Research › Search › Judgment

Gujarat High Court · body

2022 DIGILAW 1527 (GUJ)

Himatbhai Kalabhai Sarikhada v. State Of Gujarat

2022-11-08

A.Y.KOGJE

body2022
JUDGMENT : 1. Rule. Learned AGP waives service of rule on behalf of respondents. 2. This petition under Article 226 of the Constitution of India is filed against the order dated 27.03.2018 passed by the Special Secretary in Revision Application No.40 of 2017. By the aforesaid order, the Special Secretary, Revenue Department had confirmed both the order of the Collector, Amreli dated 01.09.2017 in Appeal No.65 of 2017 and order dated 14.03.2017 by the Deputy Collector, Lathi and order dated 23.08.2016 passed by the Deputy Mamlatdar (Revenue) Lathi. The essential issue is with regard to the entry No.2315 and 4581 pertaining to purchase two plots of land by registered sale deed bearing revenue survey No. 368. Thereafter, entry regarding sale by the petitioner of another plot of land being survey No.400 on 31.05.2006 to a third party. By the order, Deputy Mamlatdar had rejected the entry on the ground that the issue whether the petitioner was farmer/agriculturist could not be verified and therefore, he had no right to deal with agricultural land. 3. Learned advocate for the petitioner submitted that grand father of the petitioner as well as father of the petitioner belonging to Scheduled Caste, were agriculturists of village Varsada and were holding Khata No.76 and were owners and occupiers of survey No.269. This fact was recognized by entry No.75 of the promulgation of old Vadodara State and therefore, the petitioner was also an agriculturist by birth. It is submitted that when the petitioner was minor in the year 1976, father of the petitioner had sold of agricultural land, but immediately thereafter, in the year 1977 the father of the petitioner purchased another piece of land bearing survey No. 400/paiki 1 of village Varsada which at the relevant time was under a ‘Banakhat’. The name of the mother of the petitioner was mutated in connection with survey No.400 paiki 1 in the year 1996 on the basis of a registered sale deed with entry No.2291 and it is thereafter that the petitioner had entered into transaction which was in the year 2016 and therefore, the petitioner was indeed an agriculturist. The name of the mother of the petitioner was mutated in connection with survey No.400 paiki 1 in the year 1996 on the basis of a registered sale deed with entry No.2291 and it is thereafter that the petitioner had entered into transaction which was in the year 2016 and therefore, the petitioner was indeed an agriculturist. This aspect is completely given a gobye by the authorities including SSRD and by treating the petitioner as non-agriculturist, not only the entry with regard to the petitioner’s land, and transaction was cancelled, but by the impugned order passed by the Collector, directions were also issued to take into the revision entry Nos.2291 and 3791 by invoking Section 84C of the Bombay Land Revenue Code. 3.1. Learned advocate for the petitioner submitted that the petitioner who was a agriculturist by birth and that had remained connected with the agriculturist activity throughout, may not be treated as non-agriculturist without taking into consideration the averments of the petitioner about the father and grand father of the petitioner being agriculturist of the very same village. It is submitted that the authorities have disregarded such contention of the petitioner, merely by stating that the petitioner has not produced sufficient evidence on record in connection with the fact of father and grand father being a agriculturist. 4. Learned advocate for the petitioner has relied upon decision of this Court in case of Bavani Kanpari Balpari v/s. State of Gujarat in Special Civil Application No.19629 of 2017, particularly observations made in para-5.2. 5. Learned Assistant Government Pleader opposing the grant of petition justified the order passed by the authorities at three stages, stating that the authorities have given concurrent finding of facts and have not accepted the status of the petitioner as an agriculturist on the basis no evidence being produced by the petitioner in this regard. 5. Learned Assistant Government Pleader opposing the grant of petition justified the order passed by the authorities at three stages, stating that the authorities have given concurrent finding of facts and have not accepted the status of the petitioner as an agriculturist on the basis no evidence being produced by the petitioner in this regard. Learned AGP submitted that the authorities were justified in holding that the petitioner could not make out a case on the basis of evidence of their father and grand father being agriculturist nor the petitioner could make out a case that after sale of their ancestral land in the year 1976, the father of the petitioner had purchased agricultural land in the year 1977 as the same was under a ‘Banakhat’ and only in the year 1976, registered sale deed was executed in connection with the land for which Banakhat was executed for the year 1977. Therefore, for long gap between 1977 to 1996, the petitioner was not an agriculturist. 