Gujarat High Court
Yogeshkumar Dashrathbhai Patel vs State Of Gujarat on 24 January, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/13699/2024 JUDGMENT DATED: 24/01/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 13699 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 12355 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
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YOGESHKUMAR DASHRATHBHAI PATEL
Versus
STATE OF GUJARAT & ORS.
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Appearance:
MR SATYAM Y CHHAYA(3242) for the Petitioner(s) No. 1
ADVANCE COPY SERVED TO GOVERNMENT PLEADER/PP for the Respondent(s) No.
2,3,4
MR J K SHAH, AGP for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2,3,4
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 24/01/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Satyam Y. Chhaya for the petitioner and learned AGP Mr. J.K. Shah for the respondent-State in both the petitions.
2. Since the issue in both the petitions are co-relatable, more particularly parties to the litigation being common, with the consent of learned Advocates for the parties, the petitions are taken up for final disposal.
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3. Since to this Court it would appear that the decision in Special Civil Application No. 13699 of 2024, will have a bearing on the fate of Special Civil Application No.12355 of 2024, the former Special Civil Application is taken up first.
Order in Special Civil Application No. 13699 of 2024 :
4. By way of this petition, the petitioner challenges order dated 23.08.2024 passed by the Mamlatdar and ALT, Ghatlodiya, Ahmedabad, more particularly while rejecting application preferred by the petitioner for taking out proceeding against the petitioner under Section 63AB of the Gujarat Tenancy and Agricultural Lands Act, 1948 (for short "the Tenancy Act"), the Mamlatdar had inter alia directed that the proceedings under Section 63AD of the Tenancy Act, may be initiated against the petitioner for the land in question.
5. Learned Advocate Mr. Chhaya for the petitioner would submit that the petitioner is admittedly an agriculturist as per the Tenancy Act, and whereas, the petitioner and certain co-owners had purchased the land in question from predecessor-in-title of the petitioner one Mr. Harendra Maganlal Bhagat vide registered sale deed dated 04.08.2018. Again, the fact of the co-owners being agriculturists is an admitted position.
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According to the learned Advocate, the said predecessor-in-title had purchased the land in question vide registered sale deed dated 03.11.1980, and entry No. 1589 was posted and certified reflecting the sale in favour of the said Harendra Maganlal Bhagat. Learned Advocate Mr. Chhaya would further submit that proceedings under Section 84C of the Tenancy Act, had been initiated against the predecessor-in-title of the petitioner and whereas the Mamlatdar and ALT, Ahmedabad had registered Tenancy Case No. 360 of 1990 and the purchase of the land in question by the predecessor was declared in breach of Section 63 of the Tenancy Act, and whereas the land was directed to be vested in the State Government. Learned Advocate Mr. Chhaya would submit that the predecessor-in-title of the petitioner had challenged the order in appeal and the appellate authority had remanded the matter back to the Mamlatdar and ALT, and whereas again in remand proceedings i.e. Tenancy Case No. 120 of 1993, the Mamlatdar and ALT vide order dated 20.10.1993 had again directed vesting of the land in the State Government for breaching of Section 63 of the Tenancy Act. The said order had been challenged by the predecessor-in-title of the petitioner before the Gujarat Revenue Tribunal vide Revision Application No. TEN/ BA/787/94, which came to be allowed by the Tribunal vide its order dated 08.12.1995. Learned Advocate would further submit that the seller Page 3 of 14 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:40:42 IST 2025 NEUTRAL CITATION C/SCA/13699/2024 JUDGMENT DATED: 24/01/2025 undefined of the land had challenged the said order before this Court by preferring Special Civil Application No. 3023 of 1996, and vide order dated 1510.199, 18.10.1999 and 22.10.1999, a learned Co-ordinate Bench of this Court, had set aside the order passed by the GRT and remanded the matter back to the GRT for a fresh decision. It is submitted that vide order dated 21.12.2000, the Tribunal had inter alia directed dropping of the proceedings against the predecessor-in-title of the petitioner under Section 84C of the Tenancy Act for breach of Section 63 of the Tenancy Act. Thus, the status of the predecessor of the petitioner being an agriculturist, according to the learned Advocate, stood confirmed. 