Gujarat High Court
Ahemadbhai Ibrahimbhai Patel vs State Of Gujarat on 28 October, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/10487/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 10487 of 2020
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AHEMADBHAI IBRAHIMBHAI PATEL
Versus
STATE OF GUJARAT
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Appearance:
MR JIGAR P RAVAL(2008) for the Petitioner(s) No. 1
MR ROHAN SHAH, AGP for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3,4,5
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 28/10/2020
ORAL ORDER
1. Heard learned advocate Mr. Jigar Raval for the petitioner and learned Assistant Government Pleader Mr. Rohan Shah for the respondents- State through video conference.
2. Issue Rule returnable forthwith. Learned Assistant Government Pleader Mr. Rohan Shah waives service of notice of rule on behalf of the respondents-State.
3. Considering the controversy arising in the Page 1 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER petition which is in narrow compass, with the consent of the learned advocates appearing for the respective parties, the matter is taken up for hearing today.
4. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for the following reliefs:
"(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to issue an appropriate writ, order or direction for quashing and setting aside the impugned order Annexure-F passed by the Ld. Special Secretary, Revenue Department in Revision Application No. MVV/HKP/VDD/89/2018 dated 1/2/2020 and be further pleased to direct the respondent authorities to certify the entry no.3762 regarding the mutation of the name of the present petitioner in the revenue record of the said land.
(C) Pending hearing and till final disposal of this petition, Your Lordships may be pleased to stay the implementation, execution and operation of the impugned order Annexure-F passed by the Ld. Special Secretary, Revenue Department in Revision Application No. MVV/HKP/VDD/89/2018 dated 1/2/2020 and be further direct the Page 2 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER respondents to maintain the status quo qua the said land i.e. land bearing block no. 185 (Old Survey NO. 138 admeasuring 7386 sq. mtrs.
of village Dhaniyavi, Tal. & Dist. Vadodara.
(D) Any other relief deemed just and proper may please be granted in the interest of justice."
5. The brief facts of the case are as under:
5.1 One Khodabhai Narsinhbhai Harijan was the original owner of the land bearing block no.
185 (Old Survey NO. 138 admeasuring 7386 sq. mtrs. of village Dhaniyavi, Tal. & Dist.
Vadodara. The said original owner executed a WILL dated 30/4/2003 in favour of the present petitioner regarding the said land. The original owner expired on 20/1/2004.
5.2 Thereafter the present petitioner applied for probate certificate regarding the said WILL by filing Probate Application No.137/12. Civil Court, Vadodara by order dated 4/9/13, granted the probate in favour of the present petitioner.
Page 3 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER5.3 On the basis of the WILL of the original owner and on the basis of probate certificate, the present petitioner filed an application before Mamlatdar, Vadodara on or about 16/12/2014 for mutation of the name as owner of the said land in the revenue record. Entry no.3762 was mutated in the revenue record. The Circle Officer, Vadodara, cancelled the said entry on 30/3/15 mainly on the ground that the said land is a new tenure land and the petitioner has not produced any order regarding the sale and other papers.
5.4 Against the order of circle Officer, Vadodara, the petitioner preferred RTS Appeal No.332/15 before the Deputy Collector, Vadodara.
The Deputy Collector, Vadodara by order dated 30/3/16, rejected the appeal of the petitioner.
5.5 The petitioner thereafter preferred revision no. RTS/RA/90/17 along with the delay condonation Page 4 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER application. The Collector, Vadodara by judgment and order dated 19/12/17, rejected the revision of the present petitioner.
5.6 The petitioner thereafter preferred Revision Application No. MVV/HKP/VDD/89/18 before the respondent no.2 before the Special Secretary, Revenue Department who by order dated 1/2/2020, rejected the revision of the petitioner.
5.7 Being aggrieved by the said order, the petitioner has preferred the present petition.
6.1. Learned advocate Mr. Raval appearing for the petitioner submitted that the facts of the case of the petitioner are identical with the facts before this Court in case of Raghuvirsinh Sardarsinh Saluja Legal Heirs v. Special Secretary (Appeals) reported in 2019 JX (Guj) 966, wherein, this Court (Coram: Hon'ble Mr. Justice Biren Vaishnav) has held that only the Mamlatdar is empowered to determine the status of Page 5 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER the person as to whether he is an agriculturist or not. It is not open for the Collector to hold that the transfer was in breach of Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short 'the Act, 1948') because bequeath by will cannot be termed as a transfer and even a probate is not necessary. He therefore submitted that both the authorities below have committed any error in holding against the petitioner.
