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2024 DIGILAW 585 (GUJ)

Sipai Gedalmiya Alladin v. State Of Gujarat

2024-03-19

NIRZAR S.DESAI

body2024
JUDGMENT : 1. By way of this petition, the petitioners are challenging the legality and validity of the order dated 28.3.2017 passed by the learned Special Secretary, Revenue Department (Appeals) in Revision Application No.HKP/MSN/54/2016. 2. With the consent of the parties, the matter is taken up for final disposal today itself. Hence, Rule. Ms. Nirali Sarda, learned Assistant Government Pleader waives service of rule on behalf of respondent Nos.1 to 4 and learned advocate Mr. Jay R. Shah waives service of rule on behalf of respondent Nos.5.1 to 5.3. 3. It is the case of the petitioners that land bearing Block No.489/2 admeasuring 00 - 36 - 42 Hectare - RA - Sq. Mts. situated at Mouje Ladol, Tal. Vijapur was originally owned by Bai Hira Mulshankar. The father of the petitioners late Gedalmiya Alladin was the tenant in respect of the disputed land in question on tillers day. Since the owner of the land was a widow, as per Section 32 F of the Tenancy Act, sale in favour of the father of the petitioner was postponed and entry to that effect was mutated vide Entry No.5186 in the revenue record. 3.1 Upon death of Gedalmiya, brother of the petitioners, namely, Ibrahim was holding the land on behalf of the family and he and others purchased the disputed land from original owner for which proceedings under Section 84-C of the Tenancy Act were initiated by way of Tenancy Case No.Ladol/84C/92/1976 and the Mamlatdar & ALT by imposing penalty of Rs.1 regularized the sale in their favour and imposed restrictions of Section 43 of the Tenancy Act and Entry No.9560 was mutated in the revenue record in respect of the above sale. 3.2 According to the petitioners, they are daughters of original tenants and the sisters of Ibrahim - respondent No.5 herein, and they applied for entering their names in the revenue record for which Entry No.26220 was mutated in the revenue record on 21.2.2014. The said entry was mutated on the basis of a declaration-cum-consent of respondent No.5 who happens to be brother of the petitioners i.e. Ibrahim and others whose name was running in the revenue record along with Pedhinama. The said entry was mutated on the basis of a declaration-cum-consent of respondent No.5 who happens to be brother of the petitioners i.e. Ibrahim and others whose name was running in the revenue record along with Pedhinama. 3.3 What is important to note is the fact that when Entry No.26220 was mutated, one of the sister, namely, Roshanbibi had already expired on 22.12.2013 and during her life time, no such application was made and application was made only after death of Roshanbibi and another sister, namely, Basiranbibi had entered in her 60s. 3.4 However, as the present petitioners could not produce any documentary evidence that the petitioners are the agriculturists in view of restrictions of Section 43, Entry No.26220 was not certified and the same was rejected by the Mamlatdar & ALT. Being aggrieved by the said order, appeal was preferred before the Deputy Collector being Appeal No.54 of 2014 which was also dismissed vide order dated 31.7.2014. 3.5 Being further aggrieved, the petitioners preferred Revision Application No.257 of 2014 before the District Collector which was also rejected vide order dated 8.10.2015. Thereafter, the petitioners preferred Revision Application No.HKP/MSN/54/2016 which came to be rejected vide order dated 28.3.2017 by the learned SSRD. 3.6 Hence the present petition. 4. Learned advocate Mr. Jinesh Kapadia appearing for the petitioners submitted that the petitioners happen to be sisters of respondent No.5 - Ibrahim and as the respondent No.5 who happens to be brother of deceased Gedalmiya, all three are legal heirs of Gedalmiya who was the original tenant, by way of succession, they have become agriculturist and, therefore, no such document is required to prove that they are agriculturists. He further pointed out from the order passed in the year 1976 which is annexed along with the additional affidavit at page 47 of the petition, that since the aforesaid order was passed by the Mamlatdar & ALT in respect of tenancy proceedings, an inference is required to be drawn that Gedalmiya was a tenant and, therefore, Gedalmiya being a tenant, all his legal heirs would acquire the status of tenants and agriculturists and, therefore, the Mamlatdar and other revenue authorities were not justified in rejecting Entry No.26220 as being in contravention of the restrictions of Section 43 of the Tenancy Act and as the petitioners have failed to produce any document as an agriculturist. 4.1 Learned advocate Mr. 4.1 Learned advocate Mr. Kapadia further submitted that at the relevant point of time, though Gedalmiya was a tenant, because at the relevant point of time the land in question was held by widow of the landlord, he could not purchase the land and subsequently, the land was purchased by Ibrahim and, therefore, in the revenue record, name of Ibrahim is shown and Gedalmiya's name is not shown. However, learned advocate Mr. Kapadia could not produce any of the orders in respect of tenancy proceedings and relied upon only entries which are annexed along with the petition. Except the above submissions, no other submissions were advanced by learned advocate Mr. Kapadia. 5. Learned advocate Mr. Jay R. Shah appearing for respondent Nos.5.1 to 5.3 supported the case of the petitioners and submitted that the petitioners happen to be legal heirs of deceased respondent No.5 and respondent No.5 does not have any objection if the name of the petitioners are mutated in the revenue record as the co-owner of the land in question. He further submitted that this is purely a family arrangement and State is only a formal party and State ought not to have taken any objection in mutating the name of the petitioners in the revenue record. 