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Gujarat High Court

State Of Gujarat vs Shivganaga Farms Private Ltd on 15 June, 2018

Author: N.V.Anjaria

Bench: N.V.Anjaria

        C/SCA/8808/2018                                           ORDER




         IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 8808 of 2018

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                          STATE OF GUJARAT
                               Versus
                    SHIVGANAGA FARMS PRIVATE LTD
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Appearance:
MR MANAN MEHTA, AGP (1) for the PETITIONER(s) No. 1,2
for the RESPONDENT(s) No. 1,2,3
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 CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA

                            Date : 15/06/2018

                                ORAL ORDER

Heard learned Assistant Government Pleader Mr.Manan Mehta for the petitioner - State.

2. The challenge is directed against order dated 26th September, 2016 passed by the Gujarat Revenue Tribunal in Revision Application No.216 of 2015, whereby the Tribunal set aside the order of the Mamlatdar & ALT dated 15th October, 2014 in Ganot Case No.29 of 2011, further set aside order dated 16th July, 2015 of Deputy Collector, Prantij, in Ganot Case No.05 of 2014.

3. Respondent No.1 which is a private company, purchased land in question from private respondent No.2 on 30th November, 2009, pursuant to which Mutation Entry No.349 was entered. The Entry was certified stating that it was a transaction between one agriculturist and another agriculturist.

Immediately thereafter, within few months, the Mamlatdar & ALT initiated proceedings for breach of Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 on the ground that purchase being a private limited company, could not be treated as agriculturist. The order passed by the Mamlatdar came to be confirmed by the Deputy Collector, which came to be set aside by the Revenue Tribunal. One of the reasons on which the Tribunal set aside the orders of the Mamlatdar and Deputy Collector was that the proceedings were initiated after gap of four years from the date of Mutation Entry.

4. This ground is manifestly erroneous since the Mamlatdar started the proceedings immediately after making of the Mutation Entry on the aforesaid ground. The order of the Tribunal suffers from total non-application of mind on this count. The legal aspect in the matter is more meritorious which is overlooked and misread by the Tribunal.

5. With regard to the aspect whether the respondent private company could be said to be agriculturist and whether could be prosecuted for breach of Section 63 of the Tenancy Act, decision of the Division Bench of this Court in State of Gujarat v. Prathmesh Farms Pvt. Ltd. [2011 (1) GLR 159] could be successfully relied on. The Division Bench considered the question whether juristic person such as private company could fall within the definition of agriculturist. The authorities had issued Circular dated 23rd November, 1998 and excluded the private Page 2 of 4 C/SCA/8808/2018 ORDER company from being treated as agriculturist.

5.1 The Division Bench held as under.

"8. In view of the express legal provisions of the Act enacted with the express objects, inter alia, of regulating and imposing restrictions on transfer of agricultural lands could hardly accommodate a juristic person or a company as an "agriculturist". According to the clear definitions, a legal person cannot cultivate land personally by its own labour or under personal supervision of itself or its family members. Therefore, the word "person" defined in section 2 (11) to include a joint family, cannot be allowed an expansive interpretation so as to include a legal person in the context of the provisions of section 63 of the Act."

5.2 It was further observed thus, "11. ... ... ... the restriction on transfer of agricultural land to non-agriculturist, under the pain of invalidation of such transfer, as envisaged in the provisions of Section 63 of the Act, is different from and totally unrelated to the legal capacity of a body corporate to hold agricultural land. Even if it were held in a particular context that a juristic person could legally "hold" or "own" agricultural land, it cannot be construed as a licence to transfer the land to such artificial person in spite of its incapacity to personally cultivate the land as required under the Act."

5.3 It was finally concluded, "13. In view of the above discussion of the relevant legal provisions and the ratio of the judgments of the Apex Court, it is clear that the impugned circular dated 23.11.1998 was in consonance with the relevant provisions of the Act and the Rules made thereunder and the notices issued on the basis of that circular could not be quashed as the authorities were entitled and required to initiate proceeding under section 84-C of the Act, even without reference to and reliance upon the impugned circular. In that view of the matter, whether the impugned circular could have retrospective effect or not becomes irrelevant as the law as interpreted by the Court must take its own effect and must be implemented accordingly regardless of any particular interpretation put upon it by the implementing agencies or the date on which such administrative interpretation is handed out for necessary actions in accordance with the Act."

5.4 The aforesaid decision in Prathmesh Farms Pvt. Ltd. (supra) was taken before the Apex Court in Special Leave to Petition (Civil) No.31841 of 2010 which came to be dismissed on 26th November, 2010.

6. It is true that the impugned order of the Tribunal was passed in the year 2016, however the averments are made in the petition in paragraph 4 that time was consumed in making proposal to the Collector to challenge the order of the Tribunal and the approval having been granted by the competent authority, the petition was filed. Further, the merits of the matter prima facie evinced as above would outweigh the factor of delay.

6.1 In view of Division Bench judgment in Prathmesh Farms Pvt. Ltd. (supra), judgment and order of the Tribunal could be said to be containing serious infirmity in law.

7. A strong prima facie case is made out. Therefore Rule, returnable on 07th September, 2018.

By way of ad-interim relief, the impugned judgment and order of the Tribunal shall remain stayed.

(N.V.ANJARIA, J) Anup Page 4 of 4