5.1 Learned Advocate Mr. Chhaya would submit that when the petitioner had purchased the land in question, the revenue record clearly indicated that the predecessor-in-title of the petitioner was an agriculturist, and it was under such circumstances that the petitioner and his co-owners had entered into the transaction. Learned Advocate would submit that while there were certain proceedings which had taken place in the interregnum, and whereas reference is drawn to an entry No. 3368 with regard to a part of the very same land, which had been purchased by one Mr. Rajeshkumar Kantilal and whereas it is submitted that since the revenue authorities were raising an issue as regards the status of the Page 4 of 14 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:40:42 IST 2025 NEUTRAL CITATION C/SCA/13699/2024 JUDGMENT DATED: 24/01/2025 undefined predecessor as an agriculturist, the said purchaser had opted for proceedings under Section 63AB of the Tenancy Act, i.e. of regularizing the transaction since the last purchaser was an agriculturist by paying premium at the rate of 10% of the Jantri value. Learned Advocate would submit that as such, since the agriculturist status of the predecessor-in- title of the petitioner remained even on the date when the present petitioner had entered into the transaction with regard to the said land, yet, to ensure that the petitioner could put the land to some use, the petitioner had submitted an application dated 01.04.2022, inter alia requesting the Mamlatdar and ALT, Ghatlodiya to take appropriate action under Section 63AB of the Tenancy Act and while relying upon the fact that the status of the predecessor-in-title of the petitioner as an agriculturist, had not be subject matter of scrutiny before any competent forum, the petitioner had also drawn the attention of the revenue authorities to Tenancy Review Case No. 06 of 2019, i.e. with regard to the person who had purchased the adjacent parcel of land from the predecessor-in-title of the present petitioner. Learned Advocate would submit that while the said application had been preferred by the petitioner on 01.04.2022, the Mamlatdar and ALT, Ghatlodiya had passed the impugned order dated 23.08.2024 whereby the request of the petitioner for following the procedure under Section 63AB had been rejected and Page 5 of 14 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:40:42 IST 2025 NEUTRAL CITATION C/SCA/13699/2024 JUDGMENT DATED: 24/01/2025 undefined the Mamlatdar had directed initiation of proceedings under Section 63AD of the Tenancy Act and whereas consequent thereto, notice dated 02.09.2024 had been issued by the Mamlatdar, at which stage, the petitioner has approached this Court inter alia challenging order dated 23.08.2024 as well as consequent notice dated 02.09.2024.
6. At the outset, it requires to be noted that while learned AGP Mr. J.K. Shah for the respondent-State did raise an objection that the petitioner had efficacious remedy against the impugned order, considering that the notice under Section 63AD dated 02.09.2024 had been also subject matter of challenge, more particularly with regard to a transaction of the year 2018 and further considering the fact that the agriculturist status of the predecessor-in-title of the petitioner was continuing to exist, and in view of the fact that the Special Civil Application No. 12355 of 2024 was being heard by this Court, this Court had deemed it appropriate to take up the present petition for final disposal.
7. As against the submissions made by learned Advocate Mr. Chhaya for the petitioner while learned AGP Mr. Shah would attempt to defend the order in question, but the learned AGP could not dispute the fact that as of now, the status of the predecessor-in-title of the petitioner, as an Page 6 of 14 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:40:42 IST 2025 NEUTRAL CITATION C/SCA/13699/2024 JUDGMENT DATED: 24/01/2025 undefined agriculturist, is undisturbed and continues to remain. The learned AGP would further submit that the very fact of the petitioner having submitted an application on 01.04.2022 requesting that procedure under Section 63AB may be undertaken, is indicative of the fact that the petitioner himself was clear about the fact that the transaction itself was not in accordance with Tenancy Act. The learned AGP would submit that since the petitioner had preferred an application for taking out proceeding under Section 63AB of the Tenancy Act and after scrutinizing such application since the Mamlatdar was of the opinion that the said provisions would not come to the aid of the petitioner and whereas since it appeared to the Mamlatdar that the petitiner would be required to undergo the rigors of the procedure under Section 63AD, therefore, the Mamlatdar, while rejecting the request of the petitioner, had further initiated proceedings under Section 63AD of the Tenancy Act. Thus, leaned AGP would submit that since the entire procedure had happened at the behest of the petitioner, no fault could be found in the action taken by the Mamlatdar.
8. In rejoinder, learned Advocate Mr. Chhaya for the petitioner would submit that while it is indisputable that the status of the predecessor-in- title of the petitioner as an agriculturist still remains, yet, the petitioner Page 7 of 14 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:40:42 IST 2025 NEUTRAL CITATION C/SCA/13699/2024 JUDGMENT DATED: 24/01/2025 undefined wanted to cut short the entire issue and therefore he had moved an application for initiating procedure under Section 63AB of the Tenancy Act. Learned Advocate Mr. Chhaya would submit that while it was open for the Mamlatdar to have considered such application or at the most have reject the same, the Mamlatdar was not entitled, in a request made by the petitionerk, to direct initiation of proceedings under Section 63AD of the Tenancy Act. Learned Advocate Mr. Chhaya would submit that Section 63AD of the Tenancy Act inter alia envisages imposing of penalty at the rate of 03 times the amount of prevailing Jantri upon the person in whose favour the land is not validly transferred i.e. in the present case, the present petitioner, and whereas it is submitted that such a penalty would be too onerous for the petitioner and whereas it is under such circumstances that the petitioner had questioned the decision before this Court.
