Gujarat High Court
State Of Gujarat & 2 vs Maganbhai V Desai & 13 on 23 September, 2014
Bench: Vijay Manohar Sahai, R.P.Dholaria
C/LPA/1103/2014 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1103 of 2014
In SPECIAL CIVIL APPLICATION NO. 3595 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
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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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STATE OF GUJARAT & 2....Appellant(s)
Versus
MAGANBHAI V DESAI & 13....Respondent(s)
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Appearance:
MR KASHYAP PUJARA, AGP for the Appellant(s) No. 1 3
MR JM PATEL, ADVOCATE WITH MR AB MUNSHI, ADVOCATE for the
Respondent(s) No. 1 3.4 , 4 5.2 , 6 6.2 , 7 12
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CORAM: HONOURABLE MR.JUSTICE VIJAY MANOHAR SAHAI
and
HONOURABLE MR.JUSTICE R.P.DHOLARIA
Date : 23/09/2014
ORAL JUDGMENT
Page 1 of 9
C/LPA/1103/2014 JUDGMENT (PER : HONOURABLE MR.JUSTICE R.P.DHOLARIA)
1. This appeal under Clause 15 of the Letters Patent is directed against the judgment dated 25.07.2013 passed by the learned Single Judge in Special Civil Application No.3595 of 2013, whereby the learned Single Judge allowed the petition filed by the respondent Nos. 1 to 12 herein.
2. As a question of law is involved, with the consent of the learned advocates for both the parties, the present appeal is taken up for final hearing today.
3. The short facts of the case are that agricultural land bearing survey No.27/1, admeasuring Hectares 1218 situated in the sim of village Ved, taluka Choryasi, District: Surat, was included in the Town Planning Scheme and has been given Final Plot No.26 which is owned by respondents No. 3 to 14 herein original petitioners No.3 to 12 and original respondents No. 4 and 5.
3.1. The ancestor of respondent Nos. 3 to 14 herein viz. Becharbhai Ichchhabhai was the tenant of the subject land and one Dinbai Maherbanji Hakim was the owner of the subject land. The name of Becharbhai Ichchhabhai was reflected in the revenue record since 1928 29 in the second rights column, and the names of the respondents No. 3 to 12 - original petitioners No. 3 to 12 and respondents No. 13 and 14 - original respondents No.4 and 5 (original tenants) were also entered in the revenue record vide Mutation Entry No.348 dated 15.12.1947. After the death of Becharbhai Ichchhabhai (the original tenant), the names of his widow Deviben and other heirs were entered in the revenue record. Accordingly, Deviben's name continued to be shown in the second rights column as tenant.
Page 2 of 9C/LPA/1103/2014 JUDGMENT 3.2. Thereafter, Mutation Entry No.640 came to be made on 11.2.1964 on the basis of an order dated 21.10.1961 made by the Prant Officer in Tenancy Case No.12 of 1970, whereby the name of Keshavbhai, elder son of Becharbhai, came to be entered in the record of rights and the name of Deviben came to be deleted. Thereafter, by way of Mutation Entry No.698, along with name of Keshav Becharji, the names of Soma Becharjii and Chhotu Becharjii were also entered in the revenue record as they were sons of deceased Becharji Ichchhabhai. Subsequently, proceedings under section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Act for short) came to be initiated by the Mamlatdar and Agricultural Lands Tribunal (hereinafter referred to as the Mamlatdar & ALT), and the purchase price came to be fixed in favour of the deceased tenant in the year 196667. The purchase price was paid by the tenants and a certificate under section 32M of the Act also came to be issued in favour of the heirs of the original tenant, pursuant to which, Mutation Entry No.1080 came to be made on 2.6.1999. Since there were circulars of the Government dated 18.06.1996 and 18.09.1997 for deciding the status of a permanent tenant, the respondent Nos. 3 to 14 - original petitioners No. 3 to 12 and original respondents No.4 and 5 made an application before the Mamlatdar and A.L.T under section 70(o) of the Tenancy Act. It appears that after making such application, since the Mamlatdar has not taken any decision, the original petitioners filed a writ petition before this court being Special Civil Application No.7329 of 2008, which came to be disposed of vide judgment and order dated 13.05.2008, whereby the Mamlatdar and A.L.T was directed to register the application of the original petitioners under section 70(o) of the Act and, thereafter, to decide the same in accordance with law as expeditiously as possible, but not later than eight months from the date of receipt of the said order. Despite specific directions issued by this court, the said application has not been decided by the Mamlatdar till date.