6.2. Mr. Raval further submitted that in spite of the fact that judgment of this Court was shown to the respondent no.2, but the same was not even referred to in the impugned order and therefore, the impugned order passed by the Secretary is contrary to the law laid down by this Court in the facts of the case. Learned advocate submitted that he has also cited the decision in the case of Rajenbhai Baldevbhai Shah v. Baijiben Kabhabhai Patanvadia & Ors. 2009 (2) GLH 1784 before the authorities below.
Page 6 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER6.3. Mr. Raval submitted that it was incumbent upon the respondent authorities to follow the decisions rendered by this Court, as the decision of this Court is binding upon the authorities. He relied upon the decision in the case of Air Conditioning Specialists Pvt. Ltd.
Versus Union of India and others reported in 1996(2) GLR 448, in support of his submissions.
7. On the other hand, learned Assistant Government Pleader Mr. Rohan Shah vehemently opposed the contentions raised by the petitioner and reiterated what is stated by the authorities below relying upon the averments made in the affidavit-in-reply filed on behalf of the respondents, as under:
"7. It is submitted that the whole dispute is regarding for certifying mutation entry on the basis of a Will dated 30.04.2003 in favor of the present petitioner in revenue records. Further, learned Civil Court, Vadodara by an order dated 04.09.2013 granted the probate in favor of the present petitioner. Thereafter, on the basis of the said Page 7 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER Will and probate certificate, the present petitioner has moved an application before the Mamlatdar, Vadodara on 16.12.2014 for mutation of the name as an owner of the land in question and thus entry No. 3762 was mutated in the revenue record. However, Circle Officer, Vadodara cancelled the mutation entry on the ground that the said land is new tenure and the petitioner has not produced any order regarding the sale on 30.03.2015 and by will the land cannot be transferred. Staring from the Circle Officer till SSRD, the authority had taken the same stand and hence, the present petition is filed against the impugned order dated 01.02.2020. Whereby, the application of the petitioner came to be rejected.
8. It is submitted that it is not in dispute that the land in question is of new tenure land, and as per the Government Resolution No. NSJ- 102006-571-J (Part - 2) dated 04.07.2008, any person who desire to transfer the land, needs to take prior permission from the authority.
9. In the present case, the land in question is of new tenure and hence, the premium needs to be paid before transferring the land , however, in the present case no premium has been paid and on the basis of a Will/ Probate certificate, the petitioner wanted to enter his name in the revenue records. The copy of the Government Resolution dated 04.07.2018 is annexed herewith and marked as ANNEXURE R. 1.
Page 8 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER10. Considering the same, the petition does not require any interference and required to be dismissed in the interest of justice."
8. Having considered the rival submissions and having gone through the facts and materials available on record, it is not in dispute that the facts of the present case are identical to the facts of the case before the coordinate Bench in case of Raghuvirsinh Saluja (supra), wherein, it is held as under:
"13. Having considered the submissions of the learned advocates for the respective parties, what needs to be seen is that the respondent no.5's father made two wills; one on 15.03.1982 bequeathing a part of land of Block No.829 paiki in favour of legal heirs of Raghuvirsinh Sardarsinh Saluja-the father of the petitioners and separate Will of 05.06.1990 also, which is the subject matter of the present petition. Parcel of the land was also bequeathed by a Will of 05.06.1990.
14. After filing of an appropriate application for a probate, the Civil Court by an order of 01.09.1997 granted a probate in favour of the petitioner's father. Perusal of the Sammati Patrak would indicate that the respondent Page 9 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER nos.5 and 6 after having participated in the probate proceedings conceded to the execution of Will in favour of Raghuvirsinh Sardarsinh Saluja. The probate was issued in such circumstances. Much is emphasized by the Deputy Collector in his order dated 30.08.2011, by which, he has observed that when the probate specifically had a condition that certificate shall come into effect only after obtaining necessary permission of the Collector and when such permission was not obtained, the transfer was bad. In my opinion, the Deputy Collector lost sight of the position of law as decided by the Supreme Court in the decision in case of Mahadeo (supra). In the case of Mahadeo (supra), the Hon'ble Supreme Court has clearly observed that though a transfer without a previous sanction of a Collector is permissible, such a qualification shall apply only when the transfer is by way of a sale, gift, exchange, mortgage, lease or an assignment. Devolution of property by way of a will does not amount to transfer of property. The relevant paras of this judgment read as under:
"[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 & Anr. v. Kailash Chandra Kapur & Ors., 1997 2 SCC 387, devolution of Page 10 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER 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.
