Gujarat High Court
Heirs Of Deceased Chandubhai ... vs Pax Society on 5 April, 2018
Author: Z.K.Saiyed
Bench: Z.K.Saiyed
C/CRA/176/2017 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL REVISION APPLICATION NO. 176 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE Z.K.SAIYED
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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 or any
order made thereunder ?
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HEIRS OF DECEASED CHANDUBHAI KRISHNARAO JADAV
Versus
PAX SOCIETY
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Appearance:
MR MEHUL SHAH with MR VISHAL C MEHTA for the PETITIONER(s) No.
1,1.1,1.2,1.3,1.4
MR SANJAY DAVE with MS ANUJA S NANAVATI(5229) for the
RESPONDENT(s) No. 1
NOTICE NOT RECD BACK(3) for the RESPONDENT(s) No. 2
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CORAM: HONOURABLE MR.JUSTICE Z.K.SAIYED
Date : 06/04/2018
CAV JUDGMENT
1. Rule. Mr.Sanjay Dave, learned Advocate appearing with Ms.Anuja S. Nanavaty, learned Page 1 of 21 C/CRA/176/2017 CAV JUDGMENT Advocate for the respondent No.1 waives service of rule.
2.The present Civil Revision Application is filed under Section 115 of the Code of Civil Procedure against the order passed below application, Exh.99, dated 2192016 in Civil Suit No.2161 of 2006 pending before the Court of the Additional Principal Judge, City Civil Court No. 2, Ahmedabad, whereby the application under the provisions of Order 7, Rule 11 of the Code of Civil Procedure preferred by the Petitioners came to be rejected by the Trial Court.
3. The brief facts of the present controversy between the parties are summarized as under :
4. The Respondent No. 1 - Trust, claiming to be registered under the provisions of Trust Registration Act as well as under the provisions of the Bombay Public Trusts Act, preferred Civil Suit No.2161 of 2006 initially against the predecessor of the Petitioners and the Respondent No. 2 herein for permanent injunction restraining the original Defendant from interfering in the peaceful possession of the Respondent No. 1 over the agricultural lands bearing Survey Nos. 166, 181, 182, 179, 180, 185/Paiki, Page 2 of 21 C/CRA/176/2017 CAV JUDGMENT 207/Paiki and 208 situated at Village Odhav, TalukaDistrict Ahmedabad, based on a Registered Agreement To Sell dated 1551986 executed in favour of the Respondent No. 1 - Trust.
5. The Respondent No. 1 - Trust also filed a Notice of Motion, Exh.7, seeking interim injunction against the original Defendants and the Trial Court initially, on date 1411 2006, passed an order of maintenance of Status Quo in respect of possession of the suit lands till the Defendants filed their Reply on date 24112006 and further passed an order to appoint Court Commissioner for preparing and submitting the Report in respect of the suit lands.
6. The Court Commissioner, on date 15112006, prepared a Report of the suit lands and also prepared a Map thereof, wherein it is specifically mentioned that the Respondent No. 1 is in possession of only the area admeasuring 7000 sq.mt of Survey No. 182, and, therefore, both the parties filed a joint pursis before the Trial Court and the Trial Court, on date 2832007, passed an order below Notice of Motion, Exh.7, on date 2832007 directing the parties to act in Page 3 of 21 C/CRA/176/2017 CAV JUDGMENT strict compliance of the said pursis and further passed an order for maintenance of status quo in respect of the possession of the suit lands as per the Report of the Court Commissioner by both the parties.
7. Thereafter, the Respondent No. 1 Trust, upon death of the original Defendant No. 1 - Chandubhai Krushnarao Jadav on date 211 2007, preferred an application, Exh.60, on date 12102010, for joining the Petitioners as heirs and legal representatives of the Original Defendant No. 1 and the Trial Court has allowed the said application.
8. The Petitioners thereafter preferred an application, Exh. 99, on date 1822016, under the provisions of Order 7, Rule 11 of the Code of Civil Procedure on various grounds including the ground that the suit of the original Plaintiff is barred by law and the original Plaintiff - Trust does not have any cause of action to prefer the present suit on the basis of the alleged agreement to sell executed in favour of the original Plaintiff, which is clearly invalid under the law.
