Gujarat High Court
State Of Gujarat vs Karunakumari Girdharilal on 16 January, 2020
Equivalent citations: AIRONLINE 2020 GUJ 533
Author: A. S. Supehia
Bench: A.S. Supehia
C/SCA/20308/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20308 of 2016
==========================================================
STATE OF GUJARAT
Versus
KARUNAKUMARI GIRDHARILAL & 1 other(s)
==========================================================
Appearance:
MR DHAWAN JAYSWAL, AGP for the Petitioner(s) No. 1
MR TATTVAM K PATEL(5455) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
==========================================================
CORAM: HONOURABLE MR.JUSTICE A.S. SUPEHIA
Date : 16/01/2020
ORAL ORDER
1. By this writ petition, the petitioner-State is challenging the judgment and order dated 17.02.2016 passed by the Gujarat Revenue Tribunal (hereinafter referred to as "the Tribunal) passed in the Revision Application No.TEN/BA/205 of 2012.
2. Learned AGP Mr.Dhawan Jayswal appearing for the State has submitted that from the record it appears that with respect to lands bearing Survey nos.111, 112, 113, 117 and 118 of Mauje Village Randesan, Taluka and District Gandhinagar, the sale transaction took place in favour of the present respondent no.1 on 28.10.2004 by way of registered sale deed. He has submitted that thereafter one Mr.Ambalal Mathurdas Patel addressed one application on 25.05.2010 pointing out Page 1 of 11 Downloaded on : Mon Feb 17 01:04:24 IST 2020 C/SCA/20308/2016 ORDER that the respondent no.1, who purchased the aforesaid land, is not an agriculturist.
2.1. Learned AGP has further submitted that pursuant to the aforesaid application, since it was found that respondent no.1 is a non-agriculturist, proceedings under Section 84 (C) of the Gujarat Tenancy and Agricultural Lands Act, 1948 (for short "the Act"), came to be initiated by the Mamlatdar, Gandhinagar . He has submitted that by the order dated 17.06.2011, the Mamlatdar passed an order to close the inquiry initiated under Section 84 (C) of the Act with respect to the above referred lands. It is contended that the above referred proceedings under Section 84(C) of the Act passed by the Mamlatdar and ALT was taken into revision by the Deputy Collector (Land Reforms) under Section 76(A) of the Act and the same was registered as Tenancy Revision/S.R. No.86 of 2011.
3. It is asserted that the Deputy Collector (Land Reforms), Gandhinagar, considering the fact that respondent no.1 has been conferred the status of agriculturist by getting the land bearing survey Block No.43 of Mauje Ajitpura, Taluka and District Vadodara by way of execution of a Will by one Shri Nanabhai Thakurbhai Gheevala on 16.05.2000 in favour of the respondent no.1; the aforesaid proceedings were initiated. He has submitted that since there is no clarity or clear Page 2 of 11 Downloaded on : Mon Feb 17 01:04:24 IST 2020 C/SCA/20308/2016 ORDER evidence in this regard, the Deputy Collector (Land Reforms) decided the aforesaid revision vide order dated 08.06.2012 by setting aside the order dated 17.06.2011 passed by the Mamlatdar & ALT and remanded the case to the Mamlatdar, Gandhinagar to decide afresh considering the observations made therein.
4. Learned AGP has submitted that being aggrieved and dissatisfied with the above order, the respondent no.1 preferred Revision Application No.TEN/BA/205 of 2012. He has submitted that by the impugned order dated 17.02.2016, the Tribunal allowed the above referred revision application preferred by the respondent no.1, which is impugned in the present petition. He has submitted that the Tribunal has failed to appreciate the entire controversy with regard to the violation of the provisions of Section 63 of the Act by ignoring the status of the respondent no.1 of being a non-agriculturist. He has submitted that in fact the respondent no.1 does not belong to the State of Gujarat and she could not have been conferred the status of non-agriculturist by way of Will executed by one Shri Nanabhai Thakurbhai Gheevala. He has also submitted that the Tribunal has travelled beyond the scope of revision by holding that the proceedings under Section 84(C) of the Act were initiated beyond the reasonable period. He has submitted that in fact there is no such limitation raised with regard to the aforesaid proceedings as Page 3 of 11 Downloaded on : Mon Feb 17 01:04:24 IST 2020 C/SCA/20308/2016 ORDER the entire sale has been premised on the illegal status conferred upon the respondent no.1 as she is not an agriculturist. Thus, he has submitted that the impugned judgment and order may be set aside.
