Gujarat High Court
Musa Vali Patel & vs Collector & 4 on 31 March, 2014
Author: G.B.Shah
Bench: G.B.Shah
C/SCA/7469/1999 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7469 of 1999
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.B.SHAH
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1 Whether Reporters of Local Papers may be allowed to see
the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the
judgment ?
4 Whether this case involves a substantial question of law as
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
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MUSA VALI PATEL & 1....Petitioner(s)
Versus
COLLECTOR & 4....Respondent(s)
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Appearance:
MS MEGHA JANI, ADVOCATE for the Petitioner(s) No. 1 - 2
MR BHARAT VYAS, AGP for the Respondent(s) No. 1 , 4
MR MAHENDRA K PATEL, ADVOCATE for the Respondent(s) No. 3.1 - 3.2
MR RE VARIAVA, ADVOCATE for the Respondent(s) No. 2 - 2.5
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CORAM: HONOURABLE MR.JUSTICE G.B.SHAH
Date : 31 /03/2014
Page 1 of 17
C/SCA/7469/1999 CAV JUDGMENT
CAV JUDGMENT
1. Heard learned advocate Ms.Megha Jani for the petitioners and learned advocate Mr.R.E.Variava for respondent Nos.2.1 to 2.5, learned advocate Mr.Mahendra K.Patel for respondent Nos.3.1 and 3.2 and learned AGP Mr.Bharat Vyas for respondent Nos.1 to 4.
2. The brief narration of facts of petitioners' case leading to this petition is as under.
2.1 Respondent No.2 - Raysang Ramsang sold the land bearing survey No.59 situated at village: Jolava, Taluka: Vagra, District Bharuch to respondent No.3 - Adam Vali Mohammad and also sold land bearing survey Nos.48/A and 48/B of the same village to respondent No.3/2 - Raziyaben Adam Vali by registered sale deeds dated 17/08/1988. The entries to that effect had been mutated in the Village Form No.6 on 17/08/1988 vide mutation entry Nos.1667 and 1668 Page 2 of 17 C/SCA/7469/1999 CAV JUDGMENT respectively related to survey Nos.59, 48/A and 48/B. So far as survey No.59 is concerned, petitioner No.1 - Musa Vali has been declared a tenant of late Adam Vali of the said land. The respondent No.4 vide his order dated 29.10.1991 declared that the name of petitioner No.1 be shown in column of khedhakk and entry No.1709 was mutated in the record of rights to that effect. The petitioner No.2 was carrying on agricultural activities on the land bearing Survey Nos.48/A and 48/B as a tenant of Raziyaben Adam Vali and was also paying land revenue. Respondent No.4 vide order dated 29.10.1991 declared that the name of petitioner No.2 be shown in column of Khedhakk and entry No.1710 was mutated in the record of rights to that effect. Thereafter, the petitioners herein, vide registered sale deed dated 02/06/1992, purchased the land bearing survey Nos.48/A and 48/B along with land bearing survey Nos.50/A and 50/B from Raziyaben Adam Vali i.e. respondent No.3/2 for a sale consideration of Rs.1,01,000/- and entry No.1721 was mutated Page 3 of 17 C/SCA/7469/1999 CAV JUDGMENT and then certified on 11/08/1992. Thereafter, respondent No.2 herein challenged the mutation entry Nos.1667, 1668, 1709, 1710 and 1721 by preferring the Revision Application being No.67 of 1993 before respondent No.1 i.e. the Collector and vide order dated 04/07/1994, respondent No.1 set aside the aforesaid mutation entries. The said order was challenged before the Special Secretary (Appeals), Revenue Department vide Revision Application No.SRD/BACH/HKP-18/94 and the same was also rejected by the Special Secretary (Appeals), Revenue Department vide order dated 11/05/1999. Moreover, while rejecting the said Revision No.18 of 1994 by the Special Secretary (Appeals), Revenue Department, he has passed further order to the Mamlatdar to initiate the inquiry whether the concerned persons entered as purchasers / cultivators by transfer of lands under mutation entry Nos.1667, 1668, 1709, 1710 and 1721 of record of rights of mouje Jolava were farmers - khatedars before the said land transactions were entered into or not, meaning Page 4 of 17 C/SCA/7469/1999 CAV JUDGMENT thereby, whether they were agriculturists prior to purchase of the said land or not and as per the outcome of said inquiry, effect should be given to those entries accordingly. The said order dated 11.5.1999 is the impugned order challenged by the petitioners by preferring the present petition.
