Gujarat High Court
State Of Gujarat Through Secretary vs Anil Starch Products Ltd Through ... on 14 July, 2021
Author: Vaibhavi D. Nanavati
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/CA/566/2019 JUDGMENT DATED: 14/07/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CIVIL APPLICATION NO. 566 of 2019
In F/LETTERS PATENT APPEAL NO. 6552 of 2019
With
F/LETTERS PATENT APPEAL NO. 6552 of 2019
In
SPECIAL CIVIL APPLICATION NO. 1112 of 2011
With
R/CIVIL APPLICATION NO. 3521 of 2019
With
F/LETTERS PATENT APPEAL NO. 32204 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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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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STATE OF GUJARAT THROUGH SECRETARY
Versus
ANIL STARCH PRODUCTS LTD THROUGH GENERAL MANAGER
==========================================================
Appearance:
CA No.566 of 2019 with LPA No.6552 of 2019
MR CHINTAN DAVE, AGP for the Applicant(s) No. 1
for the Respondent(s) No. 2
. for the Respondent(s) No. 7
Advocate Not Given for the Respondent(s) No. 7
MR SN SOPARKAR, SENIOR ADVOCATE with MR AMAR N BHATT(160)
for the Respondent(s) No. 4
Page 1 of 40
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C/CA/566/2019 JUDGMENT DATED: 14/07/2021
MR MOUSAM R YAGNIK(3689) for the Respondent(s) No. 5,6,7.1
MR NIRAD D BUCH(4000) for the Respondent(s) No. 5,6,7.1
RULE SERVED(64) for the Respondent(s) No. 1,3
CA No.3521 of 2019 with LPA No.32204 of 2019
MR MOUSAM R YAGNIK for Applicant No.2 and 3
MR NIRAD BUCH with MRS BHAVINI N. BUCH for Applicant No.1
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CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 14/07/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. This Appeal under Clause 15 of the Letters Patent is at the instance of the original writ-applicant (State of Gujarat) and the Letters Patent Appeal No.32204 of 2019 15 is at the instance of the original owners (original respondents Nos.5 to
7) and is directed against the judgment dated 4.9.2018 passed by a learned Single Judge of this Court in the Special Civil Application No.1112 of 2011 declining to entertain the writ- application and rejecting the same.
2. Since the challenge involved in both the appeals is to the self same judgement passed by the learned Single Judge those were taken up for hearing analogously and are being disposed of by this order.
3. Facts giving rise to these appeals are summarized as under :-
3.1 The appellant-State filed the Special Civil Application Page 2 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 No.1112 of 2011 challenging the order dated 8.8.2008 passed by the Gujarat Revenue Tribunal in the Revision Application No.TEN/D/A/349/99 whereby the Gujarat Revenue Tribunal (hereinafter referred to as 'the GRT' for short) allowed the revision application filed by the respondents Nos.1 to 4 and confirmed the order passed by the Mamlatdar & ALT in Ganot Case No.39 of 1992 dated 27.10.1998 and thereby setting aside the order passed by the Dy. Collector, Gandhinagar in Ganot Appeal No.SR/7/99 dated 19.6.1999.
3.2 The respondents Nos.1 to 4 were holding the land termed as "Khetar-ni-Jamin" from 26.6.1946 before the Bombay Tenancy & Agricultural Land Act, 1948 - now known as 'Gujarat Tenancy & Agricultural Land Act, 1948 came into force. The respondents Nos.1 to 4 purchased the land in question from the respondents Nos.5 to 7 (original owners) by Registered Sale Deeds dated 23.8.1985, 27.8.1985, 28.8.1985 and 10.9.1985 respectively.
3.3 The Mamlatdar and ALT instituted proceedings under Section 84C by registering Case No.4827 to 4831/1985 against the respondents Nos.1 to 4 by issuing notice dated 2.11/12.1985 on the ground that the transaction entered into between the respondents Nos.1 to 4 and original owner respondents Nos.5 to 7 was in contravention of Section 63 of the Tenancy Act. On 10.2.1986 the Mamlatdar and ALT dropped the proceedings against the respondents Nos.1 to 4 on Page 3 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 the ground that the Company was owning agricultural land at the time of entering into the sale deeds and held the said transactions to be valid.
3.4 The order passed by the Mamlatdar and ALT dated 10.2.1986 was taken into Revision (suo motu) by the Dy.
Collector, Gandhinagar under Section 76A of the Tenancy Act vide order dated 1.1.1992. The Dy. Collector remanded the matter to the Mamlatdar and ALT for adjudication vide order dated 1.1.1992.
