Gujarat High Court
State Of Gujarat vs Legal Heir Of Thakorbhai Dahyabhai Modi on 3 January, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 9439 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed NO
to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy NO
of the judgment ?
4 Whether this case involves a substantial question NO
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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STATE OF GUJARAT
Versus
LEGAL HEIR OF THAKORBHAI DAHYABHAI MODI
===============================================================
Appearance:
MR BHARAT VYAS AGP for the Petitioner(s) No. 1,2
for the Respondent(s) No. 1
MR NIRUPAM NANAVATY SR ADVOCATE with
MS DISHA N NANAVATY(2957) for the Respondent(s) No. 1.1
MR YASH N NANAVATY(5626) for the Respondent(s) No. 2
MR JAIVIK UDAY BHATT(7319) for the Respondent(s) No. 3
RULE SERVED(64) for the Respondent(s) No. 4
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 03/01/2022
CAV JUDGMENT
1. By way of this petition, the petitioner - State of Gujarat has prayed for following reliefs:
Page 1 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 "A. This Hon'ble Court may be pleased to admit this Special Civil Application.
B. This Hon'ble Court may be pleased to quash and set aside the impugned order dated 05.10.2016 passed by the Gujarat Revenue Tribunal passed in Revision Application No.TEN/ BS/05/2016 and order dated 11.08.2014 passed by the Deputy Collector, Valsad and order dated 08.08.2013 passed by the Mamlatdar & ALT, Valsad.
C. Pending, admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the effect and operation impugned order dated 05.10.2016 passed by the Gujarat Revenue Tribunal passed in Revision Application No.TEN/BS/05/2016.
D. Grant such other and further relief/s as may be deemed just and proper in the circumstances of the case."
2. Heard learned Assistant Government Pleader Mr.Bharat Vyas for the petitioner and learned senior advocate Mr.N.D.Nanavati with learned advocate Ms.Disha Nanavati for Respondent No.1, learned advocate Mr.Yash Nanavati for Respondent No.2 and learned advocate Mr.Jaivik Nanavati for Respondent No.3. By consent of the parties, the matter was taken up for final hearing.
2.1 Rule. Learned advocate Ms.Disha Nanavati, learned advocate Mr.Yash Nanavati and learned advocate Jaivik Bhatt waive service of notice of Rule on behalf of respective respondents.
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3. Brief facts giving rise to the present petition are stated as under:
3.1 One Thakorbhai Dayabhai Modi was the original owner of the land situated at Survey No.51 admeasuring 3 Acres 12 Gunthas and Survey No.52/1 admeasuring 0 Acre 3 Gunthas at Village:Vashiyar, Tal.Dist.Valsad.
3.2 On 26.03.1969, the aforesaid land was sold by the said Thakorbhai Dayabhai Modi (deceased now) to one Shamalsha Girdhari Company, which is a partnership firm. As the said company was not an agriculturist as per Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 ('the Tenancy Act', for short), proceedings were initiated under Section 84(C) by Mamlatdar & ALT, Valsad, which was numbered as Tenancy / 84(C) / 4704 / 1978. In the proceedings, it transpires that Shamalsha Girdhari Company was having agricultural land in a State of Karnataka and not in the State of Gujarat and hence there is a breach of Section 63 of the Tenancy Act and hence transfer of the land in favour of Shamalsha Girdhari Company (Respondent No.2 herein) by deceased Thakorbhai Dayabhai Modi (represented through his legal heir as Respondent No.1 herein) was held to be invalid and hence proceedings under Section 84(C) of the Tenancy Act were initiated.
3.3 In the aforesaid proceedings, learned Mamlatdar Page 3 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 and ALT, Valsad, in his order dated 20.01.1979 categorically observed that as per provisions of Section 84 (c) (2) of Tenancy Act, if both the parties show willingness to restore the original position within a period of three months, as provided in section 84(c) of the Tenancy Act, in that case, such sale or acquisition cannot be said to be invalid. However, in the instant case, as the purchaser of the land gave a specific statement on 20.01.1979 that he was not ready to restore original position in respect of that land in question and on the contrary gave a deposition to the effect that land be vested into the Government and also considering the fact that even the original owner of the land i.e. present Respondent No.1 was also not ready and willing to take back possession of the land, the land was directed to be vested in Government vide order dated 20.01.1979. The aforesaid order was challenged by Respondent No.2 -
Shamalsha Girdhari Company by preferring appeal under Section 74 of the Tenancy Act being Tenancy Appeal No.92 of 1980. Vide order dated 14.10.1981, the learned Deputy Collector (Land Reforms) confirmed the order passed by the Mamlatdar and ALT, Valsad dated 20.01.1979.