[8] That the beneficiary of a Will receives the property by way of devolution and not by way of transfer is also made clear by the decision of this Court in S. Rathinam alias Kuppamuthu & Ors. v. L.S. Mariappan & Ors., 2007 6 SCC 724 wherein this Court has held in para 21 that a testator by his Will, may make any disposition of his property subject to the condition that the same should not be inconsistent with the laws or contrary to the policy of the State. The Will of a man is the aggregate of his testamentary intentions so far as they are manifested in writing. It is not a transfer but a mode of devolution. In coming to this conclusion, this Court referred to Beru Ram and Others v. Shankar Dass and Others, 1999 AIR(J&K) 55."
15. This Court in the decision in case of Ashokkumar Maneklal Patel (supra) also considering the decision of Mahadeo (supra) and on exhaustive appreciation of Section 43 of the Bombay Tenancy Act, has held as under:
Page 11 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER"10. I have heard learned advocates appearing for the respective parties and perused the impugned orders. It is an undisputed fact that the State Authorities themselves have accepted the status of the petitioner being an agriculturist and, therefore the question to be dealt with in the present petition is only with regard to applicability of Tenancy Act. Section 43 of the Tenancy Act reads as under :-
"43. Restriction on transfers of land purchased or sold under this Act :-
(1) No l)and or any interest therein purchased by a tenant under Section 17B, 32, 32F, 32-I, 32- O, 32U, 43-ID or 88E or sold to any person under Section 32P or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount a the State Government may by general or special order determine; and no such land or any interest, there shall be partitioned without the previous sanction of the Collector.
[Provided that no previous sanction of the Collector shall be required, if the partition of the land is among the members of the family who Page 12 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER have direct blood relation or among the legal heirs of the tenant;
Provided further that the partition of the land as aforesaid shall not be valid if it is made in contravention of the provisions of any other law for the time being in force;
Provided also that such members of the family or the legal heirs shall hold the land, after the partition, on the same terms, conditions and restrictions as were applicable to such land or interest therein purchased by the tenant or the person.] (1A) ....................
(1B) ....................
(1C) ....................
(2) ...................."
11. Now, if the provisions of Section 57 of the Bombay Tenancy and Agricultural Lands Act (as applicable to Vidarbha Region) is concerned, similar provisions are made with regard to the said region. The Hon ble Supreme Court in the case of Mahadeo (Dead through Legal Representatives) v.
Shakuntalabai (Supra) has categorically held that the Will Page 13 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER cannot be treated as a transfer as defined under Section 57 of the said Act.
12. I have gone through Section 43 of the Tenancy Act as well as Section 57 of the Bombay Tenancy and Agricultural Lands Act (as applicable to Vidarbha Region) and I find that both the provisions are pari materia and, therefore, the principles laid down by the Hon ble Supreme Court in the case of Mahadeo (Dead through Legal Representatives) v. Shakuntalabai (Supra) would be applicable in the present case. Hence, the present petition requires consideration and hence, the same is allowed. The order dated 18.5.2018 passed by Secretary, Revenue Department (Appeals), Ahmedabad in Revision Application No.6 of 2018, order dated 30.10.2017 passed by the District Collector, Ahmedabad in Revision Case No.559 of 2016, order dated 24.6.2016 passed by the Deputy Collector, Sanand Prant, Sanand as well as order dated 14.8.2015 passed by the Mamlatdar & ALT, Sanand are hereby quashed and set aside. Rule is made absolute. The Mamlatdar, Sanand shall take appropriate action in the matter."
16. Obviously therefore in view of the law discussed herein above, the order of the Deputy Collector suffered from an infirmity inasmuch as, not only it was not open for him to hold that the transfer was in breach of Section 63 because bequeathment by Will cannot be Page 14 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER termed as a transfer, but even a probate was not necessary and therefore reliance on a condition in the probate was misconceived.