9. Having heard the learned Advocates for the respective parties and having perused the documents on record, the only question that arises for consideration of this Court is whether the Mamlatdar was entitled to invoke the provisions of Section 63AD of the Tenancy Act, more particularly in view of the fact that the predecessor-in-title of the petitioner remains as an agriculturist as on date. For better appreciation of Page 8 of 14 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:40:42 IST 2025 NEUTRAL CITATION C/SCA/13699/2024 JUDGMENT DATED: 24/01/2025 undefined the dispute, Section 63AD of the Tenancy Act, is reproduced hereinbelow for benefit.
"63AD. Penalty to transferee for transfer of land in breach of provisions of sub-section (1) of Section 63.- (1) Notwithstanding anything contained in section 84C, where the Mamalatdar suo moto or on the application of any person, has reason to believe that, in the breach of the provisions of clause (a), (b) or (c) of sub- section (1) of section 63, transfer of the land has taken place in favour of a person who is not an agriculturist or in favour of any institution, the Mamalatdar shall issue a notice to such person or institution and, after affording an opportunity of being heard, decide whether the transfer of the land is valid or not.
(2) If the Mamalatdar comes to a decision that the transfer of such land is not valid then he shall pass an order thereby,-
(i) imposing the penalty of three times the amount of the prevailing Jantri of such land on such person or institution in whose favour such land is not validly transferred; and
(ii) directing the person or institution in whose favour such land is not validly transferred to restore the land along with the rights and interest therein to the position in which it was immediately before such transfer within a period of one month of such order.
Explanation - For the purpose of this Act, the expression "Jantri" means the index of base market values as may be determine by the State Government from time to time.]"
9.1 A perusal of the above, would reveal that Section 63AD, provides for an exception to the procedure laid down under Section 84C of the Tenancy Act, inasmuch as, the Sub-section inter alia empowers the Page 9 of 14 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:40:42 IST 2025 NEUTRAL CITATION C/SCA/13699/2024 JUDGMENT DATED: 24/01/2025 undefined Mamlatdar suo motu or an application of any person to initiate proceedings for breach of clause (a), clause (b) or clause (c) of sub-
section 1 of Section 63 of the Tenancy Act i.e. transfer of land having taken place in favour of a person who is not an agriculturist. It is also envisaged that if the Mamlatdar comes to a conclusion that the transfer was not valid, then he could impose penalty of 03 times the amount of prevailing Jantri upon the person in whose favour the land is not validly transferred and whereas the Mamlatdar is also empowered to direct the person in whose favour the land is not validly transferred to restore the land in its earlier position before the transfer in question.
10. To this Court, it would appear that Section 63AD was not required to be invoked at all, more particularly considering that neither the factum of the petitioner being an agriculturist nor the factum of the predecessor-
in-title of the petitioner being an agriculturist stands disputed as on date.
The said issue being undisputable, there was no reason for the Mamlatdar to have initiated the proceedings at all. The above being the position, to this Court, it would appear that there is no requirement to elaborate the proposition any further.
11. Insofar as the aspect with regard to Section 63AB of the Tenancy Act is concerned, the said Section is also reproduced hereinbelow for Page 10 of 14 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:40:42 IST 2025 NEUTRAL CITATION C/SCA/13699/2024 JUDGMENT DATED: 24/01/2025 undefined benefit.
"63AB. Last transaction if made to an agriculturist to be valid even if earlier transaction or transactions may be invalid.- (1) Notwithstanding anything contained in section 63, where the Mamalatdar suo moto or on the application of any person interested in the land, has reason to believe that, in the breach of the provisions of clause (a), (b) or (c) of sub-section (1) of section 63, transfer of the land had taken place in favour of a person who was not an agriculturist, and that certain transaction or transactions have taken place thereafter and the person in whose favour the last transaction was made on or before the 30th June, 2015, is an agriculturist, he shall issue a notice to such person and shall give him an opportunity of being heard and also make an inquiry as he deems fit.