3.4 Against the aforesaid order, Respondent No.2 preferred Revision Application under Section 76 of the Tenancy Act being TEN / BS / 236 of 1981 before the Gujarat Revenue Tribunal. Vide order dated 22.11.1984, even Gujarat Revenue Tribunal dismissed the revision Page 4 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 preferred by the present Respondent No.2 and, therefore, present Respondent No.2 preferred writ petition being Special Civil Application No.2943 of 1985 before this Court. The Division Bench of this Court vide order dated 09.01.2001 dismissed the petition as the Division Bench found that there was no substance in the petition, however, while dismissing the petition in last paragraph of the judgment made following observations:
"We, therefore, do not see any substance in the petition. Petition is, therefore, dismissed. Rule is discharged, with no order as to costs. We make it clear that it will be open for the petitioner to apply to the Collector for permission as contemplated by section 63 of the Act, if he is entitled to make such application. If such application is made, it will be decided by the authority in accordance with law."
3.5 As it can be seen from the record that though the order was passed in the year 2001 i.e. 09.01.2001 for more than 11 years nothing happened and ultimately in the year 2012 after a period of 11 years, all of sudden, Mamlatdar and ALT, Valsad issued notice to the Respondent Nos.1 and 2 herein stating that Collector, Valsad has, in his letter dated 03.09.2012, made a reference about the letter received by it from one Mr.Harshadbhai Thakorbhai Modi, who is son of deceased Thakorbhai Modi and who is joined as Respondent No.1/1 in the present petition and pursuant to that letter, the Collector, Valsad directed the Page 5 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 Mamlatdar and ALT, Valsad to initiate proceedings under Section 84(C) of the Act once again and accordingly once again the proceedings under Section 84(c) of the Act were initiated and was registered as Tenancy Case No.84/ C/ 8571 of 2021 by Mamlatdar and ALT, Valsad.
3.6 The Mamlatdar and ALT, Valsad after issuing notice to the original land owner - Respondent No.1 herein as well as original purchaser of the land i.e. Respondent No.2 in the proceedings, and mentioned that, as Respondent Nos.1 and 2 in this petition have shown willingness and were at agreement about the fact that both of them agreed to restore the original position of the land, the learned Mamlatdar and ALT, Valsad vide order dated 08.08.2013 passed an order stating that the sale transaction in favour of Respondent No.2 by Respondent No.1 dated 26.03.1969 was a transaction in favour of non- agriculturist and was held to be invalid. As per the letter by Collector, Valsad dated 03.09.2012 by the Collector, Valsad, a chance was required to be given to the parties to rectify aforesaid invalid transaction and therefore he passed an order directing the Respondent Nos.1 and 2 to restore original position prevailing prior to the date on which sale-deed dated 26.03.1969 was executed within a period of 90 days and in case if the original position is not restored within the period of 90 days than the land in question would once again vest into the government.
Page 6 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 3.7 The aforesaid order was taken into revision under Section 76A of the Act and ultimately vide order dated 11.08.2014 the learned Deputy Collector, Valsad in Tenancy Revision Case No.1 of 2013 while confirming the order dated 08.08.2013 passed by the Mamlatdar and ALT, Valsad held that the Respondent No.2 herein is entitled to get permission under Section 63 of the Tenancy Act in view of the order passed by the Hon'ble High Court and, therefore, order dated 08.08.2013 passed by the Mamlatdar and ALT, Valsad is required to be confirmed.
3.8 Against the aforesaid order dated 11.08.2014 passed by the Deputy Collector, Valsad in Tenancy Revision Case No.01 of 2013, the Government preferred Revision Application before the Gujarat Revenue Tribunal under Section 76 of the Act which was numbered as Revision Application No.TEN / BS/ 5 of 2016 and ultimately vide order dated 05.10.2016 rejected the Revision Application preferred by the State Government and confirmed the order passed by the Deputy Collector, Valsad in Tenancy Case No.01 of 2013 dated 11.08.2014 and the order dated 08.08.2013 passed by the Mamlatdar & ALT in Tenancy Case No.84/ C / 8571/ 12 and hence being aggrieved by the aforesaid order dated 05.10.2016 in Revision Application being No.TEN/ BS /05 of 2016 passed by the Gujarat Revenue Tribunal the present petition is preferred by the State.
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4. Heard learned Assistant Government Pleader Mr.Bharat Vyas for the petitioner, learned senior advocate Mr.N.D.Nanavati with learned advocate Ms.Disha Nanavati for Respondent No.1, learned advocate Mr.Yash Nanavati for Respondent No.2 and learned advocate Mr.Jaivik Bhatt for Respondent No.3.
5.1 Learned Assistant Government Pleader submitted that the original transaction dated 26.03.1969 was held to be invalid as it was found to be in breach of provisions of Section 63 of the Act and accordingly proceedings under Section 84(c) of the Tenancy Act were carried out by Mamlatdar and ALT, Valsad in the year 1978 and the land was directed to be vested in State Government. In those proceedings, it was specifically observed by Mamlatdar and ALT, Valsad that before passing the order vesting the land in question into the State Government, a chance was given to Respondent No.1 as well as Respondent No.2 to restore the original position in respect of land in question, however, as stated in the order dated 20.01.1979 the Respondent No.2 herein gave deposition on 20.01.1979 that he was not ready to restore the position of the land in question nor the Respondent No.1 was ready to accept the possession of the land in question, the land was directed to be vested in State Government. Ultimately, though the aforesaid order dated 20.01.1979 was challenged upto this Court, while dismissing the petition preferred by Respondent No.2 herein the Division Bench of this Court granted permission to Respondent No.2 -
Page 8 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 purchaser of the land who was petitioner in that petition to apply to the Collector for permission as contemplated under Section 63 of the Tenancy Act if he is entitled to make such application.