3. Learned advocate Ms.Megha Jani for the petitioners has submitted that after admitting the present petition on 30.9.1999, the Court has passed the following order.
"Heard learned counsel for the
petitioner and Shri Variava for
respondent No.2. The writ petition is admitted. Issue notice to respondent Nos.1, 3/1, 3/2 and 4 returnable on 28.10.1999. Shri Variava waives notice on respondent No.2. Till then direction of the Collector cancelling disputed mutation entries shall remain stayed. It is however clarified that the order of the Addl. Chief Secretary (Appeals) dated 11.5.1999 directing inquiry under the provisions of the Tenancy Act shall operate and till inquiry shall proceed and if the inquiry is completed in the meantime necessary entries can be made in the record of rights."
Page 5 of 17 C/SCA/7469/1999 CAV JUDGMENT 3.1 Learned advocate for the petitioners has then submitted that for compliance of the above referred order dated 30.9.1999, this Court has passed further order dated 11.12.2007 directing the respondents to place on record outcome of the inquiry as referred in the above referred order dated 30.9.1999. The said order dated 11.12.2007 reads as under.
"Ms.Jani, Advocate states that earlier in the proceedings of this petition the Court directed the authority to initiate and conduct an enquiry as per the directions of the respondent Secretary and probably such enquiry has been conducted. She therefore requests that it would be in fitness of things that outcome of the said enquiry is placed on record. The respondents are directed to place on record the outcome of the enquiry, if any, on or before 20th December 2007. S.O.to 20th December 2007."
3.2 Learned advocate for the petitioners has submitted that in pursuance of the above referred interim order passed by this Court in the year 2007 referred above in the present petition, the Mamlatdar and Agricultural Lands Tribunal, Vagra issued notice in the year 2008 under section 84-C Page 6 of 17 C/SCA/7469/1999 CAV JUDGMENT of the Bombay Tenancy and Agricultural Lands Act, 1948 ("the Act" for short) and after giving an opportunity, the Mamlatdar and Agricultural Lands Tribunal, Vagra vide his order dated 9.4.2008 decided to vest the land free from all encumbrances in favour of the Government as in his view, mutation entry Nos.4709, 4710 and 4721 have been mutated in breach of the provisions of the Act.
3.3 The petitioners have challenged the said order dated 9.4.2008 passed by the Mamlatdar and Agricultural Lands Tribunal in Case No.1 of 2008 in appeal before the Deputy Collector, Bharuch in Tenancy Appeal No.2 of 2008. The Deputy Collector vide his order dated 1.11.2008 had set aside the order dated 9.4.2008 and remanded the matter to the Mamlatdar for fresh consideration. 3.4 The legal heir of Raysang Ramsang i.e. respondent Nos.2/1 to 2/5 had challenged the order dated 1.11.2008 passed by the Deputy Page 7 of 17 C/SCA/7469/1999 CAV JUDGMENT Collector before the Gujarat Revenue Tribunal, Ahmedabad vide Revision Application No.17 of 2009. The Tribunal vide its order dated 3.2.2009 clarified that there was no order for initiating the proceedings under section 84-C of the Act. The Tribunal directed the Mamlatdar and Agricultural Lands Tribunal to complete the proceedings as directed by the Additional Chief Secretary (Appeals) within three months and send the report to the High Court.
3.5 Thereafter, the Mamlatdar and Agricultural Lands Tribunal prepared the report dated 5.9.2009 and forwarded to this court. Copy of the said report dated 5.9.2009 of the Mamlatdar and Agricultural Lands Tribunal in Tenancy Appeal No.26 of 2009 is at Annexure-N - page 41-HH.