9. The Petitioners also preferred another application, Exh.106, on date 552016 Page 4 of 21 C/CRA/176/2017 CAV JUDGMENT seeking clarification in the order passed by the Trial Court below Notice of Motion on date 2832007 and the Trial Court, bypassing a common order below application, Exh. 99 and application, Exh.106, on date 2192016, rejected the application, Exh.99, preferred by the Petitioner under the provisions of Order 7, Rule 11 of the Code of Civil Procedure and partly allowed the application, Exh.106, by clarifying that the status quo is required to be maintained by the parties only in respect of the possession of the Plaintiffs over the party of the suit lands admeasuring 7,000 sq.yd.
10. In the aforesaid background, the Petitioners original Defendant Nos.1(1) to 1(4) preferred the present Revision Application challenging the order passed by the Trial Court below application, Exh.99.
11. Heard the Learned Senior Advocate Shri Mehul S. Shah assisted by the Learned Advocate Shri Vishal C. Mehta for the Petitioner, and the Learned Advocate Shri Sanjiv Dave for Miss Anuja Nanavaty for the Respondent No. 1, Notice to the Respondent No. 2 is not received back; however, the Respondent No. 2 - original Defendant No. 2 Page 5 of 21 C/CRA/176/2017 CAV JUDGMENT has already been deleted before the Lower Court and, therefore, his presence is not required for deciding the present Revision Application.
12. Shri Shah, Learned Senior Advocate for the Petitioners has drawn my attention to the copy of the plaint as well as the documents produced along with the same and I have perused various documents produced on record by way of the Paper - Book filed by the Respondent No. 1 herein and Shri Shah, the Learned Senior Advocate, has raised the following contentions in the present Revision Application.
13. Undisputedly the present suit is filed by the Respondent No.1 - Trust - original Plaintiff for the agricultural lands mentioned in the plaint of the present suit; however, the present suit is filed only in the name of the Respondent No.1 - Trust and the Respondent No.1 - Trust has not joined any Trustees or authorised officer to represent on its behalf, and, therefore, the suit of the Plaintiffs is not maintainable in the eyes of law. In support of this contention, Mr.Shah has relied upon the judgment delivered by the FullBench of this Page 6 of 21 C/CRA/176/2017 CAV JUDGMENT Court in case of Atmaram Ranchhodbhai V/s. Gulamhusen Gulam Mohiyaddin, reported in 1972 GLR 828, particularly Paragraphs 7, 8 and 11, which are reproduced as under :
"7. Now if the granting of a lease is a matter which cannot be delegated by a trustee it must follow as a necessary corollary that the determination of a lease also cannot be regarded as a matter which can be delegated by a co trustee to another cotrustee or to any one else. The power and function to determine equally the other cannot be. Both functions are affected with a fiduciary duty with respect to which all cotrustees are bound to exercise their judgment and no one cotrustee cam abdicate the exercise of his judgment by delegating these functions to his cotrustee or to any other person.
8. It is therefore clear that one co trustee cannot give notice to quite determining the tenancy. The decision to determine the tenancy by giving notice to quite must be taken by all cotrustees unless of course the Page 7 of 21 C/CRA/176/2017 CAV JUDGMENT instrument of trust otherwise provides or the beneficiaries being competent I to contract consent or in any particular case it is established that on the peculiar facts obtaining in that case the delegation of the power to determine the tenancy was necessary But when we say that the tenancy must be determined by all cotrustees we must make it clear that what we mean is that the decision terminate the tenancy must be taken by all the cotrustees. The formal act of giving notice to quite pursuant to the decision taken by all cotrustees may be performed by one co trustee on behalf of the rest. The notice to quit given in such a case would be a notice given with the sanction and approval of all the co trustees and would be clearly a notice by all cotrustees.
11. We are therefore of the view that unless the instrument of trust otherwise provides all cotrustees must join in filing a suit to recover possession of the property from the tenant after determination of the lease. No one single cotrustee even he Page 8 of 21 C/CRA/176/2017 CAV JUDGMENT be a managing trustee unanimously chosen by the cotrustees can maintain such a suit against the tenant without joining the other cotrustees. All cotrustees must be joined in the suit and if any one or more of them are unwilling to he joined in the suit as plaintiffs or for some reason or the other it is not possible to join them as plaintiffs they must be impleaded as defendants so that all cotrustees are before the Court."
