Gujarat High Court
Gurudipisingh Atma Singh Sardar vs State Of Gujarat on 22 April, 2022
Author: A. P. Thaker
Bench: A. P. Thaker
C/SCA/21806/2017 JUDGMENT DATED: 22/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 21806 of 2017
With
R/SPECIAL CIVIL APPLICATION NO. 5136 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE A. P. THAKER Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
GURUDIPISINGH ATMA SINGH SARDAR
Versus
STATE OF GUJARAT & 2 other(s)
==========================================================
Appearance:
for the Petitioner(s) No. 2
ANSHUL N SHAH(8540) for the Petitioner(s) No. 1
MR SP MAJMUDAR(3456) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 1
RULE SERVED for the Respondent(s) No. 2,3
==========================================================
CORAM:HONOURABLE DR. JUSTICE A. P. THAKER
Date : 22/04/2022
ORAL JUDGMENT
1. Since common question of law are involved in both these matters, both the matters are tagged Page 1 of 12 Downloaded on : Mon Apr 25 20:50:52 IST 2022 C/SCA/21806/2017 JUDGMENT DATED: 22/04/2022 together and hence, heard together.
2. Being aggrieved by the order dated 11.08.2017 passed by the learned Special Secretary Revenue Department (hereinafter referred to as "the SSRD") whereby revision application no.MVV/HKP/ VAD/80/2013 of the petitioner came to be rejected and order of the District Collector dated 28.03.2013 in RTS/Suo Motu/Rev/Case No.53 of 2012 came to be confirmed, the petitioner Mr.Gurdipsinh A. Sardar has filed the present Special Civil Application No.21806 of 2017 under Article 226 of the Constitution of India.
3. Being aggrieved by the order dated 21.06.2013 passed by the District Collector in R.T.S./ Suo Motu/ Case No.13 of 2012 as well as the impugned order dated 30.01.2019 passed by the Special Secretary, Revenue Department in Revision Application No.MVV/HKP/VADAD/173 of 2013, the petitioner Smt. Jatenderjeet Kaur mahipal Singh has filed the present Special Civil Application No.5136 of 2019 under Article 226 of the Constitution of India.
4. The facts of the Special Civil Application No.21806 of 2017 are as under:-
5. The brief facts of the petition are that the petitioner was earlier occupying premises situated at Block No.452 admeasuring hectares 0-19-22 of Mouje Manjusar, Taluka Savli which came to be regularized by the Additional Mamlatdar and Krushipanch Savli vide order dated 09.02.1994 in Tenancy Case No.70/B/184-C/1817/94 upon the Page 2 of 12 Downloaded on : Mon Apr 25 20:50:52 IST 2022 C/SCA/21806/2017 JUDGMENT DATED: 22/04/2022 payment of fine. The name of the petitioner was mutated in the revenue record vide entry no.5522 dated 22.02.1994, thereafter the said land was acquired by GIDC Savli vide award no.KH/F/M/JS/ VD-84(1) and certificate dated 07.04.1994 bearing registration no.694 was issued to the petitioner. That the said certificate specifically mentions that the certificate is being issued for the purpose of buying land anywhere else in the State of Gujarat. Accordingly, the petitioner purchased land situated at revenue survey nos.110, 114 and 814 admeasuring 0-13-08 hectares RA-Squaremeters situated Mouje Jaspur, Taluka Padra, Vadodara by way of a registered sale deed dated 19.03.2007. In pursuance thereof revenue entry no.5131 dated 08.05.2007 came to be mutated and came to be certified. Thereafter, vide entry no.6187, the names of the heirs of the deceased petitioner was entered in the revenue record and also came to be certified on 03.12.2010. The entry no.5131 and entry no.6187 were taken into Suo-motu revision by the respondent Collector being case no.53 of 2012 on the ground that the petitioner is not an agriculturist. And that the seller of the land in question was a minor at the time of the aforesaid transaction.