3.5 On 27.10.1998, the Mamlatdar and ALT held the said transactions to be valid transactions. On 19.6.1999 the respondents Nos.5 to 7 (original owners) filed an Appeal No.Tenancy/Appeal/SR/7/99 before the Dy. Collector who by order dated 19.6.1999 quashed the order passed by the Mamlatdar and ALT and remanded the matter to the Mamlatdar and ALT for fresh adjudication.
3.6 The respondents Nos.1 to 4 filed Revision Application No.TEN/D/A/349/99 before the GRT. The GRT passed an order allowing the revision application filed by the respondents Nos.1 to 4 by order dated 8.8.2008 quashing and setting aside the order passed by the Dy. Collector dated 27.101998.
3.7 The respondents Nos.5 to 7 (original owners) had filed the Special Civil Application No.15451 of 2010 and the State Page 4 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 filed the Special Civil Application No.1112 of 2011 challenging the order passed by the GRT dated 8.8.2008.
3.8 By order dated 1.4.2011 the learned Single Judge disposed of the Special Civil Application No.15451 of 2010 by keeping it open to the respondents Nos.5 to 7 to raise all their contentions in the Special Civil Application No.1112 of 2011 which was filed by the State of Gujarat. The learned Single Judge by order dated 1.4.2011 disposed of the Special Civil Application No.15451 of 2010 and passed the following order :-
"1. By way of this petition under Article 226 & 227 of the Constitution of India, the petitioners have prayed for an appropriate writ, direction and / or order quashing and setting aside the impugned order dated 8.8.2008 passed by the Gujarat Revenue Tribunal passed in TEN.BA/349/1999.
2. Considering the fact that the very order is challenged by the State of Gujarat and Another by way of filing Special Civil Application No.1112 of 2011, in which the petitioners are also party respondent nos. 5 to 7, without further entering into the merits of the case and expressing anything on merits, the present Special Civil Application is disposed of without prejudice to the rights and contentions of the respective parties in the aforesaid Special Civil Application No.1112 of 2011 and with a observation that it will be open for the petitioners to raise all contentions which are available to them and which are raised in the present Special Civil Application against the impugned order, at the time of hearing of the Special Civil Application No.1112 of 2011 and the same shall be considered by this Court in accordance with law and on merits and disposal of the present Special Civil Application shall not come in the way of the petitioner in making the submission against the impugned order passed by the Gujarat Revenue Tribunal dated 8.8.2008 passed in TEN.BA/349/1999. With this, present Special Civil Application is disposed of."Page 5 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022
C/CA/566/2019 JUDGMENT DATED: 14/07/2021 3.9 The learned Single Judge by an order dated 4.9.2018
dismissed the Special Civil Application No.1112 of 2011 filed by the appellant - State.
4. Being aggrieved and dissatisfied by the judgment and order dated 4.9.2018 passed by the learned Single Judge the appellant State filed the Letters Patent Appeal No.6552 of 2019 alongwith Civil Application No.566 of 2019 for condonation of delay of 140 days in filing the letters patent appeal and the respondents Nos.5 to 7 (original owners) filed the Letters Patent Appeal No.32204 of 2019 alongwith civil application for condonation of delay of 362 days in filing the letters patent appeal.
5. The learned Single Judge while rejecting the writ application made the following observations in paragraphs 7 to 8 :-
"7. Regard being had to the above submissions, the main issue which is raised by the petitioner-State as well as respondent nos.5 to 7 who are the original sellers of the land in question is that a company cannot be an agriculturist. It is submitted that it is the against the very tenor of Section 63 of the Tenancy Act. In support, they have heavily relied upon the decision rendered by the Division Bench of this Court in case of Prathmesh Farms Pvt. Ltd. and another (supra). As against this, if the case of respondent nos.1 to 4, who are the original purchasers of land in question is seen, it is submitted that the respondent nos.1 to 4-companies were/are already holding the agricultural land prior to such enactment and the present land in question is purchased by them by way of registered sale deeds paying due consideration.