17. Even otherwise, as held by this Court in the case of Ratilal Maganlal Intwala (supra) in the RTS proceedings, it is not open for the Collector to consider whether a person is an agriculturist or non-agriculturist. Such a question can only be determined under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. It will be worthwhile to reproduce paras 14 to 16 of the decision which reads as under:
"[14] Learned advocate for the petitioners has further argued that in R.T.S proceedings, the Collector was not authorized to issue the notice calling upon the petitioners for alleged breach of the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 and Hindu Succession Act. On this point, learned advocate for the petitioners has drawn the attention of this Court to the provisions of Sections 2(2), 2(6), 63, 84(C) of the Bombay Tenancy and Agricultural Lands Act and Rule 36(1)(f) of the Bombay Tenancy and Agricultural Lands Rules which read as under:-
"2(2) "agriculturist" means a person who cultivates land personally;Page 15 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER
xxxx 2(6) "to cultivate personally"
means to cultivate land on one s own account -
(i) by one s own labour, or
(ii) by the labour of any member of one s family, or under the personal supervision
(iii) of oneself any member of one s family by hired labour or by servants on wages payable in cash or kind but not in crop share, being land, the entire area of which -
(a) is situate within the limits of a single village, or
(b) is so situated that no price of land is separated from another by a distance of more than five miles, or
(c) forms one compact block;
xxxxx xxxxx Page 16 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER
63. Transfers to non-agriculturists barred (1) Save as provided in this Act, -
(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 mortgagee, 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 Page 17 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER 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.] (2) Nothing in this section shall be deemed to [prohibit the sale, gift, exchange or lease, or the agreement for the sale, gift, exchange or lease, of] a dwelling house or the site thereof for any land appurtenant to it in favour of an agricultural labourer or an artisan [or a person carrying on any allied pursuit].
(3) Nothing in this section shall apply or be deemed to have applied to a mortgage of any land or interest therein effected in favour of a co-operative society as security for the loan advanced by such society [or any transfer declared to be a mortgage by a court under section 24 of the Bombay Agricultural Debtors Relief Act,1947] (4) Nothing in section 63A shall apply to any sale made under sub-
section(1).
Xxxx xxxx Page 18 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER 84C.Disposal of land, transfer or acquisition of which is invalid._ Where in respect of the transfer or acquisition of any land made on or after the commencement of the amending Act, 1955, the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is or becomes invalid under any of the provisions of this Act, the Mamlatdar shall issue a notice and hold an inquiry as provided for in section 84B and decide whether the transfer or acquisition is or is not invalid.
Xxxxx
36.Conditions on which permission for sale etc. of land under section 63 may be granted. (1) The Collector or officer authorised under the proviso to sub-section (1) of section 63 shall not grant permission for sale, gift, exchange, lease or mortgage of any land in favour of a person who is not either an agriculturist or an agricultural labourer or who, being an agriculturist, cultivates personally land not less than the ceiling area whether as owner or tenant or partly as owner and partly as tenant unless any of the following conditions are satisfied:-
(a) xxxxxx Page 19 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER
(b) xxxxxx
(c) xxxxxx
(d) xxxxxx
(f) the land is required for cultivating it personally by a person, who, not being an agriculturist, intends to take to the profession of agriculture and to whom the Collector after having regard to the order of priority mentioned in clause (c) of sub-
section (2) of section 32P, has given a certificate that such person intends to take to the profession of agriculture and is capable of cultivating land personally;
or xxxxxx [15] From the above provisions, it can be seen that, If any question arises as to whether a person is an agriculturist or not, such a question can only be determined under the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948. The aforesaid Act is self- sufficient in nature which provides the definition of the authority, determination of status and machinery for remedies thereof.
Page 20 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER[16] Indisputably, in the present case, the Collector raised two questions with regard to Entry No.1279.
The first question as to whether the petitioners are agriculturists or not and the second question is with regard to the petitioners acquiring right of inheritance under the provisions of Hindu Succession Act, 1956? Examining the first question, in view of the provisions contained in the Bombay Tenancy and Agricultural Lands Act, 1948; only the Mamlatdar is empowered to determine the status of a person as to whether he is an agriculturist or not. That question cannot be decided by revenue authorities in R.T.S. Proceedings. Even otherwise, revenue laws do not authorise him to do so in absence of any such provision. Although, the Collector is head of the Revenue District, this position does not authorise him to usurp the power of Mamlatdar and decide the said issue. Now coming to the second question as to whether the petitioners are having right of inheritance in the agricultural land or not, that question also the Collector is not empowered to decide. As and when there is a dispute regarding the right of inheritance that can only be decided by the competent civil court."