5. In response to the aforesaid submissions, learned advocate Mr.Tattvam K. Patel appearing for the respondent no.1 has submitted that the entire petition is based on a misconceived fact that the land cannot be transferred by way of a Will to a person who is belonging outside Gujarat by way of a Will. He has submitted that the issue is no more res integra in view of the judgment of the Supreme Court in the case of Mahadeo (Dead Through Legal Representatives) v. Shakuntalabai, (2017) 13 SCC
756. He has also placed reliance on the order of the Coordinate Bench dated 26.07.2019 passed in Special Civil Application No.10384 of 2018 and on the decision of the Larger Bench in the case of Preethisingh Mukandsingh Shikh & Ors. vs. State of Gujarat & Ors. 2012(2) G.L.R. 1608. Further, the learned advocate Mr.Patel has submitted that the impugned order is required to be set aside the proceedings are initiated by the Mamlatdar, Gandhinagar after a period of six years.
6. In support of his submissions, learned advocate Mr.Patel for the respondent no.1 has placed reliance on the decision of the Coordinate Bench of this Court in the case of Rajeshbhai Vithalbhai Patel vs. State of Gujarat, 2016 (4) G.L.R. 3499. Thus, he has submitted that the provisions Page 4 of 11 Downloaded on : Mon Feb 17 01:04:24 IST 2020 C/SCA/20308/2016 ORDER of Section 63 of the Act does not lay down any classification of agriculturist, belonging to the State of Gujarat or outside. While referring to the definition of sub-section (2) of Section 2 and sub-section (6) of Section 2 of the Act, he has submitted that the land, which was bequeathed to the respondent no.1 by late Nanabhai Thakurbhai Gheevala was legal and hence, the impugned order requires to be sustained.
7. I have heard the learned advocates appearing for the respective parties. The documents as pointed out by them are also perused.
8. In the present writ petition, the petitioner-State is challenging the impugned judgment and order dated 17.02.2016 passed by the Tribunal in Revision Application No.TEN/BA/205 of 2012. The aforesaid proceedings emanate from the order dated 17.06.2011 passed by the Mamlatdar, Gandhinagar, which was initiated under Section 84(C) of the Act. After the aforesaid proceedings were closed, the Deputy Collector (Land Reforms) while exercising the powers under Section 76A of the Act, has taken the proceedings of section 84C in revision. The Deputy Collector, Gandhinagar was influenced by the execution of a Will by Nanabhai Thakurbhai Gheevala on 16.05.2000 in favour of the respondent no.1. He has also doubted the status of the petitioner being a non-resident of Gujarat. In the aforesaid revision application, the Deputy Collector (Land Reforms) by the order dated 18.06.2012 set aside the Page 5 of 11 Downloaded on : Mon Feb 17 01:04:24 IST 2020 C/SCA/20308/2016 ORDER order dated 17.06.2011 passed by the Mamlatdar, Gandhinagar and remanded the case to him for fresh consideration.
9. The facts as narrated hereinabove reveal that the Mamlatdar, Gandhinagar, initiated the proceedings by the order dated 17.06.2011 by resorting to the provisions of Section 84(C) of the Act after a period of six years. Subsequently, the said proceedings have been closed. The Deputy Collector, disagreed with the same and set aside the order of the Mamlatdar, Gandhinagar and remanded for fresh consideration for the reasons mentioned therein. Thus, the proceedings of the Mamlatdar were initiated after a lapse of period of six years. The authorities below i.e. the Mamlatdar as well as the Deputy Collector are impressed upon the fact of bequeathing the land by way of registered sale deed in the year 2010 in favour of the respondent no.1 is illegal as he is non-agriculturist and does not belong to state of Gujarat.
