Gujarat High Court
Abdul Rahim Abdul Sattar Foda & 3 vs District Collector Dahod & 3 on 20 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/11265/2012 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 11265 of 2012
With
SPECIAL CIVIL APPLICATION NO. 8083 of 2017
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ABDUL RAHIM ABDUL SATTAR FODA & 3....Petitioner(s)
Versus
DISTRICT COLLECTOR DAHOD & 3....Respondent(s)
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Appearance:
MR ANSHIN DESAI, SR.ADVOCATE with MR ASHOK N PARMAR,
ADVOCATE for the Petitioner(s) No. 1 - 4
MS NISHA THAKORE, AGP for the Respondent(s) No. 1 - 2
MR KV SHELAT, ADVOCATE for the Respondent(s) No. 3
MR SUNIL S JOSHI, ADVOCATE for the Respondent(s) No. 4
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CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 20/09/2017
COMMON ORAL ORDER
Since the issues raised in both the captioned petitions are the same, those were heard analogously and are being disposed of by this common order.
For the sake of convenience, the Special Civil Application No.11265 of 2012 is treated as the lead matter.
By this application under Article 227 of the Constitution of India, the applicants, claiming to be the bonafide purchasers of the property for value without notice, call in question the legality and validity of the order dated 30th June 2012 passed by the SSRD at Ahmedabad, by which the SSRD rejected the Page 1 of 13 HC-NIC Page 1 of 13 Created On Sat Oct 07 00:37:11 IST 2017 C/SCA/11265/2012 ORDER revision application filed by the respondent no.4 herein, thereby affirming the order of the Collector, Dahod, dated 2nd September 2011.
Indisputably, the applicants herein seeking to challenge the impugned order passed by the SSRD were not the party in the proceedings. They claim to have been prejudiced by the impugned order, and that is how they are here before this Court questioning the order of the SSRD.
The facts giving rise to this application may be summarised as under :
(1) On 8th June 1989, a Will came to be executed by one Dahyabhai Fulabhai Patanwadia in favour of the respondent no.4 - Maheshchandra V.Bhandari for the land bearing Block No.858 of village Sarad, District Vadodara. Thereafter, on 2nd March 1991, Dahyabhai Fulabhai Patanwadia passed away. On 19th March 1991, an entry bearing no.3659 came to be mutated in favour of the respondent no.4 - Maheshchandra V.Bhandari and others for the land bearing Block No.858.
(2) The respondent no.4 - Maheshchandra V.Bhandari purchased lands bearing Survey Nos.528/7 and 528/8 situated at Dahod by two registered sale-deeds on 23rd December 2005 and 2nd June 2005 respectively. The sale-
deeds dated 23rd December 2005 and 2nd June 2007 came to be mutated and certified in favour of the respondent no.4 - Maheshchandra V.Bhandari vide entry nos.24876 and 24102 dated 30th December 2005 and 11th April 2007 respectively.
Page 2 of 13HC-NIC Page 2 of 13 Created On Sat Oct 07 00:37:11 IST 2017 C/SCA/11265/2012 ORDER (3) In the year 2010, Ravindrakumar Khandelwal, claiming to be the nephew of the seller of the land bearing Survey Nos.528/7 and 528/8, complained to the Commissioner of Revenue, Gandhinagar, that the respondent no.4 - Maheshchandra V.Bhandari became the agriculturist by a Will and, therefore, appropriate proceedings be initiated under Section 84C of the Bombay Tenancy Act. Thereafter, for entry no.3659 dated 19th March 1991, proceedings were initiated against the respondent no.4 - Maheshchandra V.Bhandari being Tenancy Case No.69 of 2010.
(4) On 10th December 2010, the Mamlatdar & ALT, Vadodara, in Tenancy Case No.69 of 2010, held against the respondent no.4 & others and initiated proceedings under Section 84C for breach of Section 63.
(5) On 19th January 2011, the present petitioners, who are the agriculturists, had purchased the lands bearing Survey Nos.528/7 and 528/8 from the respondent no.4 - Maheshchandra V.Bhandari by four registered sale-deeds.
(6) In the year 2011, the respondent no.4 - Maheshchandra V.Bhandari was issued with a show-cause notice by the Collector for cancelling the entries bearing nos.24876 and 24102 dated 30th December 2005 and 11th April 2007 respectively.