5.1. It is contended that learned Collector, Vadodara without giving any notice or opportunity of hearing to the petitioner, cancelled both the entries from the revenue record vide his order dated 28.03.2013, the same was assailed by the petitioner before the learned SSRD who has also confirmed the order of the learned Collector and dismissed the revision application. It is contended that the impugned order of the revenue Page 3 of 12 Downloaded on : Mon Apr 25 20:50:52 IST 2022 C/SCA/21806/2017 JUDGMENT DATED: 22/04/2022 authorities are contrary to the provisions of the Gujarat Land Revenue Code and they have not dealt with the contentions raised by the petitioner while passing the impugned order. It is also contended that the suo motu revisional powers exercised by the authorities are exercised by the authorities are exercised beyond the reasonable period. It is also contended that the multiple entries cannot be set aside in one suo motu proceedings by the District Collector. It is also contended that the revenue entries cannot be set aside unless original transaction has been set aside. It is contended that in the present case, the transaction are not cancelled or set aside by any competent Court and therefore, the revenue authorities cannot set at naught those transaction merely by setting aside the revenue entries in a revenue proceedings. It is also contended that the registered sale deed executed in favour of the petitioner and the predecessors of the petitioners have not been set aside by filing suit under the provisions of the Specific Relief Act, 1963.
5.2. It is also contended that after the said property was inherited by the heirs of the original owner of the property, after his death, and if the son or daughter was a minor, a mother as a natural guardian would have right to alienate or transfer the shares of a minor, in such circumstances for the benefit of the minor, it is contended that the order of the authorities is without jurisdiction and without authority of law and deserves to be quashed and set aside.
6. The facts arising out of Special Civil Application No. 5136 -2019 are as under:-
Page 4 of 12 Downloaded on : Mon Apr 25 20:50:52 IST 2022C/SCA/21806/2017 JUDGMENT DATED: 22/04/2022
7. As per the averments made in Special Civil Application No.5136 of 2019, the petitioners are the heirs of Gurudipsinh Atmasinh Sardar who was petitioner in Special Civil Application no.21806 of 2017. The dispute pertains to the land situated at revenue survey no.Block No.14/ B/ Paiki, admeasuring 0-47-00 hectares RA square meters of village Ampad, Taluka- District Vadodara. The facts of the purchase of land by her is their fathers land and mutation of the entry no.6187 in respect of land of Village Jaspur has been narrated. According to the petitioner, they have purchased the land of village Ampad by way of registered sale deed dated 23.12.2010 from its original owner Swarnjeet Singh @ Sharandeep Udham Singh and entry no.2296 was mutated in the revenue record on 05.01.2011. According to the petitioner, she is an agriculturist as her father was an agriculturist and she is doing agricultural activities. It is contended that the District Collector initiated suo motu proceedings by way of RTS/Suo Motu/ Case No.13 of 2012 and cancelled the mutation entry no.2296 vide his order dated 21.06.2013 holding that there is a breach of provisions of Section 84 of the Gujarat Tenancy and Agricultural Land Act, 1948 and directed to initiate further proceedings. Being aggrieved, the petitioner approached the learned SSRD by preferring Revision Application No.MVV/HKP/VADAD/173/2013, which also came to be dismissed, directing to complete the proceedings under Section 84 of the Gujarat Tenancy and Agricultural Land Act, 1948. Being aggrieved with both these orders, the petitioner has preferred Special Civil Application 5136 of Page 5 of 12 Downloaded on : Mon Apr 25 20:50:52 IST 2022 C/SCA/21806/2017 JUDGMENT DATED: 22/04/2022 2019 and on the same ground as alleged in Special Civil Application No.21806 of 2017 and has prayed to quash the order of the revenue authorities.
8. Heard learned advocate Mr.S.P.Majmudar for the petitioner and learned AGP Mr.Nikunj Kanara for the respondent State at length.