Page 3 of 9C/LPA/1103/2014 JUDGMENT 3.3. It appears that one third party made an application before the Mamlatdar and ALT inter alia making allegation that the land has been transferred and the respondent Nos. 3 to 14 herein have submitted incorrect facts before the Mamlatdar and ALT. On receiving such application, the Mamlatdar and ALT initiated proceedings under Section 84C of the Act.
3.4. As the land in question is included in the Town Planning Scheme and it has been given final plot and as it falls in the residential zone, all the heirs of original tenant Becharbhai Ichchhabhai had executed an agreement to sale dated 19.08.2004 in favour of the respondent Nos. 1 and 2 herein - original petitioner Nos. 1 and 2 for the land in question bearing survey No.27/1.
3.5. Since there is no progress in the proceedings under section 70(o) of the Tenancy Act, and the subject land has been included in the Town Planning Scheme and cannot be used for agricultural purposes, the respondent Nos. 1 to 12 herein filed a writ petition being Special Civil Application No.3595 of 2013 inter alia praying to direct the competent authority under the Act for fixing the premium in respect of the subject land and also to permit the respondent Nos. 3 to 14 herein - original petitioner Nos. 3 to 12 and original respondent Nos. 4 and 5 being the heirs and legal representatives of original tenant to execute a registered sale deed in favour of respondents No. 1 and 2 herein - original petitioners No.1 and 2 for the subject land.
4. We have heard Mr. Kashyap Pujara, learned Assistant Government Pleader for the appellant and Mr. JM Patel with Mr. AB Munshi, learned advocate for respondent Nos. 1 to 12.
5. Relying upon the aforesaid peculiar facts and circumstances, Mr. Page 4 of 9 C/LPA/1103/2014 JUDGMENT Kashyap Pujara, learned Assistant Government Pleader has argued that whenever the land in question was of a nature of restrictive tenure/New Tenure land, an agreement to sale could not have been executed by the tenant. He has also submitted that the respondent Nos.1 and 2 have entered into an agreement to sell in respect of the subject land with respondent Nos. 3 to 14, which is in breach of the provisions of section 43 of the Tenancy Act. It is also submitted that the proceedings under Section 84C of the Act is pending before the Mamlatdar and ALT and if in those proceedings an order against the respondent Nos. 1 to 14 is passed, the subject land would be vested in the State Government and therefore, the question of payment of premium would not arise. In that view of the matter, the learned Single Judge could not have directed the appellant to fix the premium of the land in question.
6. Against the aforesaid arguments, Mr. JM Patel, learned advocate with Mr. AB Munshi, learned advocate for respondent Nos. 1 to 12 has submitted that the learned Single Judge has strike the balance by holding the original petitioners entitled to make an application before the State Authority for fixing the premium in respect of the subject land within a time frame since the State Authority will not have to suffer any loss because the respondents herein are ready and willing to pay the premium in respect of the subject land as per the prevailing policy of the State Government treating the subject land as new tenure by not pressing the application preferred by the respondents under the provisions of Section 70(o) of the Act. It is also submitted by Mr. Patel that the Mamlatdar & ALT was duty bound to first decide the application filed by the present respondents under Section 70(o) of the Act in prior point of time complying with the directions issued by the learned Single Judge of this Court vide judgment and order dated 13.05.2008 in Special Civil Application No. 7329 of 2008. If such application was decided and allowed, the question of breach of the provisions of Section Page 5 of 9 C/LPA/1103/2014 JUDGMENT 43 of the Act would not arise. It is also submitted by Mr. Patel that the appellant revenue authority cannot sit tight over the application under Section 70(o) and then contend that in view of the pendency of the proceedings under Section 84C of the Act, premium in respect of the subject land cannot be determined. Mr. Patel further submitted that on account of the stand taken by the revenue authority of not allowing the respondents herein to develop their lands for indefinite period may cause great hardship to the respondents herein. Hence, the appeal may be dismissed with cost.
7. In view of the aforesaid factual scenario as well as rival submissions made by the learned advocates for both the parties, now the only question which arises for our consideration is as to whether the direction issued by the learned Single Judge is in accordance with the provisions of the Act or not?
8. We have perused the entire material made available to us as well as the proceedings initiated before the various revenue authorities and various orders passed by the competent authority as well as the impugned judgment rendered by the learned Single Judge and the provisions of the Act including Section 70A, which came to be inserted by way of the Gujarat Tenancy and Agricultural Lands (Amendment) Act, 2014.