(7) It seems that the respondent no.3 herein, the nephew of the seller of the sale-deeds dated 23rd December 2005 and 2nd June 2007 respectively, applied for being impleaded as a party before the Collector and was heard Page 3 of 13 HC-NIC Page 3 of 13 Created On Sat Oct 07 00:37:11 IST 2017 C/SCA/11265/2012 ORDER by the Collector, though the seller had no right of being heard.
(8) It is submitted that on 2nd September 2011, the Collector cancelled the said entry nos.24876 and 24102 dated 30th December 2005 and 11th April 2007 respectively which were recorded in the name of the respondent no.4 - Maheshchandra V.Bhandari. Against the decision of the Mamlatdar & ALT, Vadodara, rendered on 10th December 2010 in the Tenancy Case No.69 of 2010, the respondent no.4 - Maheshchandra V.Bhandari preferred the Tenancy Appeal No.10 of 2011 before the Deputy Collector. The Deputy Collector, vide his order dated 30th July 2011, dismissed the Tenancy Appeal No.10 of 2011 preferred by the respondent no.4 - Maheshchandra V.Bhandari and affirmed the order dated 10th December 2010 passed by the Mamlatdar & ALT. Against the orders dated 30th July 2011 passed by the Deputy Collector and dated 10th December 2010 passed by the Mamlatdar & ALT, Vadodara, the respondent no.4 preferred the Revision Application No.217 of 2011.
(9) On 20th September 2011, an order of status quo was passed by the GRT and is now confirmed till the final disposal of the revision application. As against the order of the Collector dated 2nd September 2011, whereby the two revenue entries bearing nos.24876 and 24102 dated 30th December 2005 and 11th April 2007 respectively were quashed, the respondent no.4 - Maheshchandra V.Bhandari preferred the Revision Application No.36 of 2011 before the SSRD. On 22nd November 2011, an order Page 4 of 13 HC-NIC Page 4 of 13 Created On Sat Oct 07 00:37:11 IST 2017 C/SCA/11265/2012 ORDER of status quo was granted by the SSRD and the same was communicated on 7th December 2011.
(10) Despite the order of status quo granted by the SSRD, the Mamlatdar, Dahod, did not comply with the same, and on 26th December 2011, an entry bearing no.26996 was recorded, whereby the order dated 2nd September 2011 passed by the Mamlatdar is recorded as if there was no status quo granted by the SSRD on 22nd November 2011.
(11) Thereafter on 20th January 2012, on complaint being made, the SSRD sought for an explanation from the Mamlatdar, Dahod, that despite status quo, the order of the Mamlatdar & ALT was recorded vide entry no.26996. On 7th February 2012, the Mamlatdar replied to the SSRD and gave an explanation that the status quo order which was extended was not produced and, therefore, entry no.26996 recording the order dated 2nd September 2011 of cancellation of the two entries was mutated.
(12) The SSRD, on 30th June 2012, rejected the revision application preferred by the respondent no.4 - Maheshchandra V.Bhandari.
(13) On 3rd September 2012, this Court issued notice.
Mr.Desai, the learned senior counsel appearing for the applicants, submitted that his clients are the bonafide purchasers of the property for value without notice. He submitted that, in fact, his clients came to learn about the impugned order passed by the SSRD at a very belated stage, Page 5 of 13 HC-NIC Page 5 of 13 Created On Sat Oct 07 00:37:11 IST 2017 C/SCA/11265/2012 ORDER and in such circumstances, they could not even seek permission to implead themselves in the proceedings. He would submit that indisputably on the date when the subject land was purchased by his clients from the respondent no.4 herein, the applicants were agriculturists. He submits that the dispute is between the respondent no.4 and the respondent no.3.
Mr.Desai submitted that his clients, in fact, have been cheated. Of course, this is disputed by Mr.Shelat, the learned counsel appearing for the respondent no.3.
Mr.Desai, the learned senior counsel, placed reliance on the following decisions to make good his case that the seller has no right to question the transaction.
