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2024 DIGILAW 1062 (GUJ)

Shantibhai Ranchodbhai Patel v. State of Gujarat

2024-04-30

NIRZAR S.DESAI

body2024
JUDGMENT : NIRZAR S. DESAI, J. 1. By way of this petition, petitioner has prayed for the following reliefs: “(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the impugned orders dated 18.01.2022 and 10.02.2022 passed by the learned Deputy Collector (At Annexure-F COLLY) in application nos. 40305220000150 and 403052200001016 respectively and further be pleased to direct respondent no. 2 to issue a certificate of agriculturist in favour of petitioner. (B) During the pendency and Final Disposal of the present petition YOUR LORDSHIPS may be pleased to stay operation, implementation and execution of the impugned orders dated 18.01.2022 and 10.02.2022 passed by the learned Deputy Collector (At Annexure-F COLLY) in application nos. 40305220000150 and 403052200001016 respectively and further be pleased to direct respondent no. 2 to issue a certificate of agriculturist in favur of petitioner. (C) Pass any such other and/or further orders that may be thought just and proper, in the facts and circumstances of the present case.” 2. Heard learned advocate Mr. Nishit P. Gandhi for the petitioner and learned AGP Mr. Nikunj Kanara for the respondent-State. 3. With consent of parties matter was taken up for final hearing. Hence, Rule. Learned AGP Mr. Nikunj Kanara waives service of notice of rule on behalf of the respondent-State. 4. Facts as stated in the petition and as narrated by learned advocate Mr. Gandhi at the time of hearing of the matter are stated as under: 4.1 The grand father of the petitioner namely Joitaram Gokaldas patel was the owner of number of parcel of land some of which are bearing survey Nos. 555, 732, 751 paiki, 846, 1146, 1147, 2565 and several other lands for which a revenue entry No. 245 of promulgation was mutated. 4.2 Thereafter on 07.04.1962 said Joitaram Gokaldas Patel expired and as per the then prevailing custom, name of his eldest son i.e. Ishwarbhai Joitaram Patel was mutated vide entry No. 2333 dated 27.05.19962. The said Ishwarbhai Joitaram Patel happens to be the uncle of the present petitioner. 4.2 Thereafter on 07.04.1962 said Joitaram Gokaldas Patel expired and as per the then prevailing custom, name of his eldest son i.e. Ishwarbhai Joitaram Patel was mutated vide entry No. 2333 dated 27.05.19962. The said Ishwarbhai Joitaram Patel happens to be the uncle of the present petitioner. 4.3 According to the petitioner, the aforesaid properties were possessed and cultivated by all the heirs of deceased Jotaram Gokaldas Patel and the same were joint family properties and the name of Ishwarbhai Joitaram was mutated in the revenue record only as per the then prevailing customs and for the sake of convenience of the family and it has nothing to do with the rights of the family members over the property as the lands were being jointly possessed and cultivated by all the legal heirs of Joitaram Gokaldas Patel. 4.4 Thereafter a family arrangement among the family members took place and revenue entry No. 5160 was mutated on 23.12.1982 recording the aforesaid family arrangement and as per the aforesaid family arrangement, revenue survey No. 732 paiki 2, 846 paiki 2, 1147 paiki 2, 779/2 and 756 paiki came to share of father of the present petitioner, namely Ranchodbhai Joitaram. Thereafter, vide entry No. 5449 dated 08.09.1987 name of the petitioner was mutated qua land bearing survey No. 846 paiki 2 as the said land was given to the petitioner at the relevant point of time by his father Ranchodbhai Joitaram, and thereafter, vide entry No. 8484 dated 18.12.2009 name of all legal heirs of Patel Ranchodbhai Joitaram were mutated including the petitioner in the remaining land. 4.5 The name of the present petitioner and all other family members are shown in the revenue record i.e. village form No. 7/12 as well as 8A also. 4.6 According to the petitioner, the petitioner is an agriculturist and he is holding agricultural land on his own account, and therefore, as he was in need of a certificate of agriculturist, the petitioner preferred an application for getting the certificate as an agriculturist. However, upon rejection of the said application, the petitioner preferred another application for getting the certificate as an agriculturist. However, upon rejection of the said application, the petitioner preferred another application for getting the certificate as an agriculturist. Those two applications were rejected vide two separate orders dated18.01.2022 and 10.02.2022, and therefore, being aggrieved and feeling dissatisfied with the aforesaid rejection of two consecutive applications made by the petitioner for getting a certificate of agriculturist, the petitioner has preferred this petition with the prayers which are incorporated in foregoing paragraphs. 