9. On examination of the record of present appeal, it clearly reveals that respondent Nos. 3 to 14 are the heirs and legal representatives of one Mr. Becharbhai Ichchhabhai, who was permanent tenant as he was tenant since 19281929 i.e. prior to tillers day i.e. 1 st April 1957. However, Indisputably, it also reveals from the record that the names of heirs of the deceased Mr. Becharbhai Ichchhabhai came to be mutated in the revenue record and thereafter they moved an application for removal Page 6 of 9 C/LPA/1103/2014 JUDGMENT of the restrictive tenure of the aforesaid land. However, the said proceeding is still pending before the Mamlatdar and ALT. It appears from the operative part of the impugned order that the respondents herein have not pressed that application preferred under Section 70(o) of the Act and showing their willingness to pay the premium on the subject land treating it to be of new tenure land.
10. Now, to deal with the contention raised by the learned Assistant Government Pleader for the appellant that the proceedings under Section 84C of the Act is pending before the Mamlatdar and ALT and if an order against the respondent Nos. 1 to 14 herein is passed in those proceedings, the subject land would be vested in the State Government and the question of payment of premium would not arise and therefore the learned Single Judge ought not to have directed the State Authority to fix the premium of the subject land, we are of the opinion that the learned Single Judge has clearly and categorically dealt with this issue in para 15 of impugned judgment.
11. Now, so far as the contention raised by Mr. Pujara, learned Assistant Government Pleader for the appellant that the respondent Nos. 3 to 14 entered into an agreement to sale with respondent Nos. 1 and 2 in breach of Section 43 of the Act is concerned, we are of the opinion that the learned Single Judge has not committed any error while directing the appellant herein to fix the premium on the subject land as per the existing policy of the State Government and in accordance with law by treating the subject land to be that of new tenure and the State Authority will not have to suffer any loss.
12. The Government has inserted Section 70A of the Act by way of the Gujarat Tenancy and Agricultural Lands (Amendment) Act, 2014. The said Section 70A reads thus:
Page 7 of 9C/LPA/1103/2014 JUDGMENT "70A. In case where a person is or was declared as a permanent tenant under section 70 by the Mamlatdar and Agricultural Lands Tribunal and subsequently on the basis of such order sale or more than one sale in respect of the land in question has taken place and if thereafter the order declaring a person as the permanent tenant is found not in accordance with law, then, the Collector, on an application made by the present occupant in this regard, shall, subject to other provisions of this Act or any other law for the time being in force, proceed to impose the restrictions of section 43 of this Act in respect of such land and shall, after levying rupee one as the penalty and in consideration of payment of such amount as may be determined by the State Government by general or special order from time to time, pass an order regularising such sale, subject to such conditions as may be specified by him."
13. In view of the aforesaid clearcut provisions of Section 70A, it clearly indicates that now the question as to whether the Mamlatdar has any power to remove the restriction or not has become irrelevant and even if the Mamlatdar has exercised the power of conversion of land from New Tenure to Old Tenure and thereafter if the transaction of sale has been taken place, the power to regularize such sale by levying rupee one as the penalty and in consideration of payment of such amount as may be determined by the State Government, is vested with the Collector in view of provisions of Section 70A.
14. In view of the above discussion, in our opinion, the learned Single Judge has not committed any error while directing the appellant herein to fix the premium of the subject land by treating the subject land as that of new tenure within a time frame. It appears that the State Government by way of amendment, inserted Section 70A in the Act, which makes it abundantly clear that the direction issued by the learned Single Judge is Page 8 of 9 C/LPA/1103/2014 JUDGMENT in accordance with law and in accordance with the provisions of Section 70A of the Act. Furthermore, it is also submitted by Mr. Patel, learned advocate for the respondents that the State Government has already fixed the premium, which is required to be paid by the respondents.
15. In view of the aforesaid factual as well as legal provisions, the order passed by the learned Single Judge is in accordance with law, which does not call for any interference by this Court. Therefore, the appeal lacks merit and deserves to be dismissed. However, the interest of justice demands that the order of learned Single Judge shall be complied with by the State Government and the Government shall fix the premium in accordance with the policy of the Government and the necessary challan be issued by the appellant to the respondents so that they may deposit the amount of premium within the statutory period of 21 days from issuance of challan. Demand note along with necessary challan shall be issued by the State Government within a period of six weeks from today.
With the aforesaid direction, the appeal stands finally disposed of.
(V.M.SAHAI, J.) (R.P.DHOLARIA,J.) Jani Page 9 of 9