6. The Court has heard learned advocates for the parties and perused the documents placed on record. It is a case of the petitioner that the petitioner belongs to Schedule Cast and is legal heir of late Naranbhai Sangabhai (Grandfather) and late Kalabhai Naranbhai Sarikhda(Father), who were holding ancestral agricultural land in village Varsada of Amreli Taluka having account holder and farmer in Account No.76 land for survey nos. 269 and entry no. 75 of promulgation old Vadodara State and hence petitioner is farmer by birth. From 10.01.1960, the said land was jointly in the name of Khimabhai Naranbhai(Uncle of the petitioner) and Kalabhai Naranbhai (Father of the petitioner) as grandfather of the petitioner, Naranbhai was expired and entry No.773 was made to that effect in record of rights. Thereafter on 25.12.1975, family arrangement was made and land Sr. No. 269 came to the share of father of the petitioner. A revenue entry No. 1321 was made to that effect in revenue record. On 04.06.1976 when petitioner was minor, his father Kalabhai had to sold away the land which was came to his share as the father of the petitioner was suffering from serious illness of Cancer. A revenue entry No.1342 was made to that effect in record of rights. But thereafter immediately on 03.02.1977, the father of the petitioner had purchased the land survey no. A revenue entry No.1342 was made to that effect in record of rights. But thereafter immediately on 03.02.1977, the father of the petitioner had purchased the land survey no. 400/ paki 1 in same village of Varsada by way of “Banakhat” and thereafter father of the petitioner was in possession of the said land and was cultivating the said land for the survival of his family. The condition of the ‘Bankhat’ was that the father of the petitioner had to deposit the entire amount of loan which was taken by earlier landlord (Parmar Malabhai Pithabhai) from the Gujarat State Co.Op. Bank, Amreli on the said land. The loan amount was considered as purchase price of the land. Thereafter, father of the petitioner had deposited the entire loan amount of the Bank but during that period father of the petitioner was expired and petitioner was minor and his mother was illiterate lady, therefore petitioner could not obtained and got the Registered sale deed of the said land in their favour. But thereafter only on 15.05.1996, the mother of the petitioner, Maniben Kalabhai, had obtained registered sale deed in her favour and entry No. 2291 was made to that effect in the record of rights and hence the petitioner was a joint account holder in land of Account No.1188, R.S.No.400 paiki 1 for Hectare 0-64-22 situated in village Varasada, Dist. & Taluka : Amreli. Thereafter the petitioner had purchased one another land admeasuring Hectare 0-80-94 out of R.S.No.368 Paiki 17 Hectare 1-61-88 of Account No.144 from one Parmar Malabhai Pithabhai vide registered sale deed No.433/2016 and since then he was carrying agriculture activity in it and after purchasing the part land of Sr. No.368, the petitioner had sold the land Sr.No. 400 to one Chamubhai Hathibhai on 31.05.2016. That the entry regarding the purchase and sale deed was made in revenue record vide entry No.2315 & 4581 on 25.05.2016 & 31.05.2016 respectively. 7. The document at Annexure-C is the report of the Mamlatdar, Amreli to Mamlatdar, Lathi dated 22.08.2016, wherein it is recorded that entry No.2201 dated 27.05.1996 was belonging to the sale of survey No.400 by the original owner Dhiru Premji to Maniben Kalabhai, mother of the petitioner and entry No.3791 dated 02.01.2012 was an entry pertaining to sale of survey No.400 paki 1 between Maniben Kalabhai and Himatbhai Kalabhai (petitioner) and Niruben Kalabhai (sister of the petitioner). Therefore, on the basis of such report, the mother of the petitioner accepted as an agriculturist way back in the year 1996 owards. 8. From the record, it appears that this aspect was brought to the notice of all three authorities however, the authorities have brushed aside such contention merely on the ground that it was for the petitioner to place on record the evidence of such nature. 9. As is observed in the preceeding paras, the petitioner had claimed to be an agriculturist by birth, where the grand father and the father of the petitioner were holding land bearing survey No.269 and vide promulgation entry No.75 of old Vadodara State, ancestors of the petitioner were agriculturist. Now, it is a matter of record which the authorities could not have brushed aside such a contention as the record would be that of Government itself and if the verification could have undertaken by the authorities itself with survey numbers and entry number alongwith Khata numbers of the ancestors of the petitioner which was available with the State Government. It is also pertinent to refer that once the ancestral land bearing survey No.269 was sold in the year 1976, immediately in the year 