5. Heard learned advocate Mr. Nishit Gandhi for the petitioner. Learned advocate Mr. Gandhi submitted that the land in question is an ancestral land held by the petitioner’s forefather namely grand father of the petitioner Joitaram Gokaldas Patel and thereafter as per the then prevailing customs and understanding amongst the family, upon death of grand father of the petitioner in the year 1962, the name of uncle of the petitioner, namely Ishwarbhai Joitaram Patel was mutated in the revenue record. Thereafter, in the year 1982 upon family arrangement as out of total land some portion of land came to the share of father of the petitioner Ranchodbhai Joitaram, entry No. 5160 was mutated and thereafter in the year 1987, one portion of land was given to the petitioner and the name of the petitioner was mutated in respect of land bearing survey No. 846 paiki for which revenue entry No. 5449 was mutated and it is only in the year 2009 that all the family members of the petitioner applied for mutation of their name and accordingly theirs names were mutated in the revenue record, vide entry No. 8484 by way of succession. It was therefore submitted by learned advocate Mr. Gandhi that denial of a certificate of agriculturist by the respondents despite the fact that the petitioners have become agriculturists by way of succession is illegal. 6. Learned advocate Mr. Gandhi submitted that the only reason given by the authority while passing two separate impugned orders dated 18.01.2022 and 10.01.2022 are that the land originally belonged to Patel Joitaram Gokaldas, and thereafter, in respect of land in question, the name of Patel Ishwarbhai Joitaram was mutated in the revenue record. 6. Learned advocate Mr. Gandhi submitted that the only reason given by the authority while passing two separate impugned orders dated 18.01.2022 and 10.01.2022 are that the land originally belonged to Patel Joitaram Gokaldas, and thereafter, in respect of land in question, the name of Patel Ishwarbhai Joitaram was mutated in the revenue record. At the relevant point of time before entry No. 5160 was mutated, the name of father of the petitioner namely Patel Ranchodbhai Joitaram, there is no reference about any land being held by Patel Ranchodbhai Joitaram, and therefore, before entry No. 5160 Patel Ranchodbhai Joitaram was not an agriculturist as there is no record available indicating that he was an agriculturist, and therefore, on that ground the petitioner’s applications for getting a certificate as an agriculturist were rejected by two separate orders as two separate applications were preferred. Those two orders dated 18.01.2022 and 10.02.2022 are according to learned advocate Mr. Gandhi are illegal and erroneous as the authorities have failed to appreciate the fact that as per the family arrangement, name of the eldest son of Patel Joitaram Gokaldas was mutated in the revenue record. Learned advocate Mr. Gandhi relied upon a G.R. of the Government 01.12.2003 and by relying upon the clause No. 9(D), he submitted that even the aforesaid G.R. provides that when in an ancestral land, name of the eldest son is mutated in the revenue record, the name of other siblings are required to be mutated by following due procedure of law and for such purpose, such application cannot be rejected on the ground that the younger brother’s name was not there in the revenue record. According to learned advocate Mr. Gandhi though the aforesaid G.R. is applicable to all kind of land that is new tenure land as well as old tenure land. Considering the fact that the land of the present petitioner is old tenure land, the aforesaid G.R. would applicable in the case of present applicant as well. 7. Thereafter, learned advocate Mr. Gandhi relied upon a decision of the Coordinate Bench of this Court in case of Patel Bhagwanbhai Gangaram and others v. State of Gujarat decided on 24.08.2021 in Special Civil Application No. 12651 of 2015. Learned advocate Mr. 7. Thereafter, learned advocate Mr. Gandhi relied upon a decision of the Coordinate Bench of this Court in case of Patel Bhagwanbhai Gangaram and others v. State of Gujarat decided on 24.08.2021 in Special Civil Application No. 12651 of 2015. Learned advocate Mr. Gandhi submitted that the coordinate bench of this Court had an occasion to consider the aforesaid G.R. dated 01.12.2003 while deciding Special Civil Application No. 12651 of 2015 which was decided vide judgment dated 04.08.2021 and the coordinate bench of this Court has considered the aforesaid G.R. and this Court by considering the aforesaid G.R. directed the authority to mutate the name of the petitioners of that petition. 