7.1 In this regard, if the chronology of facts are seen, the respondent nos.1 to 4-Companies purchased the agricultural lands bearing Survey Nos.215/2-1, 215/4, 215/5 and 215/2-2 paiki situated at Gandhinagar Page 6 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 originally belonged to respondent nos.5 to 7 vide registered sale deeds dated 23.08.1985, 27.08.1985, 28.08.1985 and 10.09.1985. On 02.12.1985, the Circle Inspector, Gandhinagar reported about the sale of agricultural land to the companies to the Mamlatdar & ALT, Gandhinagar and hence, the Mamlatdar & ALT, Gandhinagar initiated proceedings under Section 84-C of the Tenancy Act and issued notice on the ground that the transaction is in contravention of Section 63 of the Tenancy Act. After hearing the respondents, vide order dated 10.02.1986, the Mamlatdar & ALT, Gandhinagar dropped the proceedings initiated under Section 84-C of the Tenancy Act against the respondents on the ground that the company was having agricultural land at the time of executing the sale deeds, and therefore, the said transactions are valid. In this context, the averments made in Paragraph- 10 of the affidavit-in-reply filed by respondent no.1, three sale deeds of the year 1928, 1935 and 1940 placed on record clearly show that respondent nos.1 to 4 companies were agriculturists prior to Bombay Tenancy and Agricultural Lands Act, 1948 came into force. Therefore, respondent nos.1 to 4 being agriculturist prior to Act came into force purchased the agricultural land by executing sale deeds referred hereinabove and accordingly, entries were also mutated in revenue record, meaning thereby, there was implied permission which was also granted by the revenue authorities. The said order was taken into suo motu revision by the Deputy Collector, Gandhinagar under Section 76-A of the Tenancy Act, who after hearing the parties, vide order dated 01.01.1992, quashed and set aside the order dated 10.02.1986 and remanded the matter back to the Mamlatdar & ALT, Gandhinagar for fresh hearing. Pursuant to which, the Mamlatdar & ALT again registered the case and after hearing the parties, vide order dated 27.10.1998 again held that the transactions between respondent nos.1 to 4 and respondent nos.5 to 7 are valid. Being aggrieved and dissatisfied by the said order, the respondent nos.5 to 7 filed appeal before the Deputy Collector, Gandhinagar, who, vide order dated 19.06.1999, quashed and set aside the order dated 27.10.1998 passed by the Mamlatdar and ALT, Gandhinagar and remanded the matter back for fresh consideration. Against the said order, the respondent nos.1 to 4 filed Revision Application before the Gujarat Revenue Tribunal. The learned Tribunal, after hearing the parties, vide order dated 08.08.2008 allowed the Revision Application filed by respondent nos.1 to 4-original purchasers, and thereby, quashed and set aside the order dated 19.06.1999 and restored the order passed by the Mamlatdar & ALT in Tenancy Case No.Tenancy/Case/39/92 dated 27.10.1998. Meaning thereby, the proceedings before the concerned revenue authorities have culminated in favour of the present respondent nos.1 to 4. It is pertinent to note that twice the Mamltdar and ALT, Gandhinagar and lastly, the learned Tribunal have decided such issues in favour of respondent nos.1 to 4 herein holding that the transaction in question is valid. It is also Page 7 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 pertinent to note that all the issues which have been raised and contended before this Court, had also been raised before the concerned revenue authorities and the revenue authorities concerned after due consideration of those issues and after dealing the same extensively in accordance with law, have come to such a conclusion.
7.2 It is not in dispute that respondent nos.5 to 7 herein have sold the land in question to the respondent nos.1 to 4 by way of registered sale deeds as referred herein above after availing due consideration therefor, meaning thereby, they were conscious about the purchasers of the land in question. Besides, it is not the case herein that the said transaction was entered into by other than the original sellers viz. by issuing the power of attorney and the said power of attorney has entered into the said transaction. It is also not in dispute that the said sale deeds have not been challenged so far and accordingly, the said transaction has attained the finality. It is also not the case of other party that the said transaction was entered into by way of force, coercion or threat to the sellers. It is also not in dispute that the consideration amount for the said transaction is not paid or otherwise. Thus, when there is nothing sort of aforesaid, in the considered opinion of this Court, respondent nos.5 to 7 have no locus in the present proceedings.
