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2021 DIGILAW 1246 (GUJ)

DHOLUBEN JASABHAI GOHIL v. STATE OF GUJARAT

2021-12-21

A.P.THAKER

body2021
ORDER : 1. Present petition is filed by the petitioner praying to quash and set aside order passed by Revenue Secretary (Appeals) dated 30.7.2015 in Revision Application No.MVV/HKP/AML/ 112/2013 (Annexure-A) as well as the order passed by District Collector, Amreli, in Revision Case bearing No.88/2013 dated 29.10.2013 (Annexure-B). 2. The brief facts of the case are that one Gigubhai Panchabhai Gohil - grandfather of the petitioner was an agriculturist tilling the land bearing Survey No.212, 219 and 485 which is evident vide Entry No.176. Thereafter, vide promulgation order dated 01.10.1954 one Jasabhai Gigabhai Gohil, father of the petitioner came to be shown as the legal heir of Gohil Gigu Pancha by Entry No.176, which came to be mutated in the revenue record vide Entry No.1066 dated 02.01.1979. The petitioner states that thereafter said Jasabhai Gigabhai Gohil was tilling the said land. Thereafter, Jasabhai Gigabhai Gohil had obtained financial facility from Vikas Bank, but he could not repay the same and, therefore, the said land came to be vested in the Government vide entry No.1087 dated 07.06.1980. 2.1 Thereafter, the said proceedings came to be proceeded further and vide order dated 10.06.2002, the learned District Collector, Amreli, has once again re-granted the said land to the petitioner, which came to be mutated in the revenue record vide entry No.2402 dated 26.11.2002. 2.2 In the meantime, petitioner purchased land bearing Survey No.17 /12 admeasuring Hectare 1, 33 Are and 55 Sq.mtrs. of village Vadali, Taluka Jafrabad, District Amreli from its original owners Gohil Lakhabhai Unadbhai and Gohil Dadhubhai Unadbhai by registered sale deed dated 15.11.2000 registered at the office of the Sub-Registrar of Assurance vide Entry No.866 which, however, came to be approved on 04.02.2010 and certified in the record of rights only on 22.09.2010. 2.3 The petitioner had land in village Gangda, Taluka Una bearing A/c No.247, which is shown in village form No.7/12 and 8A and that the petitioner is shown at Sr.No.9 holding the entire land vide entry No.3069 and, therefore, the said sale deed dated 15.11.2000 came to be approved on 04.02.2010. The learned Talati cum Mantri has submitted that since it was not known as to whether the petitioner was an agriculturist or not, he requested learned Collector, Amreli, to take into suomotu revision the said entry No.3069 dated 04.02.2010 approving the sale deed dated 15.11.2000. The learned Talati cum Mantri has submitted that since it was not known as to whether the petitioner was an agriculturist or not, he requested learned Collector, Amreli, to take into suomotu revision the said entry No.3069 dated 04.02.2010 approving the sale deed dated 15.11.2000. Pursuant thereto, learned District Collector, called for a report from the Mamlatdar, Jafrabad. 2.4 Mamlatdar, Una, has submitted a report dated 06.09.2013 wherein he has shown the petitioner as agriculturist, she being the legal heir of Gohil Jasa Giga. It is in this connection submitted that vide entry No.3069 dated 10.9.2010 the petitioner is shown to be an agriculturist. Similarly vide entry No.3095 dated 27.10.2010 also petitioner has been shown to be the sole and exclusive owner of land bearing Survey No.212/0 admeasuring Hectare 1-12 ARE and 30 sq.mtrs. of Mouje Gangda and as joint owner/agriculturist of land bearing Survey No.485/1 of Mouje Gangda. The father of the petitioner Jasabhai Gigabhai Gohil is shown as agriculturist vide Entry No.176, 1066 and 3095 dated 01.10.1954, 16.01.1979 and 27.10.2010 respectively. Similarly, vide entry No.3096 dated 04.08.2010, petitioner has also been shown as agriculturist. In the aforesaid circumstance, the learned District Collector, Amreli, has issued a show cause notice dated 31.05.2013. 2.5 The petitioner had, vide communication dated 22.07.2013 gave detailed reply to the said show-cause notice and sent the same to the Mamlatdar, Una which, later on came to be submitted by the Mamlatdar, Una to the learned District Collector, Amreli on 06.09.2013. Though the petitioner had submitted her detailed written reply to the District Collector, the learned District Collector did not choose to give any personal hearing to the petitioner and suo-motu passed an order dated 29.10.2013 whereby he has directed to delete the entry No.866. 2.6 Being aggrieved by the said order dated 29.10.2013 passed by the learned District Collector, Amreli, the petitioner herein preferred Revision Application before the learned Revenue Secretary (Appeals), Ahmedabad being Revision Application No.112/2013. The petitioner had made written submissions before the learned Revenue Secretary (Appeals). However, the learned Revenue Secretary (Appeals) has been pleased to reject the Revision Application No.112/2013 preferred by the petitioner and has thereby confirmed the order dated 29.10.2013 passed by the District Collector vide order impugned dated 30.07.2015. Therefore, petitioner has preferred this petition under Article226 of the Constitution of India. 3. However, the learned Revenue Secretary (Appeals) has been pleased to reject the Revision Application No.112/2013 preferred by the petitioner and has thereby confirmed the order dated 29.10.2013 passed by the District Collector vide order impugned dated 30.07.2015. Therefore, petitioner has preferred this petition under Article226 of the Constitution of India. 