6. Ms. Nirali Sarda, learned Assistant Government Pleader appearing for respondent Nos.1 to 4 vehemently opposed the petition and submitted that this entire illusion is created just to defeat the provisions of restrictions of Section 43 of the Tenancy Act. She further submitted that none of the documents are produced on record in respect of proceedings under the Tenancy Act. She further submitted that conveniently, some of the entries which suits the case of the petitioners and respondents are produced on record and in absence of entire order being on record, the claim of the petitioners cannot be believed. 6.1 She has further submitted that it is surprising that though Ibrahim purchased the land in question by way of order passed by the Mamlatdar & ALT in the year 1976, during the life time of sisters and more particularly, Roshanbibi who expired in the year 2013, no such request for mutating the name of sisters in the revenue record was made by the petitioners. It is only after the death of Roshanbibi who died on 22.12.2013, request to mutate the names of the petitioners was made along with affidavit of the respondent No.5 that they do not have any objection. She further submitted that even in respect of another sister i.e. Basiranbibi who also remained silent and did not make any application from 1976 to 2014 for mutating her name or name of her legal heirs in the revenue record. She further submitted that an attempt was made belatedly after delay of 38 years just to acquire the status of an agriculturist and, therefore, the entry was rightly not certified by the Mamlatdar by rejecting Entry No.26220. She further submitted that attempt to mutate the name of the petitioners is nothing but an attempt to by-pass the restrictions of Section 43 of the Tenancy Act and, therefore, this Court is required to consider the controversy in question as a whole and not just a consent given by the respondent No.5. She further submitted that the authorities were right in rejecting the revenue Entry No.26220 as the petitioners could not produce any documentary evidence to indicate that they are agriculturists. She further submitted that all the authorities have rejected the claim of the petitioners by considering the merits of the matter as well as considering the fact that the entry was sought to be mutated after gross delay of 38 years. She, therefore, prayed for dismissal of the petition. 7. Heard learned advocates appearing for the respective parties and perused the record. On perusal of the record, I found that though the entire case of the petitioners is based on an order dated 21.1.976 passed by the Tribunal, Vijapur in Tenancy Case No.Ganot/Case/Ladol/Vashi/576/36, the said order is not on record. The record also indicates that the advocate for the petitioner on 11.9.2023 requested for time to produce the aforesaid order on record. Despite considering the fact that even after the time was granted vide order dated 11.9.2023 to produce the aforesaid order, even after six months, the petitioner failed in producing the aforesaid order on record. The entries produced by the petitioner are not the conclusive evidence about right of the petitioners and in absence of there being any order in support of the petitioners' claim, the petitioner's claim cannot be believed. The entries produced by the petitioner are not the conclusive evidence about right of the petitioners and in absence of there being any order in support of the petitioners' claim, the petitioner's claim cannot be believed. Further, even though the petition is pending since 2017 and the entry in question is of the year 2014, till date, the petitioners could not produce any document indicating that the petitioners are agriculturists. Therefore, considering the totality of the facts and circumstances of the case, I find force in the submission of learned AGP Ms. Sarda that this is nothing but an attempt to acquire the status of an agriculturist by getting the name mutated as co-owner in respect of an agricultural land by the legal heirs of Gedalmiya. On perusal of the record, I could not find a single document whereby the petitioner's claim is supported either on account of the fact that they are agriculturists, there is no entry worth the name indicating that at any point of time, any of the petitioners were holding any agricultural land. Further, when the petitioners are not agriculturists, as rightly held by the authorities and as rightly held by the Mamlatdar while rejecting Entry No.26220 that the petitioners are not agriculturists, therefore, the submission of learned AGP Ms. Sarda that the entire petition is nothing but an attempt to come out of the riggers of restrictions of Section 43 and to acquire the status of agriculturists is well founded. What is not provided under the Act directly cannot be done indirectly by getting the name mutated as co-owner in the agricultural land by the person who are not agriculturists. 8. I have also considered the fact that sisters for 38 long years did not make any attempt to get their names mutated in the revenue records, it is only after death of one of the sister and while another sister entered her 60s, names of the legal heirs of said sisters were sought to be mutated in the revenue record. If a person is an agriculturist, he is expected to act vigilantly for mutation of his name by way of succession in the revenue record. Such belated action has rightly been not permitted by the revenue authorities and has rightly been rejected by the revenue authorities. 9. I do not see any illegality or error committed by any of the revenue authorities. Such belated action has rightly been not permitted by the revenue authorities and has rightly been rejected by the revenue authorities. 9. I do not see any illegality or error committed by any of the revenue authorities. Hence, the present petition is required to be dismissed and the same is dismissed. Rule discharged. No order as to costs.