8. Learned advocate Mr. Gandhi thereafter relied upon decision of this Court dated 08.11.2022 in case of Himatbhai Kalabhai Sarikhada vs. State of Gujarat in Special Civil Application No. 18118 of 2019 and by relying upon the aforesaid decision, he submitted that it is held by this Court when the father’s status as an agriculturist is not questioned and son becomes an agriculturist by way of succession, the status of son as an agriculturist cannot be questioned. By relying upon the aforesaid decision, learned advocate Mr. Gandhi submitted that in view of the decisions as well as considering the G.R. 01.12.2003, the authorities were not justified rejecting the petitioner’s application for issuance of certificate as an agriculturist. He, therefore, prays for quashing and setting aside the impugned orders dated 08.01.2022 and 10.02.2022 impugned in this petition. 9. Learned AGP Mr. Nikunj Kanara has vehemently opposed this petition and submitted that the order passed by the authorities is absolutely legal and proper when the petitioner’s status as an agriculturist is questioned. It is always open for the petitioner to submit the relevant document and proof that he is an agriculturist. He further submitted that the authorities has taken overall view of the several factors as the authority found that there is no record available about the father of the petitioner being an agriculturist. The authority was justified in denying and rejecting the applications of the petitioner for issuance of certificate as an agriculturist. He therefore, prayed for dismissal of the petition. 10. Learned AGP Mr. The authority was justified in denying and rejecting the applications of the petitioner for issuance of certificate as an agriculturist. He therefore, prayed for dismissal of the petition. 10. Learned AGP Mr. Kanara further pointed out that as far as the G.R. relied upon by learned advocate for the petitioner is concerned, as the land was new tenure land and therefore, the said G.R. would not help the petitioner to seek status as an agriculturist. He, therefore, prayed for dismissal of the petition. 11. I have heard learned advocates for the parties and perused the record. I find that the grand father of the petitioner was holding various parcels of land for which revenue entry No. 245 of promulgation was also mutated and certified. Thereafter, upon death of grand father of the petitioner i.e. Joitaram Gokaldas as per the customs name of his eldest son i.e. Ishwarbhai Joitaram Patel was mutated vide entry No. 2333 dated 27.05.1962. What is more important is that in the year 1982 by way of succession as well as by way of family arrangement entry No. 5160 dated 23.12.1982 was mutated in the revenue record by which certain lands came to the share of the father of the petitioner. From the above, I find that the lands which were running in the name of Ishwarbhai Joitaram were proportioned amongst the brothers. 11.1 The revenue entry No. 5160 itself makes it very clear that the lands which came to the share of the father of the petitioner were received by the petitioner by way of succession on account of family arrangement. Therefore, when vide entry No. 5160 name of the father of the petitioner i.e. Ranchodbhai Joitaram was mutated and the said has also attained finality, the lands which were originally belongs to the Joitaram Gokaldas and thereafter father of the petitioner, the petitioner became the owner of the said land by way of succession therefore the above entries makes it crystal clear that the father of the petitioner has equal status of agriculturist by way of succession. Further, considering the fact that entry No. 5160 has never been challenged by Ishwarbhai Joitaram. Upon death of grand father of the petitioner entry No. 2333 was mutated by which as per the prevailing custom only the name of eldest son i.e. Ishwarbhai Joitaram Pate was mutated. Further, considering the fact that entry No. 5160 has never been challenged by Ishwarbhai Joitaram. Upon death of grand father of the petitioner entry No. 2333 was mutated by which as per the prevailing custom only the name of eldest son i.e. Ishwarbhai Joitaram Pate was mutated. However, as per the family arrangement, names of the other heirs also came to be mutated. Hence, it becomes crystal clear that the land originally belonged to the grand father of the petitioner was given to the father of the petitioner by way of succession. Hence, the status of the father of the petitioner as an agriculturist is not in doubt. 11.2 Now considering the present petition from another angle i.e. the validity of the impugned orders is concerned, I have considered the fact that while rejecting the application for issuance of certificate as an agriculturist to the petitioner, the authorities have considered the fact that prior to entry No. 5160, the father of the petitioner Ranchodbhai Joitaram was not holding agricultural land and hence he cannot be said to be an agriculturist. 