14. As per the case of the Respondent No. 1 -
Trust itself, the alleged agreement to sell is executed in respect of the agricultural lands which is exfacie void in view of the provisions of Section 63(2) of the Gujarat Tenancy And Agricultural Lands Act, 1948 as the Respondent No.1 - Trust is not an agriculturist within the definition of Section 2(2) and 2(11) of the said Act, and the Respondent No.1 - Trust is a Trust having independent legal entity and any transaction in contravention of the said provisions is exfacie void and, therefore, the Respondent No.1 - Trust does not have any cause of action to prefer the present suit based on the said void and illegal agreement to sell.
Page 9 of 21 C/CRA/176/2017 CAV JUDGMENTIn support of this contention, Shri Shah has relied upon the provisions of Sections 2(2), 2(11) and 63(2) of the Gujarat Tenancy And Agricultural Lands Act, 1948 and also relied upon the judgment of the Division Bench of this Prathmesh Farms Pvt. Ltd. reported in 2011(1) GLR 159 particularly the Paragraphs 8, 11 and 13, which are reproduced as under:
"8. In view of the express legal provisions of the Act enacted with the express objects, inter alia, of regulating and imposing restrictions on transfer of agricultural lands could hardly accommodate a juristic person or a Company as an 'agriculturist". According to the clear definitions, a legal person cannot cultivate land personally by its own labour or under personal supervision of itself of its family members. Therefore, the word "person" defines in Sec. 2(11) to include a joint family, cannot be allowed an expansive interpretation so as to include a legal person in the context of the provisions of Sec. 63 of the Act.
11. The other decision of the Apex Court relied upon for the respondent viz. Shri Kalanka Devi Sansthan V/s. Maharashtra Page 10 of 21 C/CRA/176/2017 CAV JUDGMENT Revenue Tribunal, Nagpur [(1969) 2 SCC 616] also cannot carry the case of the respondent any further. The question in that case was whether the Sansthan can claim possession of land from tenant on the ground of personal cultivation. And it was held as under: ["4. .... The idol is capable of holding property in the same way as a natural person. "It has a juridical deity in his charge and who is in law its manager with all the powers which would, in such circumstances, on analogy, be given to the manager of the estate of an infant heir". The question, however, is whether the idol is capable of cultivating the land personally. The argument raised on behalf of the appellant is that under Explanation I in Sec.2(12) of the Act a person who is subject to any physical or mental disability shall be deemed to cultivate the land personally if it is cultivated by the servants or by hired labourer. In other words an idol or a Sansthan that would fall within the meaning of the word Page 11 of 21 C/CRA/176/2017 CAV JUDGMENT "person" can well be regarded to be subject to a physical or mental disability and land can be cultivated on its behalf by servants or hired labourers. It is urged that in Explanation (I) the idol would be in the same position as a minor and it can certainly cultivate the land personally within the meaning of the Sec.2(12). It is difficult to accept the suggestion that the case of the appellant would fall within Explanation (I) in Sec. 2(12). Physical or mental disability as defined by S.2(22) lays emphasis on the words "personal labour or supervision". As has been rightly pointed out in Shri Kesheoraj Deo Sansthan, Karanja V/s. Bapurao Deoba, 1964 Mah LJ 589 in which an identically similar (sic) point came up for consideration, the dominating idea of anything done personally or in person is that the thing must be done by the person himself and not by or through someone else. In our opinion the following passage in that judgment at p. 593 explains the whole position correctly:Page 12 of 21 C/CRA/176/2017 CAV JUDGMENT