7.3 Coming to the another facet of the matter, it is urged by the original purchasers viz. respondent nos.1 to 4 herein that after lapse of these many years, the Government has come with the petition raising aforesaid issues. Indisputably the impugned order passed by the learned Tribunal has been passed in the year 2008, to be more precise on 08.08.2008, the petition is filed in the year 2011 i.e. almost after lapse of a period of three years. There is no explanation much less a satisfactory one is coming forward on record to substantiate such delay on the part of the State. An argument has been canvassed that in a petition under Article 226/227 of the Constitution of India, the issue of delay is not a bar. Admittedly, the same may be the position under the law. However, in the opinion of this Court, simultaneously, it is also a settled legal position that a party cannot be allowed to take undue leverage of situation. It is not in dispute that the State has not agitated such issue ever before. In catena of decisions, the Hon'ble Apex Court has referred the issue of "reasonable period", meaning thereby, proceedings should be initiated and/or concluded within a reasonable period. This is for the reason that proceedings in a Court of law should not linger on for years to come and there should not be hanging sword of democals on either party, as it is rightly said that justice delayed is justice denied. In the case on hand, as aforesaid, the State has preferred the petition in the year 2011 challenging the order of 2008 for the transaction which was initiated way-back in the year 1985 i.e. when respondent nos.1 to 4 entered into the sale transaction.Page 8 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022
C/CA/566/2019 JUDGMENT DATED: 14/07/2021 7.4 So far as submission qua bar of Section 63 of the Tenancy Act and the decision of this Court in the case of Prathmesh Farms Pvt. Ltd. and another (supra) are concerned, Section 63 of the Tenancy Act is since relevant, extracted hereunder:
"Transfers to non-agriculturists barred:-
(1) Save as provided in this Act,-
(a) no sale (including sales in execution of a decree of Civil Court of 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 writing for the sale, gift, exchange, lease or mortgage of any land or interest therein] shall be valid in favour of 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 labourers];
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, 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. (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 dwelling 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 deemed to have applied to a mortgage or any land or interest therein effected in favour of a cooperative 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 Debtor Relief Act, 1947. (4) Nothing in section 63A shall apply to any sale made under subsection (1)"
7.4.1 A bare perusal of the aforesaid section reveals that transfer of a particular land by sale/mortgage/agreement whatsoever is barred in favour of a person who is not an agriculturist. It is apt to note here that respondent nos.1 to 4 - original purchasers were already holding the lands much less agricultural lands prior to their entering into the sale transaction qua the land in question and the said fact is not and never Page 9 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 disputed by the other side. Thus, when respondent nos.1 to 4 were already in possession of agricultural lands, their entering into the further transaction qua purchase of agricultural land is not barred as deemed agriculturist. An issue is also raised that for the sake argument, the transaction is valid, then too, the permission which is required to be taken from the Collector, duly authorized by the State Government, is not taken. It is required to be noted that the transaction in question is of 1985 and now, after lapse of these many years, it does not hold good in favour of State authority to raise such an issue, more particularly, when the respondent Nos. 1 to 4 companies already holding such agricultural lands.
7.4.2 So far as the decision in the case of Prathmesh Farms Pvt. Ltd. and another (supra) is concerned, the said decision appears to have been not applicable to the facts of the case on hand for the reason that the said decision reiterates the legal position of bar of agricultural land to a person who is not an agriculturist. But, in the case on hand, as discussed herein above, the respondent nos.1 to 4-Companies were/are holding the agricultural land prior to their entering into the transaction in question.
7.5 At this juncture, it would be beneficial to have a glance at the recent pronouncement of the Division Bench of this Court headed by Hon'ble the Chief Justice dated 29.06.2018 passed in Letters Patent Appeal No.490 of 2018 and allied matters, wherein, it is observed hereunder:
"5. We have considered the submissions canvassed by learned advocates appearing for the parties. We have also gone through the material produced on record. It is required to be noted that the learned Single Judge has dismissed the petitions only on the ground that the petitioners are not having locus to file the petitions and therefore the learned advocates appearing for the parties have requested that this Court may not examine the merits of the matter and consider the issue of locus of the petitioners only. We, therefore, are not examining the merits of the case.
6. From the material placed on record, it transpires that the sale deed was executed by the petitioner in favour of the respondent no.1- company on 30.11.2009. It is not in dispute that the petitioner has received the amount of consideration. The petitioner has failed to point out from the record that the assurance was given by the respondent no.1 at the time of execution of the sale deed that the petitioners will be offered employment by the respondent no.1- company. The respondent no.2-Mamlatdar and ALT suo motu initiated the proceedings under the provisions of Section 84C of the Act for the alleged breach of Section 63 of the Act. The petitioners have never challenged the transaction entered into between the Page 10 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 petitioners and the respondent no.1-company. Even after the order was passed by the Mamlatdar and ALT, the petitioners have not challenged the said order by filing the appeal before the Deputy Collector. It is required to be noted that the Mamlatdar and ALT has directed that the amount of sale consideration received by the petitioners is to be forfeited and the said amount is to be recovered as arrears of land revenue from the petitioners. The petitioners did not challenge the order passed by the Deputy Collector also by filing revision application before the Tribunal. Thus, when the suo motu proceedings are initiated by the Mamlatdar and ALT, the orders were passed in the said proceedings, the petitioners cannot be said to be aggrieved person and are having no locus to challenge the order of the Tribunal.
7. The provisions of Section 63AD came to be inserted by way of an amendment on 16.9.2015. However, the Mamlatdar and ALT passed an order on 15.10.2014 whereas the Deputy Collector has passed an order on 16.7.2015 i.e. prior to insertion of provision of Section 63AD of the Act. Thus, the contention of the petitioner that the land in dispute can be regranted in favour of the petitioners is also misconceived.