5.2 Learned Assistant Government Pleader Mr.Vyas submitted that this Court permitted the purchaser of the land in question i.e. Respondent No.2 herein to apply for permission as contemplated under section 63 of the Tenancy Act and that too only in case if he was entitled to make such application. The Court dismissed the petition preferred by Respondent No.2 who was petitioner in that petition. Considering the fact that entire proceedings which took place in the year 1978 was in respect of section 84(C) of the Act and has while dismissing the petition preferred by Respondent No.2 as petitioner of that petition, the Division Bench of this Court did not disturb the order passed by the Mamlatdar and ALT, Valsad dated 20.01.1979 which was confirmed by the Deputy Collector and the Gujarat Revenue Tribunal thereafter and, therefore proceedings under Section 84
(c) of the Act had already attained finality. The liberty was granted to the purchaser of the land i.e. Respondent No.2 herein only to the extent of making application under Section 63 of the Act and that also only if he was entitled to make such application. The learned Mamlatdar and ALT, the Deputy Collector as well as Gujarat Revenue Tribunal was required to strictly adhere to observations made by Division Bench of this Court and was expected to Page 9 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 follow the directions given by the Division Bench strictly and in its true sense without interpreting it in their own manner. While dismissing the petition being Special Civil Application No.2943 of 1985, the Division Bench of this Court, in its judgment dated 09.01.2001, did not give any liberty either to Respondent No.1 or to Government Authorities i.e. Collector, Deputy Collector and Mamlatdar and ALT to initiate proceedings under Section 84(c) of the Act. Despite , that Mamlatdar once again though the proceedings initiated under Section 84(c) of the Act had already attained finality, initiated proceedings under Section 84(c) of the Act on the basis of a letter written by Collector, Valsad and, therefore, entire proceedings carried out by Mamlatdar and ALT, Valsad in the year 2012 under Section 84 (c) of the Act are void abinitio and, therefore, the order dated 08.08.2013 passed by the Mamlatdar and ALT, Valsad in Case No.84 / C/ 8571 / 12 as well as all the proceedings which have taken place pursuant to the aforesaid proceedings were bad as per law and are without any authority and in gross violation of order passed by the Division Bench of this Court dated 09.01.2001 passed in Special Civil Application No.2943 of 1985.
5.3 Learned Assistant Government Pleader further submitted that as per Section 84(C) of the Tenancy Act, a period of three months is granted to the parties to rectify such invlaid transaction by restoring the original position of the land. That exercise was already carried out and Page 10 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 learned Mamlatdar and ALT, Valsad, in its order dated 20.01.1979 specifically observed that none of the parties have shown any willingness to restore original position in respect of land for which sale transaction between the parties were held invalid. As the matter is not remanded back by the Division Bench of this Court while passing the order dated 09.01.2001 passed in Special Civil Application No.2943 of 1985 to Mamlatdar and ALT, it was not open for the Mamlatdar and ALT to consider subsequent agreement arrived at between the parties to the sale transaction of 1969 which was already held to be invalid transaction and hence in the year 2012 even if parties were ready to restore the original position of land such act of permitting parties to reconsider earlier decision after considerable delay is not permitted under the law and therefore also impugned orders which are passed without taking into consideration these aspects are bad as per law and deserves to be quashed and set aside.
5.4 Learned Assistant Government Pleader Mr.Vyas submitted that though the Respondent No.3 has purchased the land from Respondent No.1 and she may be an agriculturist but as proceedings under Section 84(6)(c) of the Tenancy Act were never quashed and set aside and matter was never remanded back to the Mamlatdar and ALT, Vadodara while the Division Bench of this Court had passed the order, the land deemed to have remained vested in government as the order dated Page 11 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 20.01.1979 passed by the Mamlatdar and ALT, Valsad and proceedings initiated thereupon were never quashed but on the contrary confirmed by the Division Bench of this Court while dismissing the petition and, therefore, when the land remained to be vested with the government, Respondent No.1 had no authority to sell the land to Respondent No.3 since the Respondent No.1's title itself was defective he could not have sold the land to Respondent No.3 and could not have passed on a better title in favour of Respondent No.3 than what he himself had and, therefore, entire transaction between Respondent No.1 and Respondent No.3 also is invalid.