3. Heard Mr.Yogesh Ravani, learned advocate for the petitioner, Ms.Dhwani Tripathi, learned AGP for respondent nos.1 to 3 and Mr.M.B.Parikh, learned advocate for respondent nos.4 and 5. 4. Mr.Yogesh Ravani, learned advocate for the petitioner submitted that the revenue authorities have erred in not appreciating the fact that Gohi Gigu Pancha, grandfather of the petitioner was an agriculturist and he was tilling the land and, therefore, father of the petitioner, Jasabhai Gigabhai Gohil being legal heir was also shown as an agriculturist. He submitted that the petitioner being daughter of said Jasabhai Gigabhai Gohil is also an agriculturist as held by this Court in the case of Kankuben J. Bharwad v. State of Gujarat and Another reported in 2006 (3) GLH 659 . In the said case, it was held that daughter of an agriculturist is also an agriculturist and such woman even if married to a non-agriculturist, that would not result in abolition of her status as an agriculturist. He further submitted that by Entry No.3069 dated 10.9.2010, the petitioner is shown to be an agriculturist possessing land bearing Survey No.212/p and land bearing Survey No.485/1 as joint owner of Mouje Gangda. 4.1 Mr.Ravani further submitted that the land in question was purchased by the petitioner from its original owners vide registered sale deed dated 15.11.2000. At the relevant time, as the land originally held by the petitioner was vested in government due to non-payment of dues of Vikas Bank, a question arose as to whether the petitioner is an agriculturist or not. He further submitted that due to this reason aforesaid Sale Deed was approved on 4.2.2010 and certified on 22.9.2010 and the petitioner was shown as an agriculturist vide entry no.3096 dated 4.8.2010. He also submitted that on 15.11.2000, the petitioner was also holding another land at Village-Gangda, therefore also, the authorities below have committed an error while passing impugned order. He also submitted that the Collector has not given any personal hearing to the petitioner and passed the order in violation of principles of natural justice. He also submitted that on 15.11.2000, the petitioner was also holding another land at Village-Gangda, therefore also, the authorities below have committed an error while passing impugned order. He also submitted that the Collector has not given any personal hearing to the petitioner and passed the order in violation of principles of natural justice. 4.2 Mr.Ravani also submitted that as the father of the petitioner could not repay the dues of Vikas Bank, the land was vested in Government on 7.6.1980 vide entry no.1087, thereafter, father of the petitioner began proceedings against such vesting of land and repaid entire dues of Vikas Bank and the land was re-granted to them vide order dated 10.6.2002 by Collector, Amreli. He submitted that, at the relevant time, the issue was sub-judice and the proceedings were going on, and ultimately the land is re-granted, therefore, it can be said that the petitioner and her father have never seized to be agriculturists. 4.3 He lastly submitted that Section 84-C of the Act does not prescribe any time limit for initiation of proceedings, however, in view settled legal position, whenever power is vested in a statutory authority without prescribing any time limit, such power should be exercised within a reasonable time and in the present case Sale Deed dated 15.11.2000 is certified on 22.9.2010 and the District Collector, Amreli has issued showcause notice on 31.5.2013, therefore, there is delay of 13 years. He has relied upon following decisions in support of his submissions. (i) Mohamad Kavi Mohamad Amin v. Fatmabai Ibrahim reported in (1997) 6 SCC 71 . (ii) State of Gujarat v. Amrutlal Hansrajbhai and Others reported in 2007 (3) GLH 743 . 4.4 In view of above, he has prayed to allow present petition. 5. On the other hand, Ms.Dhwani Tripathi, learned AGP for the respondent-State has supported impugned orders and submitted that entry no.3094 dated 17.10.2010 by which the petitioner got her name deleted from the record of rights is not placed on record. She further submitted that entry no. 866 is also not kept on record. She further submitted that land of the petitioner was vested in Government in 1980 and it was re-granted after payment of amount in 2002, therefore, for all these years, the petitioner was not holding any land. She further submitted that entry no. 866 is also not kept on record. She further submitted that land of the petitioner was vested in Government in 1980 and it was re-granted after payment of amount in 2002, therefore, for all these years, the petitioner was not holding any land. She submitted that in view of this fact and since the petitioner had got her name deleted from the record of rights by entry no.3094 dated 17.10.2020, it can be said that the status of agriculturist of the petitioner was not continued. In view of above, she has prayed to dismiss present petition. 6. Mr.M.B.Parikh, learned advocate for respondent nos.4 and 5 accepted the arguments of learned AGP and prayed to dismiss present petition. 