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2024 DIGILAW 2060 (GUJ)

Tusharbhai Chandubhai Patel v. State Of Gujarat

2024-11-22

NIKHIL S.KARIEL

body2024
JUDGMENT : NIKHIL S. KARIEL, J. 1. Heard learned advocate Mr. Hriday Buch for learned advocate Mr. Yash Nanavaty for the petitioner and learned AGP Mr. J.K. Shah for the respondent – State. 2. By way of this petition, the petitioner inter alia challenges orders dated 27.06.2023 and 28.06.2023, whereby the application of the petitioner for conversion of the land from restricted to unrestricted tenure for the purpose of non-agricultural use and the application for grant of NA permission had been consigned to file, more particularly on the ground that an order passed by the Mamlatdar and ALT, Vadodara, in Tenancy Case No.1 of 2023 under Section 84C of the Tenancy Act was being subjected to review. 3. At the outset, it requires to be noted that pursuant to certain later developments, which this Court, will refer to herein after, while the matter could have been decided on a very short point, yet, since a legal issue is being raised, the Court is required to delve deeper into the factual and legal aspect involved. 4. To clarify as noted hereinabove, the application for conversion from restricted to unrestricted tenure for the purpose of non-agricultural use and the NA application itself were both consigned to file on the ground of an administrative review / Suo Motu revision (both the terms are being used since learned advocates for the rival sides are not ad idem as to the nature of proceedings and to this Court since the same would not any bearing on the principal issue, both the terms are being used) against the order of Mamlatdar was pending. The said review application came to be decided by the Deputy Collector, Vadodara, vide order dated 11.06.2024 in favour of the present petitioner. As noted hereinabove, in normal circumstances, the administrative review / Suo Motu revision having concluded in favour of the petitioner would automatically result in the orders impugned in the petition being interfered with by this Court with a further direction to the authorities concerned to consider the application preferred by the present petitioner afresh. 5. Learned advocate for the petitioner has in this regards, submitted that since in the interregnum, the assessment rate of the land in question has changed, therefore, asking the petitioner to file a fresh application, would result in the petitioner incurring unnecessary burden on account of no fault of his. 5. Learned advocate for the petitioner has in this regards, submitted that since in the interregnum, the assessment rate of the land in question has changed, therefore, asking the petitioner to file a fresh application, would result in the petitioner incurring unnecessary burden on account of no fault of his. It has been submitted that upon the impugned order being interfered with, the respondents may be directed to decide the original application afresh. 6. Such a contention has been vehemently objected to by the learned AGP for the State submitting that till the review against the order of the Mamlatdar was pending, the authorities being justified in not considering the application for conversion and the application for NA permission and upon the order being passed in favour of the petitioner in administrative review / Suo Motu revision, as a natural consequence, the petitioner would be required to file a fresh application and whereas the submission that the original application preferred by the petitioner be considered, may not be the correct position. The controversy having been stated hereinabove, now the Court will examine the facts of the case. 7. It appears that the land in question was of the ownership of one Nilkantheshwar Mahadev Trust and whereas one Shri Fatehsang Dabhai Vaghela was the tenant of the land in question. The said Shri Fatehsang Vaghela executed an agreement in favour of Shri Chhatrasang Jinabhai Rathod, Shri Mansang Jinabhai Rathod, Shri Musabhai Mansingbhai Rathod on 20.09.1963 and whereas the said persons had commenced agricultural activities on the land in question. The said tenant had passed away in the year 1965, whereas on the other hand, the persons named had continued agricultural activities over the land in question. It appears that in the interregnum, the proceedings under Section 32G of the Tenancy Act came to be instituted and the names of Shri Chhatrasang Rathod and others were declared as tenants of the land in question and whereas purchase price had been fixed and upon the same being paid, certificate under Section 32(M) of the Tenancy Act came to be issued in favour of the said persons on 04.01.1972. It appears that vide order dated 07.07.1972 upon an application made by the owners, the tenure of the land came to be changed from restricted tenure to unrestricted tenure for agricultural purpose only. It appears that vide order dated 07.07.1972 upon an application made by the owners, the tenure of the land came to be changed from restricted tenure to unrestricted tenure for agricultural purpose only. It appears that thereafter, the said Chhatrasing had sold the land to three persons namely Shri Ambalal Damodardas Shah, Shri Pramodray Ambalal Shah and Shri Prakashchandra Ambalal Shah vide registered sale deed dated 18.08.1975, and the same had been reflected in revenue record vide mutation entry No.2746 dated 13.10.1975. It appears that the said purchasers of the land had continued agricultural activities for almost 36 years without any hindrance and whereas vide registered sale deed dated 26.08.2011, the land came to be sold