5.5 Learned Assistant Government Pleader Mr.Bharat Vyas thereafter submitted that the Court while dismissing Special Civil Application No.2943 of 1985 vide judgment dated 09.01.2001 had granted liberty only to the petitioner of that petitioner i.e. Respondent No.2 herein and purchaser of the land in question to make an application for permission under Section 63 of the Act only in case if he is entitled. In the instant case, Respondent No.2 has never sought any permission from the Collector but despite that the Collector, on the basis of letter written by Respondent No.1, has directed Mamlatdar and ALT, Valsad to initiate proceedings under Section 84(c) of the Tenancy Act which is in gross violation of the directions issued by Division Bench of this Court vide judgment dated 09.01.2001 in Special Civil Application No.2943 of 1985 and therefore also impugned Page 12 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 order deserves to be quashed and set aside.
5.6 By making aforesaid submissions learned Assistant Government Pleader Mr.Vyas prayed for quashing and setting aside the order passed by the Mamlatdar and ALT, Valsad, the order passed by the Deputy Collector and the order passed by the Gujarat Revenue Tribunal and prayed that the petition be allowed.
6.1 Per contra, learned senior advocate Mr.N.D.Nanavati with learned advocate Ms.Disha Nanavati and learned advocate Mr.Yash Nanavati for Respondent Nos.1 and 2 submitted that all the authorities have passed the order to ensure that object of the Act is achieved. He submitted that while dismissing the petition, the Division Bench of this Court had, vide judgment dated 09.01.2001 in Special Civil Application No.2943 of 1985, permitted Respondent No.2 to make an appropriate application under Section 63 of the Tenancy Act for seeking permission under Section 63 of the Act. However, thereafter as the parties were agreed to restore the original position of the land, accordingly the original position of the land was restored pursuant to the order dated 08.08.2013 passed by the Mamlatdar and ALT as the Respondent No.2 herein never parted with the possession of the land which also can be seen from the affidavit filed by Respondent No.3. In support of this contention, learned senior advocate Mr.Nanavati drew Page 13 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 attention of this Court to para:10 of the affidavit-in-reply filed on behalf of Respondent No.2 stating that at no point of time the possession of the land was taken by State of Gujarat and hence if the order directing the land vesting into Government was passed in the year 1979 and even thereafter for about 33 years the possession of the land in question remained with Respondent No.2 and ultimately on 21.08.2013 the possession of the land in question was handed over to Respondent No.1 by Respondent No.2 and hence as the land was once again given back to the original owner of the land and that also after the order passed by the Mamlatdar and ALT, Valsad dated 08.08.2013, that itself shows that ultimately the aforesaid order dated 08.08.2013 passed by the Mamlatdar and ALT, Valsad was passed to ensure that the object of the Act is fulfilled and land of agriculturist remains with an agriculturist.
6.2 Learned senior advocate Mr.Nanavati submitted that what is paramount is to see that object of the Act is achieved. He further submitted that when both the parties, as agreed, were ready and shown willingness to restore the original position of the land, State is not justified in insisting for vesting the land into the Government as if despite the fact that parties have agreed to restore original post of land in question which was prevailing before the transaction dated 26.03.1969 which was held to be invalid and if the order passed by Page 14 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 the Mamlatdar and ALT, Valsad dated 08.08.2013, the Deputy Collector dated 11.08.2014 and the order dated 05.10.2016 passed by the Gujarat Revenue Tribunal are quashed, in that case, it would ultimately frustrate the purpose for which the Act is enacted. Learned senior advocate Mr.Nanavati from the record pointed out that while passing the order dated 08.08.2013, the Mamlatdar and ALT, Valsad directed the parties to restore the original position of the land within a period of three months from the date of the order and the parties have restored the original position of the land in question within a period of three months from the date of the order i.e. 08.08.2013 and, therefore, now the parties have acted in accordance with direction given by the Mamlatdar and ALT, Valsad and hence now it is not open for the State Government to object to such transaction more particularly when after the original position of the land in question was restored and the Respondent No.1 herein has further sold the land in favour of Respondent No.3 herein by way of registered sale-deed dated 09.07.2015 No.3961 of 2015 and, therefore, now the equities are created in favour of Respondent No.3 pursuant to the order passed by the Mamlatdar and ALT, Valsad dated 08.08.2013 and Deputy Collector dated 11.08.2014 and, therefore, at this juncture, after the equities are created in favour of Respondent No.3 it is not open for the Government to question the decision of Mamlatdar and ALT, Valsad and the orders passed pursuant to the Page 15 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 aforesaid proceedings at belated stage and therefore also the petition is required to be dismissed.
6.3 Learned senior advocate Mr.Nanavati also raised objection in respect of delay in filing of the present petition as according to him when the order, which is under challenge, was passed on 05.10.2016, the present petition was filed almost after two years i.e. in the year 2018 and notice was issued on 27.06.2018 which shows that there is delay of almost twenty months in filing of the present petition and, therefore, according to learned senior advocate Mr.Nanavati, petition is required to be dismissed on the ground of delay as well. Thereafter, learned senior advocate Mr.Nanavati also drew attention of the Court that petition is filed by State of Gujarat through Deputy Collector, Valsad and Mamlatdar and ALT, Valsad those are the authorities whose orders are under challenge by way of this petition and who have adjudicated the issue earlier and, therefore, present petition ought not to have been filed by them and, therefore, present petition is not maintainable.