18. Obviously, therefore, the Authorities while considering the question of mutation entry, could not have gone into the issue of violation Page 21 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER of provisions of Section 63 without holding an appropriate inquiry under the Bombay Tenancy Act.
19. On the conduct of the respondent nos.5 and 6 also when they had on their own consented to the issuance of a probate though not required, their case was clearly barred by estoppel. Even otherwise, in view of the decision of this Court in case of Rajeshbhai Vithalbhai Patel (supra) and in case of Pushpaben Balwantrai (supra), the Deputy Collector could not have entertained the appeal on merits without considering the aspect of the delay of eight years which remained unexplained at the ends of respondent nos.5 and 6. The orders of the Deputy Collector therefore was clearly contrary to the law.
20. So far as the Revision before the Collector and the Special Secretary is concerned, the reasonings by the Authorities would indicate that in relation to the breach canvassed and exhibited by the authorities, the authorities have gone on to decide the issue which was beyond their consideration. The Authorities have considered violation of Registration Act and the Stamp Act which was certainly not within the domain of their inquiry and on this ground also, the orders deserve to be quashed and set aside.
21. For the aforesaid reasons, the order dated 28.08.2014 passed by the respondent no.1 in Revision Page 22 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER Application, the order dated 30.08.2011 passed by the Deputy Collector in RTS Appeal and the order dated 28.03.2013 passed by the District Collector in Revision Application are quashed and set aside."
9. It is also pertinent to note that the issue is also squarely covered by the decision of the Division Bench of this Court in Rajenbhai Baldevbhai Shah (supra), wherein, it is held as under:
"14. The expression `transfer' was interpreted by the Apex Court in the context of Punjab Security of Land Tenures Act, 1953. Apex Court in State of Punjab (Now Haryana) and others V/s. Amar Singh and another, AIR 1974 SC 994 held the expression `transfer' is wide enough to cover transfer by operation of law unless expressly excluded. Special exclusions to save transfer by way of inheritance and compulsory land acquisition by State have been made which would have been supererogatory had involuntary transfers automatically gone out of the pale of Section 10-A(b). Apex Court held that the triple objects of the agrarian reform projected by the Act appear to be (a) to impart security to tenure (b) to make the tiller the owner and (c) to trim large land holdings, setting sober ceiling. The Apex Court held that basic judicial approach must be to discover this soul of the law and strive to harmonize the many limbs to subserve the pervasive spirit and advance Page 23 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER the social project of the enactment. The Apex Court in Dayandeo Ganapat Jadhav V/s. Madhav Vitthal Bhaskar and others, 2005 8 SCC 340 while interpreting the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 held that the Act has been enacted with a view to protect the tenants and the provisions of the Act, therefore, must be construed in favour of a weaker class of society to ensure that the object underlying the Act is fulfilled. The Act has been described as a beneficial legislation to protect the tenants as well as the agriculturists and parties cannot be allowed to defeat the object and purpose of the Act by executing testamentary disposition. We are, therefore, of the considered view that if the agriculturist is permitted to dispose agricultural property through testamentary disposition to a non- agriculturist the same will defeat the very purpose and object of the Tenancy Act which cannot be permitted by a Court of law, therefore, we hold that decision rendered by the learned Single Judges referred above earlier, otherwise, are not correct enunciation of law and stand over-ruled. We, therefore, hold that Section 63 of the Bombay Tenancy Act also bars the transfer of agricultural land by an agriculturist to a non-agriculturist for non-agricultural purpose unless permission is obtained from the Collector or any authorised officer as provided in that Section. We are informed by the learned counsel for the petitioner that large number of agricultural lands have already been transferred through testamentary disposition to non agriculturists and are in use and if the settled position is unsettled the same will cause considerable prejudice and inconvenience to the parties. We are of Page 24 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER the view that there are matters to be considered by the learned Single Judge depending upon facts of each case and equities can be worked out accordingly, on which, we express no opinion. We are only called upon to answer the scope of Section 43 and 63 of the Tenancy Act, which we have already answered."