in favour of the present petitioner and whereas the petitioner continues to be owner and occupier of the land in question from that time. 8. It appears that upon the petitioner approaching the Revenue Authorities for mutation of his name in the revenue record, the same was not undertaken on the ground that there were proceedings under Section 84C of the Act pending with regard to land in question instituted by the legal heirs of the original tenant Shri Fatehsang Vaghela. While it appears that the petitioner had applied for being joined as party respondent in the said proceedings, vide an order dated 30.10.2012, the Mamlatdar & ALT, Vadodara, had dropped the proceedings holding that there was no breach of any of the provision of the Tenancy Act. It appears that thereafter mutation entry No.10615 came to be posted reflecting the purchase of the property by the petitioner. The said entry is still continuing. 9. It appears that the legal heirs of the original tenant Shri Fatehsang Vaghela had challenged the order dated 30.10.2012 by the Mamlatdar & ALT, Vadodara, before the Deputy Collector, Vadodara, by filing Tenancy Appeal No.41 of 2012 and the appeal came to be allowed and the case was remanded back to the Mamlatdar & ALT, Vadodara. 10. In the remand proceedings, the Mamlatdar had again reiterated that there was no breach of any of the provisions of the Tenancy Act and since the petitioner was an agriculturist by birth, the proceedings under Section 84C of the Tenancy Act came to be dropped vide an order dated 16.07.2018. 11. 10. In the remand proceedings, the Mamlatdar had again reiterated that there was no breach of any of the provisions of the Tenancy Act and since the petitioner was an agriculturist by birth, the proceedings under Section 84C of the Tenancy Act came to be dropped vide an order dated 16.07.2018. 11. It appears that legal heirs of above named Shri Fatehsang Vaghela had challenged the order before the Deputy Collector and whereas the said appeal had been allowed by the Deputy Collector vide order dated 25.01.2021 remanding the case back to the Mamlatdar and ALT, Vadodara. 12. In the remand proceedings, the Mamlatdar and ALT, Vadodara, directed the petitioner to pay the premium and regularize the earlier breach, more particularly since it appeared that the previous sale was in favour of a non-agriculturist i.e. the sale in the year 1975. It appears that in view of newly introduced provisions of Section 63AB, the petitioner had paid amount at the rate of Rs.50,99,150/- on 10.06.2021 resulting in Remand Case No.4 of 2021 being disposed of vide an order dated 13.08.2021. 13. It appears that the said order came to be challenged by some of the family members of Shri Fatehsang Vaghela i.e. the original tenant by filing Tenancy Appeal No.8 of 2022 and whereas vide order dated 05.08.2022, the Deputy Collector had rejected the said Appeal. The said order passed by the Deputy Collector was challenged before the Revenue Tribunal and whereas vide order dated 20.04.2023, the said Revision Application No.19 of 2023 came to be withdrawn. 14. It would appear that even after all the above referred proceedings, the legal heirs of Shri Fatehsang Vaghela, had thereafter, complained to the Mamlatdar and ALT as regards the sale of the year 1975 being made to nonagriculturist without verifying the record in the earlier proceedings. It would appear that the application / complaint had been entertained and Tenancy Case No.1 of 2023 had been registered by the Mamlatdar & ALT, Vadodara. It appears that the said proceedings had been later dropped by the Mamlatdar & ALT, vide order dated 20.02.2023, more particularly taking into consideration that the petitioner had paid the requisite premium for regularization as referred to hereinabove. 15. It appears that the order passed by the Mamlatdar had been subjected to administrative review / Suo Motu revision before the Deputy Collector. 15. It appears that the order passed by the Mamlatdar had been subjected to administrative review / Suo Motu revision before the Deputy Collector. At this stage, it would be relevant to mention that after the order passed by the Mamlatdar dated 20.02.2023, the petitioner had preferred the above referred application namely the application for converting the land from restricted tenure to unrestricted tenure and for payment of premium for the said purpose and furthermore, an application of NA had also been preferred. Both the applications had been consigned to file by the Collector, Vadodara, vide order impugned dated 27.06.2023 and 28.06.2023 on the ground that the review i.e. the review by the Deputy Collector against the order dated 20.04.2023 was pending. 16. As stated hereinabove, the said review had been finally decided by the Deputy Collector, Vadodara, vide order dated 11.06.2024, more particularly the review application had been directed to be struck off from the register as it was barred by principle of res judicata. 17. At this stage, to complete the record, it requires to be mentioned that since the petitioner had received a show cause notice dated 06.03.2024 with regard to the review under Section 76A of the Gujarat Tenancy and Agriculture Land Act, by the Deputy Collector, more particularly for review of order dated 20.02.2023, the same had been challenged by the petitioner before this Court by preferring Special Civil Application No.8100 of 2024. 