3.6 Learned advocate for the petitioners has submitted that necessary documents to establish that petitioner No.1 was an agriculturist at the Page 8 of 17 C/SCA/7469/1999 CAV JUDGMENT relevant time before the Mamlatdar and Agricultural Lands Tribunal, reliance was placed on mutation entry no.3438 dated 19.6.1971 which shows that names of petitioner No.1 and Ibrahim Vali were entered as legal heirs of Vali Ibrahim Umar on his death on 31.10.1970 in Survey Nos.187/2, 16/3, 223/1, 199/5, 170/1 and 29/5 of village Jhangar, Taluka - District Bharuch. Moreover, as mentioned in mutation entry No.4623 dated 2.5.2004, it appears that petitioner No.1 relinquished his right over the land bearing Survey Nos.56, 125, 713, 752 and 852 in favour of his brother Ibrahim Vali as per the family arrangement which has arrived at, at the relevant point of time. Learned advocate for the petitioners has then submitted that now it is clear that petitioner No.1 was agriculturist when he purchased the land bearing Survey No.48-A from Raziyaben Adam Vali - respondent No.3/2 herein for which mutation entry No.1721 was mutated. Moreover, when the petitioners purchased the said land, sale of said land by Raysang Ramsang in Page 9 of 17 C/SCA/7469/1999 CAV JUDGMENT favour of Raziyaben Adam Vali was recorded in the record of rights vide mutation entry No.1668 in the year 1988. Learned advocate for the petitioners has vehemently submitted that the said entry No.1688 was not brought under challenge in revision for a period of almost four years prior to the date on which the petitioners purchased the land in question. It is also submitted by learned advocate for the petitioners that notice came to be issued seeking revision of mutation entry for the first time on 6.12.1993 and as the petitioners have validly purchased the land as agriculturists, there has not been any violation and the entry requires no interference much less at the instance of respondent No.2 as well as legal heirs of respondent No.2 i.e. respondent Nos.2/1 to 2/5 who have as such lost the right to challenge the mutation entry on selling the said land after pocketing the amount of sale consideration.
3.7 Learned advocate for the petitioners has Page 10 of 17 C/SCA/7469/1999 CAV JUDGMENT placed reliance on the following decisions.
(a) 2002 (3) GLH 78 (Vishnubhai Ambalal Patel Vs Shankerji Pnjjaji Thakore and Another)
(b) 2011 (3) GLR 2472 (Gulabbhai Ravjibhai Patel Vs Badriprasad Vithalrao Bende.
(c) Navuji Lalji Vaghela Vs State of Gujarat Through & 11, Judgment dated 28.4.2011 delivered in Letters Patent Appeal No.433 of 2011 in Special Civil Application No.6168 of 2010.
4. Learned advocate Mr.R.E.Variava for respondent Nos.2/1 to 2/5 and learned advocate Mr.Mahendra K.Patel for respondent Nos.3/1 and 3/2 have vehemently submitted that after the orders dated 30.9.1999 and 11.12.2007 passed by this Court as referred hereinabove, the Mamlatdar and Agricultural Lands Tribunal has passed order dated 9.4.2008 in Case No.1 of 2008 and decided to enter the land free from all encumbrances in favour of the Government as in his view, mutation entry Nos.4709, 4710 and 4721 have violated provisions of the Act and the said order was passed by Mamlatdar Shri D.M.Pandya, copy of Page 11 of 17 C/SCA/7469/1999 CAV JUDGMENT which is at Annexure-K to the petition. Then, learned advocate Mr.Variava for respondent Nos.2/1 to 2/5 has drawn attention of this Court on the order dated 5.9.2009 at Annexure-N to the petition and submitted that the same officer i.e. Mr.D.M.Pandya, Mamlatdar and Agricultural Lands Tribunal passed the second order on the same issue and surprisingly, he in his second order dated 5.9.2009 has taken quite opposite view in compared to his earlier decision dated 9.4.2008 and decided that the concerned persons entered as purchasers / cultivators by transfer of lands under mutation entry Nos.1667, 1668, 1709, 1710 and 1721 of record of rights of mouje Jolava are farmers - khatedars before the said transactions and thus, considering the fact that two contradictory decisions had been taken by one official as referred hereinabove, the second decision dated 5.9.2009 is not believable and this court should not put any reliance on the said order dated 5.9.2009 at Annexure-N to the petition. It is pertinent to note that earlier Page 12 of 17 C/SCA/7469/1999 CAV JUDGMENT order dated 9.4.2008 at Annexure-K to the petition was challenged by the petitioners herein by preferring appeal before the Deputy Collector, Bharuch being