11.3 As far as the aforesaid aspect is concerned, the G.R. dated 01.12.2003, more particularly clause-9(D) takes care of the said fact. It is the specific case of the petitioner that based upon the family arrangement or by way of custom prevailing at the time when the name of eldest son i.e. Ishwarbhai Joitaram was mutated in the revenue record by way of entry No. 2333, if thereafter some family arrangement by way of customary arrangement takes place and entries are mutated in view of the said family arrangement, according to this Court, it is only the interested persons in the property who can challenge the said entry or question the said entry. It is an undisputed fact that from the year 1962 till 1982 and thereafter the revenue entries have never been challenged by any of the legal heirs of deceased Joitaram Gokaldas Patel. Hence, the government cannot question the family arrangement between the parties. It was a mutual understanding between the parties and therefore entry No. 2333 was mutated in the year 1962 by which name of the eldest son of the grand father of the petitioner was mutated and since the lands in question are private lands as the division took place between the family members, arrangement entries were mutated in the revenue record. Hence the government ought not to have questioned the aforesaid and that basis ought not to have denied the certificate of an agriculturist to the petitioner. 11.4 As far as the applicability of G.R. dated 01.12.2003, more particularly, clause-9(D) is concerned, even if the submissions of learned AGP Mr. Kanara is believed that the same would apply to the new tenure land in that case considering the fact that the restrictions in respect of new tenure land are sustainable as compared to old tenure land and if some family arrangement is arrived at between the parties the said clause is applicable as per the said G.R. It is also pertinent to note that the said G.R. is also applicable to the old tenure land also for the reason that mutation of revenue entry in respect of family members had taken place by way of succession, it has nothing to do with the tenure of the land as in that case no prior permission is required for mutating the name by way of succession and restriction of new tenure land are applicable only upon transfer and the same would be subject to premium. In the instant case considering the fact that the entries are mutated by way of succession, there is no question of transfer as well as premium and therefore the G.R. is applicable to the facts of the present case. 12. As far as decision relied upon by learned advocate Mr. Gandhi in case of Himatbhai Kalabhai Sarikhada (Supra) is concerned, on perusal of the aforesaid judgment, I found that the coordinate bench of this Court in paragraph No. 9 and 10 has observed as under: “(9) As is observed in the proceeding 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. 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 vs. State of Gujarat and Others, 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 Village: 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 sale-deed. 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. 17. The Court has taken into consideration the registered sale-deed. 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. 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.” 13. In view of the observations made by the coordinate bench, more particularly considering the fact that the status of the father as an agriculturist is not questioned by authorities, the son’s status as an agriculturist cannot be questioned is the ratio of the aforesaid judgment and therefore same is also categorically applicable in the facts of the present case. 14. In view of the above, I find no logic put forth by the authorities in rejecting the petitioner’s application for grant of certificate as an agriculturist. The authorities have committed an error by overlooking entry No. 5160 which clearly indicates the family arrangement between the parties. 14. In view of the above, I find no logic put forth by the authorities in rejecting the petitioner’s application for grant of certificate as an agriculturist. The authorities have committed an error by overlooking entry No. 5160 which clearly indicates the family arrangement between the parties. Further the said entry was never questioned by any of the family members and when the aforesaid revenue entry has remained unchallenged till date, the reason for rejection of the petitioner’s application only on the ground of entry No. 5160 is ill founded and hence the authorities have committed an error in rejecting the applications of the petitioner for grant of issuance of certificate as an agriculturist. 15. In the result, the petition succeeds and is allowed. The impugned orders dated 18.01.2022 and 10.02.2022 passed by the learned Deputy Collector in application nos. 40305220000150 and 403052200001016 respectively are hereby quashed and set aside. The authorities are directed to reconsider the applications of the petitioners. The matter is remand back to the authority for considering the applications of the petitioners afresh and to pass a reasoned order after affording an opportunity of hearing to the petitioners expeditiously, within a period of 3 months from the date of receipt of this order. 16. With the above observations and directions, petition is allowed. Rule is made absolute. No order as to costs.