6.4 It was submitted that the Respondent No.3 is the bona fide purchaser and she has purchased the land on the basis of order passed by the Mamlatdar and ALT as well as the order passed by the Deputy Collector, which were passed on 08.08.2013 and 11.08.2014 respectively. It is thereafter that the Respondent No.3 purchased the land in question by way of registered sale-deed dated Page 16 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 09.07.2015. The order passed by the Deputy Collector was passed on 11.08.2014 whereas the Revision Application before the Gujarat Revenue Tribunal being TEN / BS/ 5 / 2016 was filed in the year 2016.
Interregnum period during which there was no litigation pending the Respondent No.3 purchased the land in question from Respondent No.1 and now the equities are created in favour of Respondent No.3 who is bona fide purchaser and therefore also the petition preferred by the State after delay of two years is required to be dismissed.
6.5 In view of the above submissions, learned senior advocate Mr.N.D.Nanavati prayed for dismissal of the present petition.
7. Learned advocate Mr.Jaivik Uday Bhatt for Respondent No.3 submitted that the Respondent No.3 is bona fide purchaser of the land in question which was restored in favour of Respondent No.1 pursuant to the order passed by the Mamlatdar and ALT, Valsad dated 08.08.2013 and subsequently confirmed by the Deputy Collector, Valsad by order dated 11.08.2014 and in view of those two concurrent orders, the petitioner purchased the land from Respondent No.1 vide registered sale deed dated 09.07.2015 and she is an agriculturist and, therefore, such sale cannot be said to be invalid and, therefore, petition requires to be dismissed.
8.1 Considering the submissions advanced by learned Page 17 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 advocates for the respective parties and considering the material available on record, it is clear that Respondent No.2 was never an agriculturist of State of Gujarat as it is not in dispute that he never had an agricultural land in the State of Gujarat but was holding agricultural land in State of Karnataka. Another undisputed fact as emerges from the record is that at the relevant point of time when for the first time Section 84(C) of the Act proceedings were initiated by Mamlatdar and ALT, Valsad, the present Respondent Nos.1 and 2 both were not willing to restore the original position of the land in question as the sale transaction of land between Respondent No.1 and 2 was held to be invalid in view of provisions of Section 63 of the Act. As both the Respondent Nos.1 and 2 were not willing to restore the original position of the land vide order dated 20.01.1979, the Mamlatdar and ALT, Valsad passed an order vesting the land in question to Government. The aforesaid order dated 20.01.1979 was subsequently carried before the Deputy Collector, Gujarat Revenue Tribunal and ultimately to Division Bench of this Court. All the authorities as well as Division Bench of this Court confirmed the aforesaid order dated 20.01.1979 vesting the land into the government by rejecting subsequent appeals and petition preferred by the present Respondent No.2 who happens to be purchaser of the land in question pursuant to the sale-deed dated 26.03.1969. Therefore, when Division Bench of this Court dismissed the petition preferred by Respondent No.2 Page 18 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 herein had confirmed the order passed by the Mamlatdar and ALT, Valsad dated 20.01.1979 vesting the land into the Government. So the order dated 20.01.1979 passed by the Mamlatdar and ALT, Valsad vesting the land into the government was never disturbed by Division Bench of this Court nor the matter was ever remanded back to Mamlatdar and ALT for initiation of proceedings under Section 84(c) of the Act afresh. The only liberty granted by Division Bench vide judgment dated 09.01.2001 in Special Civil Application No. 2943 of 1985 was in the form of liberty granted in favour of Respondent No.2 to apply to Collector for seeking permission under Section 63 of the Act only if he is entitled to make such application. This direction would make it crystal clear that it was open only for Respondent No.2 to make limited effort by making afresh application to Collector as contemplated under Section 63 of the Act only in case if he is entitled to make such application. Section 63 of the Act reads as under:
"63. Transfers to non-agriculturist barred.-
(1) Save as provided in this Act, -
(a) no sale (including sales in execution of a decree of Civil Court for recovery of arrears of land revenue or for sums recoverable as arrears of land revenue), gift, exchange or lease of any land or interest therein, or
(b) no mortgage of any land or interest therein, in which the possession of the mortgaged property is delivered to the mortgagee, [or]
(c) no agreement made by an instrument in Page 19 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 writing for the sale, gift, exchange, lease or mortgage of any land or interest therein.] shall be valid in favour of a person who is not an agriculturist. [or who being an agriculturist cultivates personally land not less than the ceiling area whether as an owner or tenant or partly as owner and partly as tenant or who is not an agricultural labourer]:
Provided that the Collector or an officer authorised by the [State] Government in this behalf may grant permission for such sale, gift, exchange, lease or mortgage, [ or for such agreement] on such conditions as may be prescribed.