10. In view of the above dictum of law, the impugned orders passed by both the authorities below are contrary to the settled legal position, as the Revenue Authorities cannot arrive at a conclusion under Sections 43 and 63 of the Act, 1948 to hold that the petitioner is non-
agriculturist only on the basis of the Will and the probate produced by the petitioner because the bequeath by will cannot be termed as transfer and even the probate was also not necessary as per the provisions of the Indian Succession Act,1925, as the land is situated in Gujarat.
11. Therefore, both the authorities while considering the question of mutation entry, could not have gone into the aspect of violation of Page 25 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER Section 63 of the Act,1948 without holding the appropriate inquiry under the provisions of the Act, 1948.
12. At this juncture, it is also necessary to refer to the decision of Air Condition Specialty (supra), wherein, this Court has held as under
that the decisions of this Court are binding upon the subordinate authorities and they are bound to follow it:
"8. We may, however, add that it was not open to the second respondent (CIT) to ignore the law laid down by this Court when it was an inferior tribunal subject to the supervisory jurisdiction of this Court. It was not proper on his part not to follow binding decision of this Court on the ground that the Department had not accepted that decision and had filed an appeal and the matter was pending in the Supreme Court. It cannot be disputed and is not disputed that the second respondent is a "tribunal" subject to the supervisory jurisdiction of this Court under Art. 227 of the Constitution. Hence, he is bound to obey the law declared by this Court.
9. The apex Court of the country in no uncertain terms held that the law declared by a High Court is binding on all subordinate Courts and tribunals within Page 26 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER the territory to which it exercises jurisdiction. In Bhopal Sugar Industry vs. ITO (1960) 40 ITR 618 (SC) : AIR 1961 SC 182, the ITO (subordinate authority) refused to carry out the clear and unambiguous directions of the Tribunal (superior authority). Deprecating it, their Lordships of the Supreme Court observed:
"Such refusal is in effect a denial of justice, and is furthermore destructive of one of the basic principles in the administration of justice based as it is in this country on a hierarchy of Courts. If a subordinate tribunal refuses to carry out directions given to it by a superior tribunal in the exercise of the appellate powers, the result will be chaos in the administration of justice".
10. A direct question arose before the Hon'ble Supreme Court in East India Commercial Co. Ltd. vs. Collector of Customs AIR 1962 SC 1893. In that case, proceedings were initiated by Collector of Customs against petitioner-company on allegations that it had violated conditions of licence and illegally disposed of goods and thereby committed an offence punishable under the Customs Act. The High Court confirmed the order of acquittal passed by the trial Court holding that it cannot be said that "a condition of the licence amounted to an order under the Act" and, therefore, no offence was committed by the company. The Page 27 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER High Court also passed an order directing the seized goods to be sold and the sale proceeds to be deposited in the Court. After those proceedings, a notice was issued by the Collector on the company to show cause why the amount should (not) be confiscated and penalty should not be imposed. It was contended on behalf of the company that once the High Court decided that the breach of condition of licence could not be said to be a breach of order, the Collector had no jurisdiction to issue show-cause notice. It was submitted that the decision of a High Court on a point was binding on all subordinate Courts and inferior tribunals within its territorial jurisdiction. The notice was, therefore, liable to be quashed. The precise question before the Hon'ble Supreme Court was as to whether or not the decision rendered by a High Court would bind all subordinate Courts and inferior tribunals within its territorial jurisdiction. It was argued that there was no provision similar to Art. 141 of the Constitution making the law declared by a High Court, binding on all Courts and tribunals within its territorial jurisdiction. Considering relevant provisions of the Constitution and power of High Court, Subbarao, J. (as he then was), observed:
"This raises the question whether an administrative tribunal can ignore the law declared by the highest Court in the State and initiate proceedings in direct violation of the law so declared. Under Art. 215 every High Page 28 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER Court shall be a Court of record and shall have all the powers of such a Court including the power to punish for contempt of itself. Under Art. 226, it has a plenary power to issue orders or writs for the enforcement of the fundamental rights and for any other purpose to any person or authority, including in appropriate cases any Government within its territorial jurisdiction. Under Art. 227, it has jurisdiction over all Courts and tribunals throughout the territories in relation to which it exercises jurisdiction. It would be anomalous to suggest that a tribunal over which the High Court has superintendence can ignore the law declared by the Court, and start proceedings in direct violation of it. If a tribunal can do so, all the subordinate Courts can equally do so, for there is no specific provision, just like in the case of Supreme Court, making the law declared by the High Court binding on subordinate Courts. It is implicit in the power of supervision conferred on a superior tribunal that all the tribunals subject to its supervision should conform to the law laid down by it. Such obedience would also be conducive to their smooth working, otherwise there would be confusion in the administration of law and respect for law would irretrievably suffer. We, therefore, hold that the law declared by the highest Court in the Page 29 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER State is binding on authorities or tribunals under its superintendence and that they cannot ignore it either in initiating a proceeding or deciding on the rights involved in such a proceeding."