["It should thus appear that the legislative intent clearly is that in order to claim cultivation as a personal cultivation there must be established a direct nexus between the person who makes such a claim, and the agricultural processes or activities carried on the land. In other words, all the agricultural operations, though allowed to be done through hired labour or workers must be under the direct supervision, control, or management of the landlord. It is that sense that the words "personal supervision" must be understood. In other words, the requirement of personal supervision under the third category of personal cultivation provided for in the definition does not admit of an intermediary between the landlord and the labourer, who can act as agent of the landlord for supervising the operations of the agricultural worker. If that is not possible in the case of one landlord, we do not see how it is possible in the case of another landlord merely because the landlord Page 13 of 21 C/CRA/176/2017 CAV JUDGMENT in the latter case is a juristic person."] In other words the intention is that the cultivation of the land concerned must be by natural and not by legal persons.] It is further held in para 6 as under: ["6. It has lastly been contended that the relevant provisions of the Act which have the effect of debarring the appellant from claiming possession for personal cultivation violate the provisions of Arts.14 and 19(1)(f) of the Constitutions. It is urged that discrimination is writ large between animate and juristic persons who fall within the definition of the word 'person'. Such a contention, however, cannot be entertained in view of Art.31A of the Constitution. The Act had received the assent of the President and is rendered immune from attack or challenge on the ground of violation of Arts.14 or 19 of the Constitution. in Mahadeo Paikaji Kolhe Yavatmal V/s. State of Bombay, Page 14 of 21 C/CRA/176/2017 CAV JUDGMENT (1962) 1 SCR 733 = (AIR 1961 SC 1517) the constitutional validity of the Act itself was canvassed but the challenge failed. Similarly the validity of the Bombay Tenancy and Agricultural Lands Amendment Act, 1956 as applied to Vidarbha Region and Kutch Area was upheld in Sri Ram Narain Medhi V/s. The State of Bombay, (1959) (Supp) 1 SCR 489 = (AIR 1959 SC 459)"].
It may be pertinent to note here that the restriction on transfer of agricultural land to nonagriculturist, under the pain on invalidation of such transfer, as envisaged in the provisions of Sec.63 of the Act, is different from and totally unrelated to the legal capacity of a body corporate to hold agricultural land. Even if it were held in a particular context that a juristic person could legally "hold" or "own" agricultural land, it cannot be construed as a license to transfer the land to such artificial person in spite of its incapacity to personally cultivate the land as required under the Act.
Page 15 of 21 C/CRA/176/2017 CAV JUDGMENT13. In view of the above discussion of the relevant legal provisions and the ratio of the judgments of the Apex Court, it is clear that the impugned circular dated 23.11.1998 was in consonance with the relevant provisions of the Act and the Rules made thereunder and the notices issued on the basis of that circular could not be quashed as the authorities were entitled and required to initiate proceeding under Sec.84C of the Act, even without reference to and reliance upon the impugned circular. In that view of the matter, whether the impugned circular could have retrospective effect or not becomes irrelative as the law as interpreted by the Court must take its own effect and must take its own effect and must be implemented accordingly regardless of any particular interpretation put upon it by the implementing agencies or the date on which such administrative interpretation is handed out for necessary actions in accordance with the Act."
15. Shri Shah also relied upon the judgment delivered by this Court in Civil Revision Application No. 347 of 2016 decided on 510 2016 whereby this Court, after considering Page 16 of 21 C/CRA/176/2017 CAV JUDGMENT the various decisions of Hon'ble The Apex Court has come to the conclusion that if an agreement to sell is executed in contravention of the provisions of Section 63 of the Gujarat Tenancy And Agricultural Lands Act, the Plaintiff could not have any cause of action to file the suit based on such illegal and void agreement to sell.
16. In view of the aforesaid contentions raised by Shri Shah, Learned Advocate for the Petitioners, he submitted that the present Revision Application is required to be allowed and the suit of the Respondent No. 1
- original Plaintiff is required to be rejected under the provisions of Order 7, Rule 11 of the Code of Civil Procedure.
17. On the other hand, Shri Dave, Learned Advocate for the Respondent No.1, has submitted that, after institution of the present suit, the Respondent No.1 - Original Plaintiff Trust has applied to the concerned authority for obtaining necessary permission and, in view of the said fact, the Trial Court has rightly rejected the application of the Petitioners preferred under the provisions of Order 7, Rule 11 of the Code of Civil Procedure.