[provided further that, no such permission shall be granted, where land is being sold to a person who is not an agriculturist for agricultural purpose, if the annual income of such person from other sources exceeds five thousand rupees.] [(1A) The State Government may, by notification in the Official Gazette, exempt from the provisions of sub-section (1), for the transfer of any agricultural land to any public trust established for the charitable purpose and which is non-profitable in nature, for the use of such land in the field of health and education, subject to such conditions as may be specified therein.] (2) Nothing in this section shall be deemed to [prohibit the sale, gift, exchange, or lease, or the agreement for the sale, gift, exchange or lease of] a dewelling house or the site thereof or any land appurtenant to it in favour of an agricultural labourer or an artisan [ or a person carrying on any allied pursuit].
(3) Nothing in this section shall apply or be Page 20 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 deemed to have applied to a mortgage of any land or interest therein effected in favour of a co-operative society as security for the loan advanced by such society [ or any transfer declared to be a mortgage by a court under section 24 of the Bombay Agricultural Debtors' Relief Act, 1947 (Bom.XXVIII of 1947),]].
[(4) Nothing section 63A shall apply to any sale made under sub-section(1).]"
8.2 Bare reading of Section 63 of the Act would indicate that Section 63 provides for transfer of land in favour of non-agriculturist is barred and, therefore, such sale would be considered as invalid sale, however, in certain circumstances subject to fulfilling certain conditions even if the sale transaction is made in favour of non- agriculturist is permitted by first proviso of Section 63 (i)
(c) of the Act. The first proviso of Section 63(i)(c) of the Act provides that Collector or an officer authorised by State Government in this behalf may grant permission for such sale, gift, - lease or mortgage for such agreement or such conditions as may be prescribed so. Therefore, section 63 provides that it is Collector or an authorised officer on behalf of State Government who is competent to grant permission for such sale which is made by agriculturist in favour of non-agriculturist and, therefore, the Division Bench of this Court granted liberty in favour of Respondent No.2 only who was non-agriculturist and purchaser of the land in question which was agricultural land and permitted him to make an application to Collector under Section 63 of the Act for the purpose of Page 21 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 regularising such sale. Now, if we look at second proviso to Section 63(i) (c) of the Act by way of that proviso it is mandated that no such permission shall be granted where land is being sold to a person who is not an agriculturist for agriculture purpose if his annual income from other sources exceeds Rs.5,000/-.
8.3 Section 63(i)-A (2) (3) and also as can be seen from Section 63 reproduced hereinabove specify various circumstances / persons or legal entities in whose favour if such sale takes place can be said to be valid sale or the cases or class of persons or legal entities with respect to whom this particular section shall not apply and, therefore, while dismissing Special Civil Application No.2943 of 1985 vide order dated 09.01.2001, liberty was granted in favour of petitioner of that petition (respondent no.2 herein) only and that too for a limited purpose of regularising the sale transaction from an agriculturist in favour of non-agriculturist i.e. Respondent No.2 on fulfillment of provisions of Section 63 of the Act. It was specifically stated that only in case if he is entitled to make such application as by virtue of Section 63 of the Act transfer of the land to a non-agriculturist is barred but in certain cases subject to fulfillment of the conditions Collector is empowered to grant permission to such persons and regularise such sale even if it is in favour of a non-agriculturist.
8.4 It seems that inspite of aforesaid clear-cut provisions Page 22 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 of Section 63 of the Act as well as absolute clear and unambiguous direction issued by the Division Bench of this Court while granting liberty in favour of petitioner of that petition (respondent no.2 herein) only, it seems that for some extraneous reasons the aforesaid directions were misconstrued by Collector, Valsad. The judgment dated 09.01.2005 clearly indicates that it was in respect of rights of the Respondent No.2 who was petitioner in that petition and was in respect of sale transaction dated 26.03.1969 which was held to be invalid and as the proceedings under Section 84(c) of the Act were carried out and vide order dated 20.01.1969 the land was directed to be vested into Government. The aforesaid order dated 20.01.1969 was ultimately challenged and challenge was carried upto Division Bench of this Court. Though it was never held by Division Bench of this Court that proceedings under Section 84(c) of the Act are required to be initiated once again, the Division Bench of this Court neither quashed the order passed by the Mamlatdar and ALT dated 20.01.19679 and all other orders confirming the above order passed by the Deputy Collector and Gujarat Revenue Tribunal nor at any point of time the aforesaid proceedings were held to be erroneous or contrary to the provisions of law nor the matter was remanded back to Mamlatdar and ALT. It is really strange that Collector has misconstrued the liberty granted in favour of Respondent No.2 to have granted permission in respect of Respondent No.1 though liberty Page 23 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 was granted only in respect of Respondent No.2 who was petitioner of that petition. Further, Division Bench of this Court has vide judgment dated 09.01.2001 dismissed the petition preferred by Respondent No.2 herein and thereby confirmed the order passed by the Gujarat Revenue Tribunal in Revision Application No.TEN / BA / 236 of 1981 whereby Gujarat Revenue Tribunal and confirmed the order passed by the Deputy Collector as well as the order passed by the Mamlatdar & ALT, which were the orders vesting the land into the Government pursuant to section 84(c) proceedings of the Act.