18. It would appear that the said writ petition had not been entertained by this Court inasmuch as learned Coordinate Bench of this Court vide order dated 09.05.2024 had inter alia directed the Deputy Collector (Land Reforms), Vadodara, to decide and conclude the proceedings initiated pursuant to show cause notice dated 06.03.2024 under Section 76(A) of the Gujarat Tenancy and Agriculture Land Act, 1947, latest by 15.06.2024, more particularly by passing a reasoned order. As noted hereinabove, the Review had been finally decided vide order dated 11.06.2024. 19. Learned advocate Mr. As noted hereinabove, the Review had been finally decided vide order dated 11.06.2024. 19. Learned advocate Mr. Buch for the petitioner would submit that upon the review decided in favour of the petitioner as a natural consequence, the NA applications preferred by the petitioner should have been considered with effect from the date of the application since the only objection against consideration of both the applications i.e. application for conversion from restricted to unrestricted tenure for the purpose of payment of premium for NA and for NA purpose were the pendency of the Review Application in question. 20. Learned advocate would further submit that as such, the respondent authorities, were not justified even in waiting for administrative review / Suo Motu revision to have concluded, since as such after the petitioner had paid the fees for regularization of the property under Section 73AB, whereby the Remand Case No.4 of 2021 had been concluded, thereafter, all the discrepancies with regard to sale of the year 1975 by the original owner i.e. Fatehsang Vaghela had concluded finally. After the said regularization order, even if the legal heirs of the said original owner had questioned the transaction of 1975 on the ground that one of purchasers was a nonagriculturist, the same would be nothing, but an exercise in futility. Learned advocate would submit that even otherwise, the legal heirs of the original seller did not have any right to question the transaction as regards sale by the original seller repeatedly and merely because the legal heirs of the original seller, were questioning the said transaction repeatedly, the NA application of the petitioner, who was purchaser of the property in question, ought not to have been consigned to file. Learned advocate would submit that it is under such circumstances that the petitioner is requesting this Court for a direction to the respondent authorities to consider the application for NA preferred by the present petitioner with effect from the date of the application and not from the date after the present order. 21. This petition is vehemently objected to by learned AGP Mr. Shah for respondent State. Learned AGP would submit that the petitioner is oversimplifying the entire issue. 21. This petition is vehemently objected to by learned AGP Mr. Shah for respondent State. Learned AGP would submit that the petitioner is oversimplifying the entire issue. Learned AGP would submit that the Collector was well justified in consigning the applications of the present petitioner for change of tenure for payment of premium and for NA permission, more particularly since the administrative review was pending consideration of the Deputy Collector. Learned AGP would submit that after the Review Application had been decided, in retrospect, it would be very easy for the petitioner to contend that the Collector ought not to have consigned the applications to file, yet when the matter was pending consideration, the outcome of the same would not have been known by anyone and whereas the Deputy Collector may have been well within his right to have interfered with the order of the Mamlatdar and have remanded the matter back to the Mamlatdar for consideration afresh. 22. Learned AGP would further submit that as such, the right of the petitioner to make an application for change of tenure as well as for NA permission would arise only after proceedings under Section 84C had attained finality and whereas the petitioner may not be heard to state that upon administrative review concluding, the application of the petitioner could be decided from the date of application and not from a future date. Learned AGP in this regard, would rely upon the decision of the Division Bench of this Court in case of State of Gujarat Vs. Jitendra Rambhai Patel reported in (2016) 1 GLR 866 , more particularly para 12 thereof, whereby the Division Bench had inter alia observed that until the proceedings under Section 84C of the Act are concluded, the title of property holder would not be stated to have attained finality. Jitendra Rambhai Patel reported in (2016) 1 GLR 866 , more particularly para 12 thereof, whereby the Division Bench had inter alia observed that until the proceedings under Section 84C of the Act are concluded, the title of property holder would not be stated to have attained finality. Learned AGP would submit that in the instant case, since administrative review / Suo Motu Revision had not concluded, the title of the petitioner could not have been stated to be complete and whereas under such circumstances, it is only after review / revision had attained finality that the petitioner would be entitled to submit an application for conversion of the tenure and for grant of NA permission and whereas under such circumstances, it is submitted by learned AGP that while the petition could be allowed by directing the Collector to decide the application for NA, but at the same time, the petitioner may be directed to file a fresh application post the date of the order of this Court. 