Gujarat High Court
Kankuben J. Bharwad vs State Of Gujarat And Anr. on 25 September, 2006
Equivalent citations: AIR2007GUJ16, AIR 2007 GUJARAT 16
Author: Jayant Patel
Bench: Jayant Patel
JUDGMENT Jayant Patel, J.
Page 1925
1. The short facts of the case are, that the petitioner purchased the land admeasuring 4 Acre 23 Gunthas bearing Survey No. 584/2 at village Akrund, Taluka Bayad, Dist. Sabarkantha vide Registered Sale Deed dated 05.07.1985, which was an agricultural land and the petitioner had purchased the Page 1926 land from one Vanand Sakrabhai Punjabhai. The entry was also mutated in the revenue record based on the Sale Deed. However, the proceedings came to be initiated under Section 84(C) under the Bombay Tenancy & Agricultural Lands Act (hereinafter referred to as 'the Act') before the Mamlatdar & ALT, on the ground that it is a purchase of the land by non-agriculturist and the transaction is between the agriculturist and non-agriculturist. The proceedings were initially dropped as per order dated 06.07.1987 but thereafter in appeal, it was remanded. Thereafter, the Mamlatdar & ALT found that the father of the petitioner though agriculturist, was surviving and therefore, the petitioner had no right to have the separate land and therefore, cannot be said as an agriculturist, since she is not independently holding the land and the petitioner had married to Jivabhai Ladhabhai, who is not having any agricultural land. Ultimately, the Mamlatdar & ALT passed the order on 18.03.1988, whereby the petitioner was declared as non-agriculturist on account of the marriage with non-agriculturist and since the petitioner declared that she was not agreeable for restoration, the land was ordered to be forfeited to the State Government. It appears that the matter was carried by the petitioner before the Deputy Collector in appeal, who dismissed the appeal by confirming the order passed by the Mamlatdar as per his order dated 03.10.1988. The matter was further carried in revision before the Gujarat Revenue Tribunal and one of the Judgment delivered by this Court in Special Civil Application No. 1654 of 1979 dated 17.06.1986 was cited before the Tribunal for contending that if the woman before the marriage was an agriculturist, she does not cease to be an agriculturist after marriage and therefore, it was contended before the Tribunal that the petitioner can be said as an agriculturist and the lower authorities, i.e. Mamlatdar and ALT as well as Deputy Collector have committed error. The Tribunal distinguished the Judgment and found that as the father of the petitioner is alive and there is no question of share of applicant at present, she cannot be treated as an agriculturist and ultimately, the revision was dismissed. It may be stated that thereafter, the review application was also preferred before the Tribunal, which also came to dismissed on 07.12.1990 and it is under these circumstances, the petitioner has approached to this Court by preferring the present petition.
2. I have heard Mr. Chauhan for Mr. Mukund Desai for the petitioner and Mr. Mengdey, learned AGP for the respondent No. 1. Respondent No. 2 though served, has chosen not to appear.
3. The learned Counsel appearing for the petitioner raised the contention that the petitioner being the daughter of an agriculturist, having share in the property of her father, was entitled to be treated as an agriculturist, in view of the decision of this Court in case of Babiben Rikhavchand Doshi v. Deputy Collector, Tharad and Ors. reported at 1986 GLH 845 and copy of the said decision was also produced and the decision was cited before the Tribunal. Inspite of the same, the Tribunal has dismissed the revision.
4. Mr. Mengdey, learned AGP has supported the order passed by the Tribunal taking the view that if the father is alive, the daughter cannot be treated as an agriculturist.
Page 1927
5. As such, in view of the decision of this Court in case of Babiben Rikhavchand Doshi(supra), the issue is settled on the said aspects. This Court in the said decision at para 7, has observed as under:
In the instant case, the evidence of the petitioner-wife was to the effect that she was being ill-treated by the opponent and other family members of the opponent, namely the sister and paternal aunt of the opponent. Right from the beginning, consistently it was the allegation of the petitioner that the paternal aunt and the sister of the opponent were ill-treating her and she was being treated in house as a maid-servant. It is an admitted position that in the house of the opponent, his sister Hansaba did stay together. As far as the paternal aunt of the opponent is concerned, this aspect appears to have been amply proved. In spite of the specific allegations made by the petitioner-wife in her application as well as in her deposition, both the courts below failed to take into consideration the vital fact and circumstance that the opponent-husband had not examined his paternal aunt and/or his sister. The courts below which were eager to draw adverse inference against the petitioner, did not even take into consideration the fact that the opponent had not made any attempt at all to examine his paternal aunt and his sister. As far as the petitioner was concerned, the doctor and Ranjitsinh were not her family members. They were not under her control or were not easily available to her. But, so far as the opponent is concerned, his paternal aunt and his sister were very much there in his own house. AT least his sister could have been examined, if not his paternal aunt. There is no explanation whatsoever why they have not examined to controvert the allegation made by the petitioner. In absence of this evidence, the petitioner's case has got to be believed.
6. If the facts of the present case are examined in light of the above observations of this Court, it appears that it is an admitted position that the petitioner is the daughter of an agriculturist Bharwad Hathabhai Kamabhai. It is also an admitted position that Bharwad Hathabhai Kamabhai, was an agriculturist holding the agricultural land in the same village Akrand. Therefore, it cannot be said that the petitioner was not legal heir to inherit the land in question held by her father Bharwad Hathabhai Kamabhai, who was admittedly an agriculturist on the date when the transaction took place. Merely because the petitioner has married to a non-agriculturist, would not result into abolition of her status as an agriculturist. Therefore, all the Authorities have proceeded on the wrong basis that once a Hindu female has married to a non-agriculturist, she looses her status as an agriculturist as per the provisions of the Act. Even before the Tribunal, though the Judgment was relied upon and the copy of the said Judgment was also produced, the Tribunal has instead of following the Judgment, distinguished the Judgment by observing that in the said case the interest of the land was being looked after by the brothers of the family. In the present case, the interest was being looked after by the father of the petitioner. Such a distinction in my view was not required to be made Page 1928 since the position would be the same if brothers are to look after the land of the Hindu female, who has married to a non-agriculturist or the father is to look after the land of the Hindu female, if she has married to a non-agriculturist. The crucial aspect, which was required to be considered by the Tribunal was whether the petitioner could be said to have lawful interest in the agricultural land held by the father or not and if the answer is in affirmative, she continues to retain the status of an agriculturist, even if her marriage has taken place. Even after the marriage, such status as daughter of an agriculturist and thereby agriculturist, as per the provisions of the Act would remain unaltered. Under these circumstances, it appears that all the authorities including the Tribunal have committed ex facie error on the face of the record and the Judgment of the lower authorities cannot be sustained in view of the decision of this Court in case of Babiben Rikhavchand Doshi(supra).
7. Hence, the Judgment of the Mamlatdar and ALT, its confirmation thereof by the Deputy Collector and further confirmation by the Revenue Tribunal are quashed and set aside with the observations that the petitioner could be termed as an agriculturist, entitled to purchase the agricultural land as per the provisions of the Act and the transaction in question was between an agriculturist and agriculturist and therefore, the proceedings under Section 84(C) were required to be dropped. The petition is allowed to the aforesaid extent. Rule made absolute accordingly. Considering the facts and circumstances, there shall be no order as to costs.