Tenancy Appeal No.2 of 2008 and the Deputy Collector vide order dated 1.11.2008 was pleased to set aside the order dated 9.4.2008 at Annexure-K to the petition and remanded the matter for fresh consideration to the said Mamlatdar. As referred above, the said decision of the Deputy Collector was challenged by the heirs of Raysangbhai - respondent Nos.2/1 to 2/5 herein before the Gujarat Revenue Tribunal and vide order dated 3.2.2009, the Tribunal has clarified that there was no order for initiating proceedings under section 84-C of the Act and directed the Mamlatdar and Agricultural Lands Tribunal to complete the proceedings within three months and send the report to the High Court. Thus, it is clear that the Mamlatdar and Agricultural Lands Tribunal, who has passed order dated 9.4.2008 in misbelief, had as such set aside by the Deputy Collector and later on Page 13 of 17 C/SCA/7469/1999 CAV JUDGMENT clarified by the Gujarat Revenue Tribunal as referred above and so, as per the direction of the Gujarat Revenue Tribunal, the order dated 30.9.1999 passed by this Court had been complied with by the Mamlatdar and Agricultural Lands Tribunal vide his order in form of report dated 5.9.2009, copy of which is at Annexure-N to the petition referred above. Under the above circumstances, it cannot be said that the same Mamlatdar and Agricultural Lands Tribunal had passed two contradictory orders on the same subject and so the same are not believable and thus, I do not find any substance and merit in the said submissions made by learned advocate Mr.Variava for respondent Nos.2/1 to 2/5. It is also equally important to note that the order in form of report dated 5.9.2009 passed by the Mamlatdar and Agricultural Lands Tribunal at Annexure-N to the petition in Tenancy Appeal No.26 of 2009 has not been challenged by the concerned respondents and thus, in my view, the said order in form of report has attained Page 14 of 17 C/SCA/7469/1999 CAV JUDGMENT finality in which it is decided by the Mamlatdar and Agricultural Lands Tribunal that the petitioners as well as respondent Nos.3/1 and 3/2 were the agriculturists when they purchased the lands from original respondent No.2 as referred above and so there appears no breach of any provision of law, more particularly, when section 2(c) of the Act has been amended by Act in 1995 and the restriction of holding land within periphery of 8 kilometers to the land in question is repealed. The Collector as well as the Special Secretary (Appeals) ought to have taken into consideration the legislative intention behind the above referred amendment and ought to have held that the said amendment was retrospective in operation and thus, in view of the amendment, the revenue entries ought not to have been set aside is the submission made by learned advocate for the petitioners and I find myself in agreement with the same because in case of Vishnubhai Ambalal Patel (supra), it has been held by this Court that the above referred amendment is Page 15 of 17 C/SCA/7469/1999 CAV JUDGMENT retrospective and proceedings on the date of amendment would be abated.
5. I have also carefully perused two decisions on which the petitioners have placed reliance i.e. (a) Gulabbhai Ravjibhai Patel (supra) and (b) Navuji Lalji Vaghela (supra). Above referred both the judgments are delivered by the Division Bench of this Court and it has been specifically held that one cannot take advantage of his own wrong. In the case on hand, so far as respondent No.2 or the legal heirs of respondent No.2 i.e. respondent Nos.2/1 to 2/5 is not permitted to say that transaction was in breach of statutory provisions of the Act after having executed the sale deed in favour of respondent No.3 and in turn, the petitioners because after the initial transaction, the said entries i.e. 1667 and 1668 were not brought under challenge in revision for a period of almost 4 years to the date on which the petitioners purchased the land in question because as such Page 16 of 17 C/SCA/7469/1999 CAV JUDGMENT they have lost the right to challenge the mutation entry on selling the said land after pocketing the amount of sale consideration.
6. For the aforesaid reasons, the present petition succeeds and accordingly, the same is allowed. The judgment and order dated 22.7.1999 bearing No.SRD/Bach/HKP-18/94 passed by the Special Secretary (Appeals), Revenue Department is hereby set aside. Rule is made absolute to the aforesaid extent. No order as to costs.
(G.B.SHAH, J.) pathan Page 17 of 17