8.5 Therefore while dismissing the petition, the Division Bench of this Court has granted limited liberty in favour of Respondent No.2 only for applying to Collector, Valsad for regularisation of the aforesaid invalid sale and that also only in case if he is entitled to make that application. The record indicates that Respondent No.2 never made any application and application was submitted by Respondent No.1 through Collector, Valsad, after a period of more than 11 years as the judgment was delivered by Division Bench of this Court on 09.01.2001 whereas Collector, Valsad directed the Mamlatdar and ALT, Valsad to initiate proceedings under Section 84(c) of the Act vide his letter dated 03.09.2012. The Collector, Valsad, as it seems, has misunderstood the direction issued by the Division Bench of this Court and on the basis of the letter written by Respondent No.1 directed the Mamlatdar and ALT to initiate proceedings under Page 24 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 Section 84(c) of the Act once again despite the fact that those proceedings had attained finality and liberty was granted in favour of Respondent No.2 subject to his entitlement to make application under Section 63 of the Act and not under Section 84 (c) of the Act. Therefore fresh initiation of proceedings under Section 84(c) of the Act by the Mamlatdar and ALT pursuant to the letter dated 09.03.2012 by the Collector is bad and without any basis. In fact, the proceedings under Section 84(c) carried out by Mamlatdar and ALT, Valsad and decided on 20.01.1979 and all further proceedings arose out of the order dated 20.01.1979 were confirmed by Division Bench and, therefore, in absence of those orders having been quashed or any specific direction remanding matter back for carrying out fresh proceedings in respect of 84(c) of the Act were absolute uncalled for and contrary to the judgment dated 09.01.2001 passed by the Division Bench of this Court in Special Civil Application No.2943 of 1985.
8.6 Secondly, though the directions were given by the Division Bench of this Court vide judgment dated 09.01.2001 were in favour of Respondent No.2 for more than 11 long years Respondent No.2 who was petitioner of that petition and purchaser of the land in question never applied to Collector, Valsad seeking any permission under Section 63 of the Act as per the liberty granted by Division Bench of this Court. After long delay of more than 11 years, all of sudden, Respondent No.1 Page 25 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 approached Collector, Valsad and on the basis of his letter Collector, Valsad without assigning any reason, straight way, directed the Mamlatdar and ALT, Valsad to carry out fresh proceedings under Section 84(c) of the Act. It is surprising that none of the authorities i.e. Collector or Deputy Collector while directing Mamlatdar and ALT to carry out fresh proceedings under Section 84(c) of the Act or Mamlatdar and ALT while conducting proceedings under Section 84(c) of the Act or Deputy Collector, Valsad and Gujarat Revenue Tribunal completely ignored the aspect of delay and proceeded with the application made by Respondent No.1 - original owner of the land and proceeded as if there were no 84(c) proceedings in the past and all the three authorities have passed an order in gross ignorance of earlier orders and permitted the parties to restore original position of the land in question including the fact that earlier this very party had shown own willingness to restore the original position in the year 1979. Although subsequently they have shown their willingness to restore the original position. Such willingness has come almost after 32 years from the year 1979 and after more than 11 years after the Division Bench dismissed the petition preferred by Respondent No.2.
8.7 It is true that while dismissing the petition preferred by Respondent No.2 herein, the Division Bench did not impose any time line for making application seeking permission upon Respondent No.2, however, this Court Page 26 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 cannot lose sight to the fact that Respondent No.2 never made application under Section 63 of the Act seeking regularisation of aforesaid sale which was held to be invalid nor at any point of time it is canvassed that the Respondent No.2 was entitled to make such application. In fact, the Division Bench of this Court had not reserved any liberty in favour of Respondent No.1 - original owner of the land there was was no question of considering any application that was made by Respondent No.1. It seems that the First the Collector, Valsad overlooked the aforesaid aspect and thereafter all the authorities have also overlooked this vital aspect and proceeded with 84(c) proceedings which were never permitted by the Division Bench of this Court to take place once again after earlier proceedings under Section 84(c) of the Act had attained finality before the Division Bench of this Court as the petition preferred by Respondent No.2 was dismissed by judgment dated 09.01.2001.