10. At this stage, it would be apposite to refer to the observations made by the Coordinate Bench in identical facts in the case of Rajeshbhai Vithalbhai Patel (supra), this Court has observed thus:
"5. In the instant case, the revisional power was sought to be exercised by the Deputy Collector after a period of 8 years of the entry certified by the Mamlatdar, which could not to be said to be a reasonable period by any stretch of imagination. Though the court finds substance in the submission of learned AGP that assignment made in the Will, would tantamount to transfer, in view of the decision rendered by the Division Bench in the case of Rajenbhai Baldevbhai Shah (supra), the Court is not inclined to deal with the said issue at this juncture. The Court is of the opinion that the respondent Deputy Collector had exercised the powers of revision after an unreasonable delay of 8 years. The said order of Deputy Collector having confirmed by the Gujarat Revenue Page 6 of 11 Downloaded on : Mon Feb 17 01:04:24 IST 2020 C/SCA/20308/2016 ORDER Tribunal, both the orders deserve to be set aside."
This Court has held that the revisional powers has to be exercised within a reasonable period and order passed by the Collector by exercising such powers beyond the period of 8 years is set aside. In the present case the period of six years cannot be said to be a reasonable period. The Mamlatdar had closed the proceedings vide order dated 17.06.2011 against the sale transaction which took place in favour of respondent no.1 on 28.10.2004, but the Deputy Collector exercised the revisional power and remanded the case to the Mamlatdar vide order dated 08.06.2012. The Tribunal has precisely considered the aspect of delay in exercising the powers. Thus, no illegality or infirmity can be said to have been committed by the Tribunal in passing the impugned order dated 17.02.2016.
11. The entire dispute is premised on the status of the respondent no.1 being a non-agriculturist and the transfer of agricultural land in her favour by a Will. It is the case of the petitioner-State that such transfer is hit by the provisions of Section 63 of the Act since the respondent no.1 does not belong to the State of Gujarat and the land cannot be transferred by way of Will to such a person. At this stage I may with profit incorporate the observations made by the Supreme Court in the case of Mahadeo (Dead Through Legal Representatives) (supra), wherein it has been observed as under :
Page 7 of 11 Downloaded on : Mon Feb 17 01:04:24 IST 2020 C/SCA/20308/2016 ORDER
"6. The High Court took the view that the provisions of section 57 of Bombay Tenancy and Agricultural Lands Act, 1948 pertaining to Vidarbha Region do not permit the transfer of land by way of a Will. Section 57 of the Act which is relevant reads as follows :
Section 57(1) No land purchased by a tenant under section 41 or 56 (or 49-A (570) or 130 or sold to any person under section 91 or 122 shall be transferred by sale, gift, exchange, mortgage, lease or assignment without the previous sanction of the Collector. Such sanction shall be given by the Collector in such circumstances and subject to such conditions as may be prescribed by the State Government. (2) Any transfer of land in contravention of sub-section(1) shall be invalid :
Provided that nothing in this section shall apply to the lands purchased by an occupancy tenant.
7 On a plain reading of the aforesaid provision, it is clear that transfer without the previous sanction of the Collector is impermissible by way of sale, gift, exchange, mortgage, lease or assignment. There is no prohibition in so far as the transfer of land by way of a Will is concerned. In fact, in view of the decision of this Court in State of West Bengal and anr. vs. Kailash Chandra Kapur and ors., (1997) 2 SCC 387, devolution of property by way of a Will does not amount to a transfer of the property. This is clear from para 12 of the aforesaid decision wherein it has been observed that transfer connotes, normally, between two living persons during life. However, a Will takes effect after demise of the testator and transfer in that perspective becomes incongruous.