9. Learned advocate Mr.Majmudar for the petitioner has submitted that the petitioner of Special Civil Application No.5136 of 2019 is a daughter of Gurdipsinh A. Sardar who is a petitioner of Special Civil Application No.21806 of 2017. He has submitted that the land of the Gurdipsinh was went into compulsory acquisition and accordingly the competent authority has issued certificate as of agriculturist in favour of him and accordingly he has purchased the land. He has submitted that the authority has taken into revision the entry and has cancelled it on the basis that the petitioner is not an agriculturist. According to him, necessary documents relating to the petitioner is being agriculturist is already produced by way of affidavit and the petitioner is an agriculturaist of U.P. He has submitted that thereafter he has purchased the land in the State of Gujarat and his land came to be acquired for public purpose and this fact is not denied by the respondent. He has also submitted that unless and until the sale deed is set aside revenue entry cannot be cancelled. He has submitted that revenue authority has no authority to act under the Tenancy Act in RTS proceedings. He has also submitted that no proceedings under Section 84(C) of the Tenancy Page 6 of 12 Downloaded on : Mon Apr 25 20:50:52 IST 2022 C/SCA/21806/2017 JUDGMENT DATED: 22/04/2022 Act has been initiated. He has submitted that the cross utilization of power is impermissible under the law. He has submitted that the decision of Full Bench of this Court is not stayed by the Apex Court and only Special Leave Petition is filed. He has submitted that in view of the various decision on which he has placed reliance, both the petitions deserve to be allowed and the impugned order of the authority deserves to be set aside. He has relied upon the following decisions in support of his decisions.
(i) In case of Nathubhai Meraman Darji V.s Special Secretary (Appeal) reported in 1996 (3) GDC 691.
(ii) In case of Ratilal Maganlal Intwala Since Deceased Through Heirs Vs. Special Secretary (Appeal) reported in 2013 (3) G.L.R. 2520.
(iii) In case of Jhaverbhai Savjibhai Patel Through Power of Attorney Ashok J. Patel Vs. Kanchanben Nathubhai Patel & Ors reported in 2005 (3) G.L.H. 657.
(iv) In case of Mohamad Kavi Mohamad Amin V. Fatmabai Ibrahim reported in 1997 (6) S.C.C.
71.
(v) In case of Bhajansingh Gopalsingh Sardar V.s State of Gujarat in Special Civil Application no.8265 of 2012 vide order dated 02.08.2017.
(vi) In case of District Collector and Ors. V.s P.M.Shikh And Anr etc. in Special Leave to Page 7 of 12 Downloaded on : Mon Apr 25 20:50:52 IST 2022 C/SCA/21806/2017 JUDGMENT DATED: 22/04/2022 Appeal No.20449 -20479/ 2012 dated 30.07.2012.
10. Per contra learned AGP Mr.Nikunj Kanara has submitted that the order of the revenue authorities are proper. He has submitted that the purchase of land by non-agriculturist of Gujarat State is not permissible. He has submitted that when the petitioners were not agriculturists of the State of Gujarat, they have no any right title to purchase the land in State of Gujarat as they cannot be treated as agriculturist in the State of Gujarat. He has submitted that the revenue authorities has not committed any error of facts and law in passing impugned orders. He has prayed to dismiss both the petitions.
11. Having considered the submissions made on behalf of both the sides coupled with the material placed on record and the decision cited at the bar, it appears that there is no dispute that the land of the petitioner Gurdipsinh was acquired by the authority for the public purpose and necessary certificate was issued to him for permitting him to purchase the land. It also appears that he has purchased the land in the year 2007 of Village Jaspur along with others and entry was mutated in the same. The same was came to be certified in the year 2007 itself. It also appears from the record that even in the year 2010, heirship entry was also mutated in the revenue record. It appears from the record that Special Investigating Officer has issued land losser certificate in the favour of Gurdipsingh for block no.1452 of land of 0-19-22 Page 8 of 12 Downloaded on : Mon Apr 25 20:50:52 IST 2022 C/SCA/21806/2017 JUDGMENT DATED: 22/04/2022 hectares RA square meters vide dated 07.04.1994. It also reveals from the additional affidavit of the petitioner that he has produced necessary revenue records showing he being an agriculturist by the State of Uttar Pradesh. Thus, the factum of him being agriculturist of State of Uttar Pradesh is on record. It also reveals that the petitioner of Special Civil Application no.5136 of 2019 is daughter of Gurdipsingh, thus she is a daughter of agriculturist. At this juncture, it is worthwhile to refer the decision of the Full Bench of this Court in case of Preetisingh Mukandsingh Shikh & Others V. State of Gujarat and others in Letters Patent Appeal No.1106 of 2011 and allied matters wherein in para 39 and 40 has observed as under:-
"39. We, therefore, find substance in the contention of the appellants that a person who does not own agricultural land within the State of Gujarat at the time of purchase cannot be treated to be a non-agriculturist within the meaning of the Act simply because he does not cultivate any agricultural land within the State of Gujarat and on that ground alone, the purchase of any agricultural land by such a person will not be hit by the provisions contained in section 89 of the Act.