1977, another agricultural land was purchased by the father, which after his death was transferred in the name of the petitioner and therefore, in the opinion of the Court, family had remained connected with the agricultural activity. Therefore, the authorities have erroneously come to the conclusion that the status of the petitioner as an agriculturist was extinguished in view of the record not showing any agricultural land in the name of the petitioner for his family members. In doing so, the authorities have completely disregarded the contention by adopting technical view that the Banakhat with regards to another agricultural land executed in the year 1977 would not give the status of an agriculturist to the petitioner. At the same time, the fact that the mother of the petitioner was holding agricultural land though under Banakhat, cannot be interpreted and denuded the petitioner of his status as agriculturist. 10. This Court in a reported decision in case of Mansukhbhai Haridas Kanabar and others v/s. State of Gujarat and others, reported in 2022(2) GLR 1133 has held as under:- “16. However, the status of agriculturist depends upon the holding of an agricultural land. 10. This Court in a reported decision in case of Mansukhbhai Haridas Kanabar and others v/s. State of Gujarat and others, reported in 2022(2) GLR 1133 has held as under:- “16. However, the status of agriculturist depends upon the holding of an agricultural land. It is not the matter of dispute that the father of the petitioners was holding agricultural land since 1962. In the year 1968, there appears to be sale of said agricultural land of Villaeg:Vitthalpur, Tal:Talal, Dist:Junagadh. It is equally established as a matter of fact that after the sale in 1968, there is a breach of an agricultural land by the father of the petitioners on 10.07.1970 vide registered sale-deed of Survey No.164 of Village:Javitri, Tal:Talala. 17. The Court has taken into consideration the registered saledeed. The mutation entry being Mutation Entry No.1179 in Village Form No.6 is produced along with the record, which refers to the registered sale-deed no.281 dated 10.07.1970 and the same is certified on 04.12.1998. This would indicate that the status of father of the petitioners as agriculturist was accepted when the Entry No.1179 of a document dated 10.07.1970 was certified. Thereafter, on 04.12.1998, Entry No.1180 is by way of succession when the father of the petitioner expired on 31.05.1984. This was also certified. Merely because there is a delay in certifying the mutation entry on the basis of registered sale-deed of 10.07.1970 and heirship entry on the basis of demise of father of the petitioners on 31.05.1984 will not denude the petitioner of their status as an agriculturist. Moreover, consistently, vide revenue entries made in the Year 1999, 2002, 2005 and 2007, the petitioners have one way or another dealt with agricultural land, and therefore, conclusion of the Collector with regards to violation of Section 75(G) of the Saurashtra Gharkhed, Tenancy Settlement and Agricultural Lands Ordinance, 1949 on account of petitioners’ being non-agriculturist cannot be upheld. 18. Moreover, consistently, vide revenue entries made in the Year 1999, 2002, 2005 and 2007, the petitioners have one way or another dealt with agricultural land, and therefore, conclusion of the Collector with regards to violation of Section 75(G) of the Saurashtra Gharkhed, Tenancy Settlement and Agricultural Lands Ordinance, 1949 on account of petitioners’ being non-agriculturist cannot be upheld. 18. The aforesaid chronology indicate that though by the impugned order, the Collector appears to have set aside the revenue entry of the year 1998, but, in fact, is questioned the status of the agriculturist, which the father of the petitioners was holding in the year 1962 and after disposing of an agricultural land in the year 1968 and having purchased agricultural land in the year 1970 has in fact the decision of the revenue authority which was taken way back in the year 1968.” 11. In the order of this Court in case of Bavaji Kanpari Balpari (Supra), in para-5.2, this Court has held as under:- “5.2 In view of the above total facts and the providence in the aforementioned resolutions cumulatively operating, the reasoning adopted by the Collector and the revisional authority in denying the petitioner the Certificate of Agriculturist on the ground that the land was purchased after 35 days and another land was purchased after 15 days and that during such period the petitioner was liable to be treated as non-agriculturist, is too wooden, pedantic and antithetic to the purpose, to be accepted. It defies the spirit of policy of the treating person agriculturist. The reasoning is a virtual negation of what is contemplated in the aforementioned Resolution. 12. In view of the aforesaid, the petition is allowed. The impugned order dated 27.03.2018 passed by the Special Secretary in Revision Application No.40 of 2017 is quashed and set aside. The petitioner is hereby held to be an agriculturist.