8.8 As far as submission made by learned advocate senior advocate Mr.N.D.Nanavati in respect of the fact that ultimately all the three authorities have while allowing Respondent No.1 and 2 to restore the original position of the land have enacted in furtherance in achieving the object of the Act is absolutely misconceived. The Division Bench of this Court never gave any direction to carry out proceedings under Section 84(c) of the Act once again. It is true that object of the Act behind Sections 63 and 84(c) of the Act is to ensure that land of Page 27 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 agriculturist remains with the agriculturist only but while granting liberty and while dismissing the petition preferred by Respondent No.3 the Division Bench of this Court was well aware about the fact that what was under
challenge before the Division Bench were the orders passed under Section 84(c) of the Act and hence when the petition was dismissed by Division Bench those proceedings had already attained finality and, therefore, once Section 84(c) proceedings have attained finality, no authorities can initiate fresh proceedings under Section 84(c) unless permitted by the Court and howsoever the object may be, such argument between the parties could not have been accepted. When liberty was specifically reserved in favour of Respondent No.2 and that also to make an application under Section 63 of the Act subject to his entitlement, authorities below were not justified in carrying out proceedings under Section 84(c) of the Act and, therefore, once the 84(c) proceedings were decided and land was vested in the Government, all subsequent proceedings initiated in the year 2012 on the basis of letter written by Collector, Valsad are without jurisdiction and are not sustainable in eyes of law.
8.9 As far as submission of learned senior advocate Mr.Nanavati in respect of delay is concerned, the petitioner - State has explained the delay in para:J, page:8 and 9 of memo of petition whereby the State has stated that the delay on the ground of administrative reasons like seeking permission to file writ petition etc. Page 28 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 and, therefore, as the delay is sufficiently explained, the contention of learned senior advocate Mr.Nanavati in respect of delay in filing the petition is rejected.
8.10 As far as the maintainability of petition filed by the Deputy Collector, Valsad and Mamlatdar & ALT, Valsad is concerned, in ground:j of the petition it is stated that the Revenue Department had granted permission to the Collector, Valsad to file writ petition before this Court and the Collector, Valsad, in turn, had authorised the Deputy Collector, Valsad for filing the petition and hence even that objection also could not stand.
8.11 The submissions made by learned senior counsel Mr.Nanavati for the Respondent No.3 in respect of the fact that on 09.07.2015 the land was purchased by Respondent No.3, now the equities are created in favour of Respondent No.3, Respondent No.3 is bona fide purchaser as when he purchased the land in question on 09.07.2015 there was no litigation pending are concerned, it is true that the date on which the land in question was sold by Respondent Nos.1 to Respondent No.3 by way of registered sale-deed, no case was pending on the date of registration of sale-deed i.e. on 09.07.2015 whereas the Deputy Collector passed an order on 11.08.2014 and the Revision before the Gujarat Revenue Tribunal, as it seems from the record, was preferred in the year 2016, however, though the Respondent No.3 purchased the land when there was no litigation pending Page 29 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 before any authority, the predecessor-in-title of the land in question Respondent No.1 became the owner of the land in question by way of proceedings which were not in accordance with law as the Division Bench of this Court never permitted any fresh proceeding under Section 84(c) of the Tenancy Act and therefore also when the predecessor-in-title of the land in question had become owner of the land by virtue of the proceedings which were not permitted as per law, by confirming the sale in favour of Respondent No.3 an illegality committed by the authority cannot be permitted to be regularised impliedly.
8.12 As far as the argument of learned advocate Mr.Jaivik Bhatt is concerned that he is bona fide purchaser of the land and has purchased the land pursuant to the order passed by the Mamlatdar and ALT, dated 08.08.2013, which is confirmed by Deputy Collector, Valsad vide order dated 11.08.2014, as he has purchased the land in the year 2015 is concerned, since the entire proceedings under Section 84(c) of the Act initiated by Mamlatdar and ALT, Valsad based upon order of the Collector, Valsad dated 03.09.2012 are held to be bad, contrary to law and without jurisdiction, any transaction or any sale-deed or assignment of the land pursuant to such proceedings and order passed thereunder can be said to be void transaction and, therefore, those arguments also cannot sustain.
9. In view of the above discussion, the petition Page 30 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022 C/SCA/9439/2018 CAV JUDGMENT DATED: 03/01/2022 deserves to be allowed and the same is allowed. The impugned order dated 05.10.2016 passed by the Gujarat Revenue Tribunal, the order dated 11.08.2014 passed by the Deputy Collector, Valsad and the order dated 08.08.2013 passed by the Mamlatdar and ALT, Valsad are quashed and set aside. Rule is made absolute. Direct service permitted.
(NIRZAR S. DESAI,J) 9.1 After the aforesaid judgment is pronounced today, learned Senior Advocate Mr. Nirupam Nanvaty states that, in this petition, by way of interim relief granted vide order dated 27.06.2018 and which is in operation till today, status quo in respect of the land in question was directed to be maintained. Learned senior advocate Mr.Nanavaty requests that the said interim relief be extended for a period of four weeks.
9.2 In view of the request made by learned senior advocate Mr.Nanavaty, parties are directed to maintain status quo for a period of four weeks from today.
(NIRZAR S. DESAI,J) MISHRA AMIT V. Page 31 of 31 Downloaded on : Sun Apr 24 08:03:27 IST 2022