40. We, consequently, set aside the decision of the District Collector, Kutch who issued instructions to the concerned Mamlatdar to freeze the 'khedut khatas' [agricultural accounts] of the appellants until further instructions on the ground Page 9 of 12 Downloaded on : Mon Apr 25 20:50:52 IST 2022 C/SCA/21806/2017 JUDGMENT DATED: 22/04/2022 that the appellants are agriculturists belonging to other States. We also quash the circular No. TNC/1073/58184/J of the Revenue Department of the Government of Gujarat dated 4th April 1973 wherein it was indicated that any sale of land made to any nonagriculturists in Gujarat on the strength of his status as agriculturist in any other State outside Gujarat would attract the provisions contained in section 63 of the Bombay Tenancy & Agricultural Lands Act, 1948 and section 54 of the Saurashtra Tenancy and Garkhed Settlement Ordinance and section 89 of the Bombay Tenancy and Agricultural Land [Vidarba Region and Kutch Area) Act, 1958 on the strength of certificates about their status as agriculturists in other States."
12. The aforesaid observation has also been referred to by this Court in case of Bhajansingh Gopansingh Sardar (Supra) in Special Civil Application No.8265 of 2012 vide order dated 02.08.2017. The Full Bench decision of this Court has been challenged by way of filing Special Leave Appeal before the Supreme Court. But the Supreme Court has not stayed the operation of the same. Hence, at present the law laid down by the Full Bench decision is to be abide by all the authorities.
13. In view of the above, the impugned orders of Page 10 of 12 Downloaded on : Mon Apr 25 20:50:52 IST 2022 C/SCA/21806/2017 JUDGMENT DATED: 22/04/2022 the revenue authorities cannot be sustained in the eyes of law.
14. Moreover, when the revenue authorities were acting under the RTS proceedings, they cannot take any decision under the other statutes like Tenancy Act. Moreover, the exercise of revisional powers under Section 211 of the Gujarat Land Revenue Code is also to be exercised in reasonable period of time. In the present case, the exercise of such powers is not within a reasonable time as the original entry is mutated in the year 2007 and suo motu revision has been initiated in the year 2012. On this ground also the order of the authority is unsustainable in the eyes of law.
15. Further, since the sale transaction is not set aside by any competent Court, the revenue authority has no jurisdiction to set at naught the sale transactions between the parties by merely cancelling the mutation entry in the revenue record.
16. Thus, in view of the above facts and circumstances, the impugned orders of both the authorities deserves to be set aside.
17. Accordingly, both the petitions are hereby allowed.
(i) The order dated 11.08.2017 passed by the learned SSRD in Revision Application No. MVV/HKP/VAD/80/2013 and order dated Page 11 of 12 Downloaded on : Mon Apr 25 20:50:52 IST 2022 C/SCA/21806/2017 JUDGMENT DATED: 22/04/2022 28.03.2013 passed by the District Collector in RTS/Suo Motu/Rev/Case No.53 of 2013 as impugned in Special Civil Application No.21806 of 2017 are hereby quashed and set aside.
(ii) The order dated 30.01.2019 passed by the learned SSRD in Revision Application No.MVV/ MVV/HKP/VADAD/173 of 2013 as well as order dated 21.06.2013 passed by the District Collector in R.T.S./ Suo Motu/ Case No.13 of 2012 as impugned in Special Civil Application No.5136 of 2019 are hereby quashed and set aside.
Rule is made absolute in both the petitions. No order as to costs in both the petitions. Direct service is permitted.
Sd/-
(DR. A. P. THAKER, J) URIL RANA Page 12 of 12 Downloaded on : Mon Apr 25 20:50:52 IST 2022