259/Paiki/3 and 259/Paiki/3/Paiki/1 admeasuring 44516 sq.meters situated in Palitana in Bhavnagar District, into non agricultural land by the District Development Officer, Bhavnagar. (C) Pending admission and/or final disposal of the present petition, this Hon'ble Court be pleased to stay the execution, operation and implementation of the Judgment and Order dated 24.12.2008 and also stay the operation of the order dated 24.12.2008 passed by the District Development Officer converting land bearing Survey No. 259/Paiki/3 and 259/Paiki/3/Paiki/1 admeasuring 44516 Sq. Meters situated in Palitana in Bhavnagar District, into non agricultural land by the District Development Officer, Bhavnagar. (D) That this Hon'ble Court be pleased to grant such other and further reliefs as may be deemed fit and proper in the facts and circumstances of the case. (E) That this Hon'ble Court be pleased to award cost of the petition from the respondents." 2. Heard learned advocate Mr. Zubin Bharda for the petitioner and learned Assistant Government Pleader Ms. Divyangna Jhala for the respondent-State. 3. It is submitted by learned advocate for the petitioner that the petitioner is the original owner of the agricultural land bearing survey/block no. 259 paiki 3/2 paiki 1 which is situated at Palitana, District Bhavnagar. The aforesaid land was sold to one Kanaiyalal S Bachani by the petitioner. It is alleged that at the time of execution of the said sale deed, Kanaiyalal Bachani misrepresented himself to be an agriculturist. 4. It is further stated that upon inquiry made by the petitioner, it was revealed that said Kanaiyalal Bachani had got his name entered by the preparing a false pedigree of one Harinarayan Ganpatray, by claiming to be legal heir and got his name entered as legal heir of the said agriculturist. 4. It is further stated that upon inquiry made by the petitioner, it was revealed that said Kanaiyalal Bachani had got his name entered by the preparing a false pedigree of one Harinarayan Ganpatray, by claiming to be legal heir and got his name entered as legal heir of the said agriculturist. It is further submitted that in tenancy proceedings, Collector Kheda passed an order dated 8.6.2008 and thereafter issued show cause notice to the said person as to why the revenue entry no. 2224 of heirship should not be taken into revision and cancelled. Thereafter, the Collector, after hearing the parties, cancelled the revenue entry and directed that the fresh pedigree of Harinarayan Ganpatray be prepared in which the name of Kanaiyalal Bachani did not figure as legal heir. 5. It is further submitted that Kanaiyalal Bachani challenged the said order before SSRD. SSRD rejected the said revision application. 6. Learned advocate Mr. Bharda thereafter submitted that though said Kanaiyalal Bachani was not an agriculturist, his name was mutated in the revenue record vide entry no. 4419 on the basis of the earlier revenue entry no. 2224 in the revenue record of village Balol Taluka Mahudha, District Kheda. The said entry was certified. Thereafter, name of his sons were entered into the revenue record as co-owner of the said property. 7. It is further submitted that said Kanaiyalal Bachani and his two sons sold the property to Chavda Ajmalbhai Nathabhai by registered sale deed dated 5.3.2007 and entry no. 4959 came to be mutated in the revenue record on 13.3.2007. Thereafter, Ajmalbhai Nathabhai sold the land to one Chandrasingh Hemantsingh Sarvaiya and therefore name of respondent no. 8 came to be mutated in the revenue record. Portion of the land was sold to one Shardaben Rao and therefore necessary entry was mutated. 8. At this stage, it is submitted that respondent nos. 8 and 9 made an application to District Development Officer seeking permission to convert the land in question into non-agricultural land. Proceedings for conversion of the land into non-agricultural land came to be registered as DP/LNP/Case no. 65 of 2008-09. 8. At this stage, it is submitted that respondent nos. 8 and 9 made an application to District Development Officer seeking permission to convert the land in question into non-agricultural land. Proceedings for conversion of the land into non-agricultural land came to be registered as DP/LNP/Case no. 65 of 2008-09. It is further submitted that without taking into consideration the order passed by the Collector, Kheda whereby entry of heirship in the name of Kanaiyalal Bachani as an agriculturist was cancelled from the revenue record with regard to the other land, the order was passed by the DDO by which the land in question is converted into non-agricultural land. The petitioner, therefore, challenged the said order passed by the DDO by filing revision application before SSRD. SSRD has rejected the revision application and therefore this petition is filed. 9. Learned advocate Mr. Bharda would contend that Kanaiyalal Bachani was not an agriculturist, inspite of that, the land in question was purchased by him from the petitioner. The heirship entry by which the name of said Kanaiyalal Bachani was mutated has been cancelled by the concerned revenue authority and therefore he was not an agriculturist, inspite of that, the land in question was purchased by him and therefore the respondents authorities have committed an error while granting permission to the respondent nos. 8 and 9 for conversion of the agricultural land into non-agricultural use. It is therefore urged that the impugned orders be quashed and set aside. 10. This Court has considered the submissions of learned advocate for the petitioner and also gone through the material placed on record. It is required to be noted that the petitioner has already sold the land in question to Kanaiyalal Bachani by registered sale deed in the year 2002. Thus, the petitioner has pocketed the amount of consideration. It is further revealed from the record that in the separate proceedings filed against Kanaiyalal Bachani, the mutation entry was cancelled with regard to some other land. However, fact remains that thereafter name of Kanaiyalal Bachani and his two sons were entered into revenue record with regard to the land in question and thereafter the said persons sold the land to Chavda Ajmalbhai Nathabhai in the year 2007. However, fact remains that thereafter name of Kanaiyalal Bachani and his two sons were entered into revenue record with regard to the land in question and thereafter the said persons sold the land to Chavda Ajmalbhai Nathabhai in the year 2007. Said Ajmalbhai also sold the land in question to one Chandrasingh Sarvaiya on 25.9.2007 and thereafter portion of the land was sold to one Shardaben Rao i.e. present respondents no. 8 and 9 respectively. Now the respondent nos. 8 and 9 have submitted an application for conversion of the land from agricultural to non-agricultural use. DDO, after verification, granted such permission and at that stage the petitioner has challenged the said order of DDO by filing revision application before the respondent SSRD. 11. In the aforesaid facts and circumstances of the present case, this Court is of the view that the petitioner has no locus standi to challenge the order passed by the DDO in favour of the respondent nos. 8 and 9. The decision rendered by the Division Bench of this Court in the case of Parshottambhai Dhanjibhai Patel V/s Shivganga Farms Pvt. Ltd. dated 29.6.2018 passed in Letters Patent Appeal No. 490 of 2018 is required to be kept in mind while deciding the present petition. The Division Bench of this Court, while considering the provisions contained in Sections 63 and 84C of the Bombay Tenancy and Agricultural Lands Act, 1948, observed 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 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. 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." 12. In view of the aforesaid facts and circumstances of the present case, this Court is of the view that no error is committed by the respondent SSRD while dismissing the revision application. Hence, this petition is required to be dismissed and is accordingly dismissed.