7. Heard learned advocates for the parties, perused the material placed on record and considered the judgments cited at bar. 8. In the case of Mohamad Kavi Mohamad Amin (supra), the Apex Court has observed that where no time limit is prescribed for exercise of powers under a Statute, it should be exercised within reasonable time. In that case, the matter was relating to Bombay Tenancy and Agricultural Lands Act, 1966, and under Section 84-C suo motu inquiry was initiated by the Mamlatdar for the sale of land taking place in December 1972, the inquiry was started in September 1973. Considering these facts, the Apex Court held that suo motu power under Section 84-C was not exercised within reasonable time and, therefore, the impugned order of the revenue authority came to be set aside by the Apex Court. 9. In the case of Kankuben J. Bharwad (supra), it is held that a woman, whose father was an agriculturist, if marries to a non-agriculturist, that would not result into abolition of her status as an “agriculturist”. 10. In the case of State of Gujarat v. Amrutlal Hansrajbhai and Others (supra), this Court has observed as under:- “14. The question that falls for my consideration is, whether the respondents were the agriculturists within the meaning of the Ordinance or whether the transfer of the subject land in favour of the respondents was in contravention of the aforesaid Section 54. 15. It is indisputable that the above referred Section 54 does impose a bar on transfer of agricultural lands in favour of the non-agriculturists. 15. It is indisputable that the above referred Section 54 does impose a bar on transfer of agricultural lands in favour of the non-agriculturists. It is also not in dipspute that the respondents did own agricultural lands within the State of Rajasthan and were agriculturists there. The question is, whether the agriculturist in the State of Rajasthan can be said to be an agriculturist within the meaning of the Ordinance and whether it would be lawful for such agriculturist to purchase agricultural land within the State of Gujarat. For this purpose, it would be expedient to refer to certain definitions in the Ordinance. 16. Section 2 (c) of the Ordinance defines “agriculturist” to mean “a person who cultivates the land personally”. Clause (f) thereof defines “to cultivate” to mean “to carry on any agricultural operation”. Clause (g) thereof defines “to cultivate personally” to mean “to cultivate on one's own account- (1) by one's own labour, or (2) by the labour of any member of one's family, or (3) by servants on wages payable in cash or kind, but not in crop-shares or by hired labour, under one's personal supervision or of any member of one's family; Explanation I.- xxxxx xxxxx xxxxx Explanation II.- xxxxx xxxxx xxxxx”. Clause (k) thereof defines “land” to mean “land which is used for agricultural purposes and includes:- (a) xxxxx xxxxx xxxxx (b) xxxxx xxxxx xxxxx” 17. These definitions disclose that to be an 'agriculturist', a person has to cultivate the land personally i.e. he has to cultivate the land on his own account by his own labour, or by the labour of any member of his family, or by servants on wages payable in cash or kind or by hired labour under his personal supervision or under the supervision of any member of his family.” 10.1 After considering the facts of the case, it was held that though transfer was made in contravention of the Ordinance, the State could not explain the delay of four years in instituting the proceedings and action of the authority, which was set aside by the Tribunal, was upheld by this Court. 11. It is an admitted fact that at the relevant time, the father of the petitioner was having agricultural land and for the said land, some amount of financial facility was not repaid by him and the land was vested in Government. 11. It is an admitted fact that at the relevant time, the father of the petitioner was having agricultural land and for the said land, some amount of financial facility was not repaid by him and the land was vested in Government. The issue raised by the State is that during the period from 1982 to 2002, no land was in the name of the petitioner or father in the revenue record. It can be seen from record that father of the petitioner began proceedings against vesting of land and repaid entire dues of Vikas Bank and the land was re-granted to them vide order dated 10.6.2002 by Collector, Amreli. At the relevant time, the issue was sub-judice and the proceedings were going on, and ultimately the land is re-granted. Therefore, as there was litigation between the parties with regard to vesting of land, status of agriculturist cannot be said to have come to an end, merely by passing an administrative order, which was under challenge. 12. It is also clear from the record that alleged sale transaction has taken place in 2000 while show cause notice came to be issued in the year 2013. As observed in the decision cited before this Court, where no time limit is prescribed for exercise of powers under a Statute, it should be exercised within reasonable time, which is not done in present case and there is huge delay of 13 years. 13. In view of above discussion, present petition is allowed. Impugned order dated 30.7.2015 passed by Revenue Secretary (Appeals) in Revision Application No.MVV/HKP/AML/ 112/2013 (Annexure-A) as well as order dated 29.10.2013 passed by District Collector, Amreli, in Revision Case bearing No.88/2013 (Annexure-B) are quashed and set aside. No order as to costs. Direct service is permitted.