(1) The Gujarat Act No.28 of 2015 (The Gujarat Tenancy and Agricultural Lands Laws (Amendment) Act, 2015) published in the Gujarat Government Gazette on 16th September 2015, more particularly Section 63AB;
(2) Ratnaprabhabai D/o Hirojirao Naranrao Mane, Smt v. Tulsidas V.Patel, M/s., (1982)2 GLR 213;
(3) Bhailalbhai Mathurbhai Patel v. The State of Gujarat and others, (Special Civil Application No.9423 of 1996, decided on 5th November 1999);
(4) Bhailalbhai Mathurbhai Patel v. State of Gujarat, (Letters Patent Appeal No.1625 of 1999, decided on 29 th February 2000);
(5) Govindbhai Manilal Patel v. State of Gujarat, (Special Civil Application No.7738 of 2000, decided on 12th July 2000);
(6) Naranbhai Bababhai Patel, through Bipinbhai N.Patel v. Harendra Maganlal Barot, (Special Civil Application No.1478 of 2001, decided on 1st March 2001);
Page 6 of 13HC-NIC Page 6 of 13 Created On Sat Oct 07 00:37:11 IST 2017 C/SCA/11265/2012 ORDER (7) Natvarlal Jethalal v. N.J.Shah, (Special Civil Application No.9130 of 1995, (Special Civil Application No.9130 of 1995, decided on 10th April 2001);
(8) Sarvagna Navinchandra Godiawala v. State of Gujarat and others, (2003)2 GLR 1266;
(9) Manibhai Asharam and another v. State of Gujarat, (Special Civil Application No.15697 of 2007 and allied matters, decided on 29th July 2008);
(10) Gulabbhai Ravjibhai Patel v. Badriprasad Vithalrao Bende and others, (2011)3 GLR 2472;
(11) Sunderlal Bhanabhai Bhagat v. State of Gujarat, (2012)3 GLR 2081;
(12) Rinki Shashikant Gandhi v. Mamlatdar, Vadodara Taluka and others, (2012)2 GLR 1275;
(13) Dashrathlal M.Patel, heirs and legal representatives of Maganbhai Joitaram and others v. State of Gujarat and others, (2013)1 GLR 418;
(14) Govindbhai Manilal Patel and others v. State of Gujarat and another, (2012)5 GLR 3858; and (15) Rameshbhai Laxmanbhai Sakaria v. Gujarat Revenue Tribunal and others, (Special Civil Application No.13476 of 2016, decided on 6th July 2017).
The SSRD, while rejecting the revision application filed by the respondent no.4 herein, held as under :
"Carefully examined the revision application of the applicant, written/oral submissions of the learned advocates of the parties, perused the order of the Collector as well as the record of the case. One Maheshchandra Vajechandra Bhandari and Shri Vinodchandra Vajechand Bhandari and Shantilal Radhakishan Shah had become agriculturist by virtue of entry bearing no. 3659 entered on basis of Will, in respect of agricultural land bearing Block no. 858 of Page 7 of 13 HC-NIC Page 7 of 13 Created On Sat Oct 07 00:37:11 IST 2017 C/SCA/11265/2012 ORDER village Sarar, Taluka District Vadodara, for which the Mamlatdar & ALT, Vadodara initiated proceedings under section 84(c) of the Tenancy act thereby Mamlatdar & ALT, Vadodara by order no. Tenant case no. 69/2010, dt. 10.12.2010 holding that said Maheschandra Vajechandra Bhandari and Shri Vinodchandra Vajechand Bhandari and Shantilal Radhakishan Shah had become agriculturist by virtue of entry bearing no. 3659 were, otherwise not agriculturist. That Maheschandra Vajechand Bhandari and Vinodchandra Vajechand Bhandari though being non agriculturist has purchased agricultural land bearing R.S.no.528/8 of Dahod, Dahod whereby mutation entry no. 23876 and 24102 were certified. Therefore, both the aforesaid mutations entries were required to be taken in revision and upon receiving such instructions from the Revenue Department and the darkhast received by communication no.JMN/entry review/ vashi/99, dt. 15.2.2011 from the Mamlatdar, Dahod, the Collector, Dahod issued show cause notice dt. 29.1.2011 as to why these entries should not be cancelled in review under section 211 of the Bombay Land Revenue Code?. The parties were called upon to remain present on the date fix for hearing, time schedule and place with necessary documentary evidence before the Collector, Dahod. That the applicants herein had submitted their written reply in response to the same before the Collector, Dahod and had submitted to withdraw the notice and uphold the mutation entries no.23876 and 24102. The Collector, Dahod in exercise of revisional power conferred under the Code, has after considering the submissions made by the applicant by impugned order, had directed to cancelled the sale transaction's mutation entry no. 23876, dt. 30.12.2005 and mutation entry no. 24102, dt. Dt. 11.4.2007. Moreover, the agricultural land being sold to non agriculturist , the transaction being hit by section 63 of the Tenancy act, directed the Mamlatdar & ALT, Dahod to initiate proceedings under section 84(c) of the Tenancy act. Being aggrieved by the said order, the applicants have preferred the present revision. That upon perusal of the order dt. 10.12.2010 passed by the Mamlatdar & ALT, Vadodara in Tenancy case no. 69/2010 it appears that original owner Dahyabhai Fulabhai Patanwadiya of land bearing Bl. no. 858 admeasuring 0-55-64, of mouje :