23. Learned advocate Mr. Buch in rejoinder would draw the attention of this Court to the same para 12 of the decision of the Division Bench relied upon by the learned AGP and would submit that a closer perusal of the said para clearly reveals that the observations of the Division Bench are on the facts of the case and the Division Bench does not appear to be laying down any proposition of law in the said para. Thus, submitting learned advocate Mr. Buch would request this Court to allow the petition and direct the Collector to consider the application preferred by the present petitioner for grant of NA with effect from the date of the application. 24. Heard learned advocates for the respective parties and perused the documents on record. At the outset, it would be pertinent to mention that as far as the substantive issue is concerned i.e. whether the order in question could be sustained or not, it would appear that the parties are ad idem, more particularly after the order dated 11.06.2024 passed by the Deputy Collector, (Land Reforms), Vadodara, that the order dated 27.06.2023 and 28.06.2023 consigning the application for conversion and application for NA to file, losing there efficacy as the administrative review / Suo Motu Revision had attained finality. 25. 25. The only question, therefore, which requires consideration of this Court, being that upon the order dated 27.06.2023 being set aside, should the Collector be directed to consider the application of the petitioner with effect from the date of application or petitioner should be directed to file a fresh application to be considered by the Collector in accordance with law. 26. While it is the contention of the learned AGP Mr. Shah relying upon of judgment of the Division Bench of this Court in the case of Jitendra (Supra) that the Division Bench has laid down the law that until proceedings under Section 84C of the Tenancy Act are concluded, the title of the property would not be complete and unless one is found to be lawful owner of the property, he could not apply for permission under Section 65 of the Code. At this stage, before proceeding any further, it would be appropriate to refer to the decision in question, para 12 of decision in case of Jitendra Rambhai Patel (Supra), being relevant for the present purpose, is reproduced for benefit. “12. If the facts of the present case are further examined, until the proceedings under Sec. 84C of the Act are concluded, one can say that the title of the property or vesting of the land in question would not be complete. Unless one is found to be lawful owner or the occupier of the property, he cannot apply for permission under Sec. 65 of the Code. When the proceedings were initiated by the authority itself under Sec. 84C of the Act after the original petitioners purchased the property in bona fide and the outer-limit was put to stake, even if application was made under Sec. 65 of the Code, no useful purpose would have been served since he could not at the relevant point of time be said a lawful owner or occupier of the property as the proceedings under Sec. 84C of the Act were initiated. Such proceedings have been concluded in any case on 9-4-2010 before the Deputy Collector. Prior thereto, the application for extension is made on 16-12-2009. Having considered the same, the Collector ought not to have rejected the application on the ground that the outer time-limit is over, and therefore, the application for extension cannot be granted. Such proceedings have been concluded in any case on 9-4-2010 before the Deputy Collector. Prior thereto, the application for extension is made on 16-12-2009. Having considered the same, the Collector ought not to have rejected the application on the ground that the outer time-limit is over, and therefore, the application for extension cannot be granted. In the decision of this Court in the case of Jivrambhai Vastabhai Desai, [ 2010 (3) GLR 2094 ], the original owner of the land had applied for extension, which are not the fact situation coupled with the aspect of initiation of proceedings under Sec. 84C of the Act after land was sold in the present case.” In this connection, while it prima facie appears to this Court that the observations of the Division Bench in above para, does not appear to be laying down any law, at the same time assuming that the observation is a proposition of law, then also to this Court, it would appear that the said proposition is not an absolute proposition and whereas the same would very based upon the facts of the case. 27. To elaborate, in the instant case, it appears that the only discrepancy as regards the property in question, from the perspective of the authorities was the fact that one of the predecessor in title of the present petitioner i.e one of the three persons, who had purchased the property from the original owner in the year 1975 was not an agriculturist. It would appear that the issue of the purchaser not being an agriculturist does not appear to have been raised at the instance of the State, rather it appears to be raised at the instance of the legal heirs of the seller of the property. It also appears that the legal heirs of the original owner of the property had raised the issue probably near about the time, when the petitioner had purchased the property i.e. in the year 2011 and whereas after multiple rounds, it would appear that the petitioner, who was not part of the first transaction, had to bear brunt of the irregularity of the first transaction. The same being clear from the fact that the petitioner in Remand Case No.4 of 2021 had though being an agriculturist himself, had for regularization of the transaction of the year 1975, under newly introduced Section 63AB had paid fees to the extent of Rs.50,99,150/- on 10.06.2021 and whereas it appears that based upon the said regularization application being accepted, the Remand Case No.4 of 2021 had been disposed of by the Mamlatdar & ALT, Vadodara, vide order dated 13.08.2021. 