11. The above view has been reiterated by the Supreme Court in a number of subsequent decisions (See Padmanabha Seity vs. Papiah Seity AIR 1966 SC 1824, Kaushalya Devi vs. Land Acq. Officer, Aurangabad AIR 1984 SC 892, Bishnu Ram Bohra vs. Parag Saikia AIR 1984 SC 898).
12. In our opinion, submission of the learned counsel for the petitioner is well founded and deserves to be upheld. It is not even the case of the Department that the decision of this Court in Bharat Textiles Works (supra) has been stayed by the Hon'ble Supreme Court. Hence, so far as this Court is concerned, the point is concluded. It is settled law that unless and until decision is reversed by a superior Court, it holds the field. It also cannot be gainsaid that the second respondent is an inferior Tribunal subject to supervisory jurisdiction of this Court and this Court can exercise jurisdiction over him by invoking Art. 227 of the Constitution. In our considered view, therefore it was not open to the second respondent to ignore the decision of this Court or to refuse to follow it on a specious plea of verdict being not accepted by the Department and that matter was carried further and was pending before Page 30 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER Supreme Court.
13. In Baradakanta vs. Bhimsen Dixit AIR 1972 SC 2465, when a member of superior judicial service functioning as Commissioner of Hindu Religious Endowments, Orissa, refused to follow the decision of the High Court, contempt proceeding had been initiated against him and he was punished by the High Court. When the matter was carried by the appellant to the Supreme Court, dismissing the appeal and extending further the principle laid down in the decision of East India Commercial Co. Ltd. (supra), the Court held:
"The conduct of the appellant in not following previous decision of the High Court is calculated to create confusion in the administration of law. It will undermine respect of law laid down by the High Court and impair the constitutional authority of the High Court".
14. In this connection we may emphasise that it would indeed be appropriate to keep in mind the following observations of Lord Diplock in Casell & Co. Ltd. vs. Broome & Anr. 1972 (1) All ER 801:
"It is inevitable in a hierarchical system of Courts that there are decisions of the supreme appellate tribunal which do not attract the unanimous approval of all members of the judiciary. When I sat in the Court of Appeal I sometimes thought the House of Lords was wrong in Page 31 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER overruling me. Ever since that time there have been occasions, of which the instant appeal itself is one, when, alone or in company, I have dissented from a decision of the majority of this House. But the judicial system only works if someone is allowed to have the last word and if that last word, once spoken, is loyally accepted".
15. We are very clear and we have no doubt in our minds that when a point is concluded by a decision of this Court, all subordinate Courts and inferior tribunals within the territory of this State and subject to the supervisory jurisdiction of this Court are bound by it and must scrupulously follow the said decision in letter and spirit. Since the second respondent has not decided the matter in accordance with law laid down by this Court in the case of Bharat Textiles Works (supra), the order passed by him requires to be quashed and set aside."
13. In view of the above decision of this Court, the Revenue Authorities are bound to follow the decision of the Division Bench of this Court cited before it.
14. The respondent authorities are once again reminded about the binding effect of the Page 32 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021 C/SCA/10487/2020 ORDER decisions rendered by this Court as held by the Division Bench in the aforesaid decision of Air Conditioning Specialists Pvt. Ltd. (supra).
15. In view of the foregoing reasons, the petition succeeds and is accordingly allowed. The impugned orders dated 01.02.2020 passed by the Special Secretary Revenue Department in Revision Application No. MVV/HKP/VDD/89/2018 and order dated 19.12.2017 passed by the Collector, Vadodara in No. RTS/RA/90/2017 are hereby quashed and set aside. The consequential effect may be given accordingly.
16. Rule is made absolute to the aforesaid extent. No order as to costs. Direct Service is permitted.
(BHARGAV D. KARIA, J) PRADHYUMAN/AMAR RATHOD Page 33 of 33 Downloaded on : Sat Feb 27 13:57:15 IST 2021