Sarar, Taluka District : Vadodara had executed a Will dt. 8.6.89 in favour of Shah Dhaneshkumar Bhogilal, Shah Page 8 of 13 HC-NIC Page 8 of 13 Created On Sat Oct 07 00:37:11 IST 2017 C/SCA/11265/2012 ORDER Kanaklataben Dhaneshkumar, Shah Shantilal Radhakishan, Parikh Satishbhai Gopaldas, Bhandari Maheshchandra Vajechandra, Bhandari Vinodchandrai Vajechandra, Desai Sanjay Madhusudan.....................
That on demise of Dahyabhai Fulabhai, on the basis of the aforesaid Will, mutation entry no. was entered in the revenue record which was certified on 26.4.1991.................... Therefore, Mamlatdar & ALT, Vadodara vide his order dt. 10.2.2010, has declared them non agriculturist with clear observation in his order that all persons being non agriculturist with intention to get status of agriculturist has got disputed entry entered and further directed to vest the disputed land in State in terms of section 84(c)(3) of the Tenancy act. The applicant are also included in the by the Mamlatdar & ALT, Vadodara. Hence, right from beginning this action of the applicants being malafide, improper and illegal in eyes of law is nullity. The impugned order of the Collector, Dahod cancelling mutation entry no. 23876 dt. 30.12.2005 and mutation entry no. 24102 dt. 11.4.2007 in respect of land purchased by the applicants , on the ground that the applicants are non agriculturist in breach of section 63 of the Tenancy act as held by the Mamlatdar & ALT, Vadodara is proper and valid. The said 11 persons have challenged aforesaid order dt. 10.12.2010 passed by the Mamlatdar & ALT, Vadodara by filing an appeal before the Deputy Collector, Land Reforms and Appeal, Vadodara being Tenancy Appeal no. 7/2011, Tenancy Appeal no. 8/2011, Tenancy Appeal no. 10/2011, Tenancy Appeal no. 16/2011 whereby the Deputy Collector, Land reforms and Appeal,Vadodara order was pleased to reject the same and confirmed the order dt. 10.12.2010 passed by the Mamlatdar & ALT, Vadodara in Tenancy case no. 69/2010. Being aggrieved by the same, the applicant namely Bhandari Maheshchandra Vajechand has preferred revision before the Gujarat Revenue tribunal, at Ahmedabad being revision application no. BA/217/11(3), wherein by order dt. 30.4.2012, the stay has been extended 5.7.2012. The said stay has been granted against the 10.12.2010 passed by the Mamlatdar & ALT, Vadodara and Deputy Collector, Land reforms and Appeal, Vadodara in respect of mutation entry no.3659, dt. 19.3.1991 of land bearing Block no. 858 admeasuring 0-55-54 hec. Are sq. mrts of village : Sarar, Taluka District : Vadodara. Therefore, aforesaid orders being different are not applicable to the Page 9 of 13 HC-NIC Page 9 of 13 Created On Sat Oct 07 00:37:11 IST 2017 C/SCA/11265/2012 ORDER proceedings undertaken by the Collector, Dahod. Therefore, the submissions made by the learned advocate for the applicant about applicability of the stay order granted in the revision filed before the Gujarat Revenue Tribunal in respect of land of mouje : Sarar, Taluka District : Vadodara are not applicable to the facts of the present case and are not taken into consideration. Considering the aforesaid facts, the impugned order of the Collector, Dahod in exercise of rule 108(6) of Gujarat land Revenue Code cancelling mutation entry no. 23876, dt. 30-11-2005 and mutation entry no.24102, dt. 11-4- 2007 of land bearing Revenue survey no. 528 paiki 8 and Survey no. 528 paiki 7 of mouje : Dahod Kasba and further directing Mamlatdar & ALT, Dahod for initiation of section 84(c) of the Tenancy act for breach of section 63 is proper and legal. No interference is called for in the impugned order, the grounds raised by the learned advocate for the applicant is not required to be accepted and therefore, the revision application is rejected."