28. It would appear that though the said order had been challenged by the legal heirs of the original seller of the property and even the administrative review / Suo Motu Revision, was also a consequence arising from the same very order, but to this Court, it would appear that primary aspect from the perspective of the contention of the State being that the irregularity in the transaction had been regularized upon the petitioner paying the amount of fine and the State having accepted the same. The State had accepted the amount of fine under the newly introduced Section and therefore, any such irregularity in sale of the land by agriculturist to nonagriculturist would be regularized. Thereafter, even if the legal heirs of the original seller, would have questioned the original transaction of the year 1975 or the later regularization, the same could not have created an embargo on the State from considering an applications preferred by the petitioner for change of tenure and for grant of NA permission. 29. Thus, it would appear to this Court that even if the proceedings of administrative review / Suo Motu revision was pending at the stage of Deputy Collector, yet the State was not required to have waited for outcome thereof, more particularly since from the perspective of the State, the irregularities in transaction had been regularized. On the other hand, accepting the proposition of the State Government, would to this Court, give a handy tool to unscrupulous litigant, who would use the said proposition for making application under Section 84C and later claiming that till an application under Section 84C is decided by the concerned Revenue Authorities, no permission for change of tenure or no permission for grant of NA could be considered by the appropriate authorities. The consequences of approving such a proposition by the State would be nothing less than disastrous. The consequences of approving such a proposition by the State would be nothing less than disastrous. Thus, to this Court, submissions of the learned AGP is not required to be countenanced. 30. In so far as the submissions by the learned AGP that the petitioner had by accepting to appear in the administrative review / Suo Motu Revision without questioning the validity thereof, cannot now turn back and say that the proceedings were not valid, in the considered opinion of this Court, the same would not and ought not have effected the application, more particularly as noted from the perspective of the State Government. Since the administrative review / Suo Motu revision was pending with regard to the land transaction with regard to a land, which had been purchased by the petitioner, as a reasonable person the petitioner was required to contest the said litigation and whereas participating or contesting the said litigation could not be taken as a stand against the petitioner to state that he had waived his rights to claim that the administrative review / Suo Motu revision itself was not maintainable. In any case, it would appear that the Deputy Collector, while disposing of the administrative review / Suo Motu revision, had confirmed the order passed by the Mamlatdar & ALT, Vadodara, on the ground that the proceedings itself were by barred by res judicata. To this Court, the legal heirs of the first seller of the land repeatedly applying to the Revenue Authorities questioning a transaction, which had been entered into by their late father could not be a reason for application for the petitioner not to be considered by the Collector. As such, there is enough law laid down by this Court, clarifying the scope and ambit of an application under Section 65 of the Land Revenue Code for grant of NA permission and whereas when the petitioner in the instant case, was purchaser of the land and when he had paid fees under Section 65AB for regularization of the irregularities in transaction, thereafter, the State Authorities were under an obligation to have considered the application for conversion and for NA without any reference to the parallel proceedings being continued by the legal heirs of the seller of the land. To this Court, it would appear that while the impugned orders dated 27.06.2023 and 28.06.2023 passed by the Collector, Vadodara, consigning the applications of the petitioner for change of tenure from restricted to unrestricted tenure for the purpose of paying premium for NA use and for grant of NA permission, are required to be set aside and, in the facts of the case the Collector is required to be directed to consider the applications preferred by the present petitioner with effect from the date, they had submitted the same and not as a fresh application. 31. Having regard to the discussions, observations and conclusion arrived at, the following directions are passed: (a) The order dated 27.06.2023 consigning the application preferred by the petitioner under Section 43 of the Gujarat Tenancy and Agriculture Land Act for change of tenure and for payment of premium is quashed and set aside. (b) The order dated 28.06.2023, whereby the application for payment of premium for purpose of NA, has been consigned to file is also quashed and set aside. (c) The Collector, Vadodara, is directed to consider the above two applications with effect from the date the same had been submitted, within a period of 90 days from the date of receipt of this order. With the above observations and directions, present petition stands disposed of as allowed. In view of the disposal of main writ petition, Civil Application No.1 of 2024 stands disposed of.