Page 17 of 21 C/CRA/176/2017 CAV JUDGMENT18. In view of above submissions Shri Dave has relied on the decisions in the case of [1] Chandulal Gordhandas Ranodriya & Ors. vs. State of Gujarat & Ors., 2013 (2) GLR 1788 [2] Shamjibhai Keshavjibhai Kansagra (Patel) vs. Principal Secretary, Revenue Dept. (Appeals) 2010 (0) GLHELHC 224997 [3] Special Civil Application No.11896 of 2004 and allied matters judgment dated 17.3.2009 [4] Patel Maganbhai Kesurbhai since deceased through his heirs vs. Bhogilal Punjabhai Vasava and Ors., 1998 (2) GLR 961.
19. After hearing the contentions of the rival parties; and after perusal of the records of the case, this Court is of the opinion that admittedly the suit lands are agricultural lands for which the agreement to sell is executed in favour of the Respondent No.1 - Trust and Shri Dave, Learned Advocate for the Respondent No.1 - Trust is not able to dispute the fact that the day on which the said agreement to sell is executed necessary and requisite permission has not been obtained by the Respondent No.1 - Trust from the competent authority. The Respondent No.1
- Trust being a Public Trust is not an agriculturist within the purview of Section Page 18 of 21 C/CRA/176/2017 CAV JUDGMENT 2(2) and 2(11) of the Gujarat Tenancy And Agricultural Lands, 1948 and, therefore, the said agreement is exfacie illegal and void in view of the provisions of Section 63(2) of the said Act, and this aspect has already been dealt with in the case of Prathmesh Farms (supra) by the Division Bench of this Court as well as in case of Civil Revision Application No. 347 of 2016, whereby this Court has specifically held that the corporate body or company or any other body cannot be said to be an agriculturist within the meaning of Section 2(11) of the Act and the agreement to sell executed in favour of the said corporate body or company is illegal.
20. I also find much substance in the contention raised by Shri Shah in respect of nonjoining of any of the Trustees on behalf of the Respondent No.1 - Trust at the time of filing of the present suit as the Respondent No.1 - Trust is not a separate legal entity and the same cannot file any suit in absence of any Trustee representing the said Trust and even, in view of the ratio of the judgment of the Full Bench of this Court in case of Atmaram Ranchhodbhai (supra), this Court has specifically held that, in absence Page 19 of 21 C/CRA/176/2017 CAV JUDGMENT of joining of all the Trustees in a suit, the suit itself is not maintainable, and, in the present case, the Respondent No.1 - Trust has not joined even a single Trustee of the Trust as the plaintiff.
21. In view of the aforesaid discussion and the ratio of the decisions of this Court, I am of the opinion that the Respondent No.1 - Trust/Society being a nonagriculturist, has no cause of action to file the present suit based on the alleged agreement to sell which is exfacie void and illegal and the same is in contravention of the provisions of Section 63(2) of the Gujarati Tenancy And Agricultural Lands Act, 1948 and also the suit of the Respondent No.1 is not maintainable in view of the fact that the Respondent No. 1 has not joined any of the Trustees of the Trust, for filing of the present suit and, in view of the ratio of the decisions of this Court in the decision of Atmaram Ranchhodbhai (supra), the suit itself is not maintainable in law and accordingly, the plaint of the present suit preferred by the Respondent No.1 - Trust is required to be rejected under the provisions of Order 7, Rule 11 of the Code of Civil Procedure. Accordingly, the judgment and order passed by Page 20 of 21 C/CRA/176/2017 CAV JUDGMENT the Trial Court below application, Exh.99 is hereby quashed and set aside and consequently, the plaint of the Civil Suit No.2161/2006 pending before the court of the Additional Principal Judge, City Civil Court No.2, Ahmedabad is ordered to be rejected and the present Revision Application preferred by the Petitioners is allowed. Rule made absolute to the aforesaid extent.
(Z.K.SAIYED, J) After pronouncement of the judgment Mr.Sanjay Dave, learned Advocate for the respondent No.1 has requested to stay this order to approach Apex Court. Mr.Vishal Mehta, learned Advocate has strongly opposed the said request. Hence the request for stay of this order is rejected.
(Z.K.SAIYED, J) K.K. SAIYED Page 21 of 21