The issue raised in the present writ petition rests on the interpretation of section 63 of the Act. The relevant extract of section 63 of the Act is reproduced herein under:
"SECTION 63 : Transfers to non-agriculturists barred (1) Save as provided in this Act, Page 8 of 11 Downloaded on : Mon Feb 17 01:04:24 IST 2020 C/SCA/20308/2016 ORDER
(a) no sale (including sales in execution of a decree of a Civil Court or for recovery of arrears of land revenues or for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or
(b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortagee, or "(c) no agreement made by an instrument in writing for the sale, gift, exchange, lease or mortgage of any land or interest therein. shall be valid in favour of a person who is not an agriculturist or who being an agriculturist cultivates personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not an agricultural labourer:
Provided that the Collector or an officer authorised by the State Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage or for such agreement, on such conditions as may be prescribed :
Provided further that no such permission shall be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees."
The afore-mentioned section interpreted by the Apex Court is para materia to the provisions of section 63 of the Act which bars transfer of land by way of sale, gift, exchange or lease, or the agreement for sale, exchange or lease to an non-agriculturists. The Supreme Court has held that such transfer of land by way of Will is not prohibited as per the provisions of the section. Thus, a plain and simple reading of the provisions of section 63 of the Act will depict that the transfer of land is not prohibited by way of Will, hence no illegality can be found in the transfer of land to the respondent no.1 by way of Will.
12. With regards to the contention raised by the petitioner questioning the status of the respondent no.1 as a non resident of Gujarat, and as a Page 9 of 11 Downloaded on : Mon Feb 17 01:04:24 IST 2020 C/SCA/20308/2016 ORDER sequel barring the transfer of land to her; it will be apposite to refer to the judgment of the Larger Bench rendered in the case of Preethisingh Mukandsingh Shikh (supra) while considering the identical issue with the larger bench has observed thus:
"37. We are also unable to approve the submission of Mr. Trivedi that application of the Gujarat Agricultural Lands Ceiling Act, 1960 as applied by virtue of Section 5[3] of the Bombay Tenancy Act cannot lead to a situation whereby a tiller from outside the State of Gujarat can also become agriculturist in the State of Gujarat. "Agriculturist" is a qualification and the State Legislature is entitled to accept any person, who is recognized as an agriculturist in other State of India as an agriculturist in the State of Gujarat. There is no prohibition contained in the Act to prohibit purchase of land at the instance of an agriculturist having agricultural land outside the State except for the purpose of ceiling and if such prohibition was there, it would definitely be violative of Article 15 of the Constitution of India. We are quite conscious that under the Gujarat Agricultural Lands Ceiling Act, 1960, land situated in this State is the subject-matter and the fact that agriculturist can hold land in Gujarat in addition to the land in other State itself negatives the contention of the learned Advocate General that Section 89 is applicable to an agriculturist simply because, he at the time of purchase holds land outside the State of Gujarat though complies with all the requirements of the Act.
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 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 non- agriculturists 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."Page 10 of 11 Downloaded on : Mon Feb 17 01:04:24 IST 2020 C/SCA/20308/2016 ORDER
13. Thus, the Larger Bench has held 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 63 of the Act. Assuming for the sake of argument, that the status of the respondent no.1 can be said to be a non-Gujarati, as per the law enunciated by the Larger Bench and the Apex Court, if read with juxtaposition with the provisions of Section 63 of the Act, the transfer of land by a Will to a person who is not a resident of state of Gujarat is no barred. Perusing the reasoning adopted by the Tribunal with regard to the delay as well as the status of the respondent no.1, this Court is of the considered opinion that the order does not require interference while exercising the powers under Article 226 of the Constitution of India.
14. The present writ petition fails. Notice is discharged. There shall be no order as to costs.
Sd/-
(A. S. SUPEHIA, J) ABHISHEK Page 11 of 11 Downloaded on : Mon Feb 17 01:04:24 IST 2020