(2) If the Mamalatdar comes to the conclusion that as a result of the last transaction in respect of such land, the person to whom such land was transferred is indeed an agriculturist, he shall call upon such person to pay to the Sate Government, for the use of such land only for the agricultural purpose, the amount of ten percent of the prevailing Jantri and after such payment he shall declare, by an order, such last transaction to be valid irrespective of the fact that any one or more of such transactions was or were invalid and upon such order, no proceedings under section 84C shall be initiated and if already initiated shall be discontinued forthwith."
11.1 A perusal of Section 63AB reveals that if transaction is lastly made to an agriculturist, the same could be validated that is saved, even if earlier transactions were invalid. It would appear that if a transfer had taken place in favour of a person who was not an agriculturist and such person transacts the land to a person who is an agriculturist under the Tenancy Act, and the agriculturist was lastly holding the land in question, Page 11 of 14 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:40:42 IST 2025 NEUTRAL CITATION C/SCA/13699/2024 JUDGMENT DATED: 24/01/2025 undefined then the transaction by a non-agriculturist in favour of the agriculturist would be saved, subject to the condition that the transfer was before 30.06.2015 and subject to the condition that the person in whose favour the land is last transacted, would pay penalty at the rate of 10% of the prevailing Jantri value. To this Court, it would appear that considering the fact of the predecessor-in-title of the petitioner retaining his status as an agriculturist, even the said Section was not required to be resorted to, albeit, an application for resorting to the same had been made by the petitioner.
12. Having observed as above, this Court is inclined to accept the submissions of learned AGP Mr. Shah that as such, the Mamlatdar was called upon by the petitioner himself, by preferring an application on 01.04.2022, to resort to proceeding under Section 63AB, and whereas the Mamlatdar upon scrutiny, had come to a conclusion that proceedings under Section 63AD ought to be initiated. It appears that though the petitioner was not required to make an application for resorting to procedure under Section 63AB, yet, having done so, the Mamlatdar had rejected the same and inter alia directed initiation of proceedings under Section 63AD. While the Mamlardar's action cannot be justified, more particularly in view of the discussion above, but at the same time the fact Page 12 of 14 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:40:42 IST 2025 NEUTRAL CITATION C/SCA/13699/2024 JUDGMENT DATED: 24/01/2025 undefined remains that it was the petitioner who initiated the entire process.
13. Be that as it may, to this Court, it would appear that since provisions of Section 63AD could not be invoked, therefore, the impugned order dated 23.08.2024 passed by the Mamlatdar and ALT, Ghatlodiya, is required to be interfered with, yet, considering the fact that it was the petitioner who was agreeable to pay 10% Jantri value i.e. as per Section 63AB, therefore, appropriate orders also are required to be passed with regard to the said agreement. The reason being that when the petitioner himself had volunteered for initiation of a particular proceeding, which otherwise may not have been invokable, then such voluntary gesture shown by the petitioner in favour the State, ought to be appropriately dealt with, that is to say that interest of the State revenue is also required to be taken care of, albeit appropriately.
14. Having regard to the above discussion, the present petition is required to be allowed and the following directions are required to be passed :
(i) The order dated 23.08.2024 passed by the Mamlatdar and ALT, Ghatlodiya, Ahmedabad, is hereby quashed and set aside, consequently the Notice dated 02.09.2024 issued by the very same authority is also Page 13 of 14 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:40:42 IST 2025 NEUTRAL CITATION C/SCA/13699/2024 JUDGMENT DATED: 24/01/2025 undefined hereby quashed and set aside.
(ii) The petitioner is directed to pay cost quantified at Rs. 10,00,000/-, which would be the approximate equivalent amount of the 10% Jantri value as the petitioner would have paid if his application under Section 63AB had been accepted, to be deposited with the Chief Minister's Relief Fund, within a period of four weeks from the date of receipt of this order.
15. With the above observations and directions, the present petition stands disposed of as allowed.
Order in Special Civil Application No. 12355 of 2024 :
16. In view of the order passed by this Court in Special Civil Application No. 13699 of 2024, the impugned order dated 28.10.2022 passed by the Collector, Ahmedabad is hereby quashed and set aside. It would be open for the petitioner to file a fresh application for grant of NA permission which shall be considered appropriately on its own merits in accordance with law. The present petition stands disposed of accordingly.
Direct service is permitted.
(NIKHIL S. KARIEL,J) BDSONGARA Page 14 of 14 Uploaded by BHUPENDRASINH SONAGRA(HC01082) on Thu Jan 30 2025 Downloaded on : Thu Jan 30 21:40:42 IST 2025