Having heard the learned counsel appearing for the parties and having considered the materials on record, I am of the view that no error, not to speak of any error of law, could be said to have been committed as such by the SSRD in passing the impugned order.
Well, if the applicants herein claim to be the bonafide purchasers of the subject land for value without notice, then it is always open for the applicants to file an appropriate application under Section 63AB of the Tenancy Act, 1948. Section 63AB of the Tenancy Act reads as under :
"63AB. (1) Notwithstanding anything contained in section 63, where the Mamlatdar suo motu 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 Page 10 of 13 HC-NIC Page 10 of 13 Created On Sat Oct 07 00:37:11 IST 2017 C/SCA/11265/2012 ORDER 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 Mamlatdar 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 State Government, for the use of such land only for the agricultural purpose, the amount of ten per cent. 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."
If any such application is filed by the applicants within a period of 30 days from today before the competent authority, the competent authority shall look into the same in accordance with law on its own merits keeping in mind all the facts which have been narrated above.
It has been submitted before me by the other side that the applicants are not the bonafide purchasers of the subject land. This issue may be gone into by the competent authority while deciding the application under Section 63AB of the Tenancy Act.
If such application is filed by the applicants, the same shall be considered and dispose of within a period of two months thereafter. An opportunity of hearing shall be given to the applicants herein in the peculiar facts and circumstances of the case before taking an appropriate decision as regards Section 63AB of the Tenancy Act.
Page 11 of 13HC-NIC Page 11 of 13 Created On Sat Oct 07 00:37:11 IST 2017 C/SCA/11265/2012 ORDER With the above, this application is disposed of.
SPECIAL CIVIL APPLICATION NO.8083 OF 2017 This petition under Article 227 of the Constitution of India is filed questioning the legality and validity of the order dated 13th January 2017 passed by the Mamlatdar in Section 84(C) proceedings. The proceedings of this matter have a direct relation with the matter which is disposed of above. The subject land is the same.
As the authority has reached to the conclusion that the transaction was hit by Section 63 of the Tenancy Act, the proceedings under Section 84(C) came to be initiated, and ultimately, the Mamlatdar has passed an order forfeiting the land to the State Government.
This application is filed by the respondent no.4 of the earlier matter. He had already sold the land. I wonder what interest he has now in the land in question. If anyone has to suffer, it is the petitioners of the first matter who has to suffer. Even otherwise, the impugned order is of the Mamlatdar. There is an alternative efficacious remedy available with the applicant herein to question the same before the higher revenue authority if at all he intends to.
Since I have permitted the applicants of the first matter to file an application under Section 63AB of the Tenancy Act, till the disposal of the same by the competent authority, the impugned order passed by the Mamlatdar in the 84(C) proceedings shall not be given effect to. With the disposal of Page 12 of 13 HC-NIC Page 12 of 13 Created On Sat Oct 07 00:37:11 IST 2017 C/SCA/11265/2012 ORDER the application under Section 63AB of the Tenancy Act in one way or the other, thereafter the order passed by the Mamlatdar in the 84(C) proceedings be given effect to, subject to any further orders that might be passed by any court of law or any other revenue authority.
Direct service is permitted.
(J.B.PARDIWALA, J.) MOIN Page 13 of 13 HC-NIC Page 13 of 13 Created On Sat Oct 07 00:37:11 IST 2017