8. In the case of Jasbhai Motibhai Desai (supra), the Hon'ble Supreme Court has held in paragraph 12 as under:
"xxxx In order to have the locus standi to invoke certiorari jurisdiction, the petitioner should be an "aggrieved person". The expression "aggrieved person" denotes an elastic, and, to an extent an elusive concept. Its scope and meaning depends on diverse, variable factors such as the content and intent of the statute of which contravention is alleged, the specific circumstances of the case, the nature and extent of the petitioner's interest, and the nature and extent of the prejudice or injury suffered by him. Xxxxx"
9. We cannot dispute the proposition of law laid down by the Hon'ble Supreme Court in the aforesaid decision. However, the said decision would not be applicable to the facts of the present case.
10. In the case of Fertilizer Corporation Kamagar Union (Regd.)Sindri and others (supra), the Hon'ble Supreme Court has observed in paragraph 23 that the question whether the person has the locus to file a proceeding depends mostly and often on whether he possesses a legal right and that right is violated. But, in an appropriate case, it may become necessary in the changing awareness of legal rights and social obligations to take a broader view of the question of locus to initiate a proceeding, be it under Page 11 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 Article 226 or under Article 32 of the Constitution. In the present case, as discussed hereinabove, the appellants-petitioners have failed to show that they are having any legal right which has been violated and therefore this decision would also not render any assistance to the appellants-petitioners.
11. In the case of Dr.(Mrs.)Meera Massey (supra), the question before the Hon'ble Supreme Court was with regard to anomalies and illegalities in the procedure adopted by the University in making selection and regularizing the various posts in contradiction to the Acts, Statue and Ordinances. The concerned petitioner was Professor of History in the same University and he was genuinely concerned to rectify the wrongs without any personal animosity against anyone. The same was not for any person gain. It was neither politically motivated nor for publicity. In such facts and circumstances of the case, the Hon'ble Supreme Court observed that the petition challenging the appointment of lecturer in the University, professor in the same University has locus standi to file the petition. However, this judgment is not applicable to the facts of the case.
12. In the case of Keshabhai Panabhai Solanki (supra), the issue before the Division Bench was with regard to suspension of Sarpanch. The District Development Officer exercised the powers under Section 59 of the Gujarat Panchayat Act, 1993. On the facts of the said case, it was held that when subject matter raises issue about suitability of incumbent in public office and where order is challenged on the ground that it is contrary to law, it is not proper and just to allow locus standi to be an impediment. However, this decision would not render any assistance to the appellants in the facts of the present case.
13. In the case of Rameshbhai Ambalal Shah (supra), the Division Bench of this Court followed the decision rendered in the case of Navuji Lalji Vaghela (supra) and thereafter observed in paragraph 23 as under:
"23. Even if now, so far as the three classes as explained by the Supreme Court are concerned, the only class which the appellants herein may be able to invoke is that the contract if it is illegal by statute in the interest of a particular class of persons of whom seller of the land is one, then as per this contention, the seller is relieved of the consequences of an illegal contract into which he has entered and the maxim of pari-delicto will not apply. We are afraid it is not as easy as contended by the learned counsel for the appellants to accept this because if restoration of possession is to be made at the Page 12 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 instance of the seller of the property, then the seller will have to establish before the competent court that when the transaction of sale was entered into, it was disclosed by the seller to the purchaser that the permission of the competent authority before entering into the registered sale deed was required and inspite of the same, the purchaser has at his own risk agreed to purchase the land without permission of the competent authority. If the purchaser establishes that the seller of the property has withheld this information from the purchaser and has made the purchaser to believe that on account of sale transaction, the rights and titles of the seller are fully conveyed and he would become the absolute owner of the property, the court may decline the relief to the seller for declaring the sale as illegal or void. If the seller establishes that the seller himself as well as the purchaser, both were under the bonafide mistake that the permission of the competent authority for sale is not required, then in the given case, the court keeping in view the intent of the legislature may declare the transaction of sale as invalid. But, in those circumstances also the court may decline the equitable relief of restoring the possession back to the seller and even if the court decides to restore the possession back to the seller, the court may also put the seller on condition of repaying the sale consideration and the compensation also if circumstances so demand. All these questions of facts can only be examined in the proceedings of civil suit."
14. In the case of Navuji Lalji Vaghela (supra), the Division Bench of this Court observed in paragraph 4 as under:
"4. We are of the view that the position of law is very clear. Firstly, to maintain a petition under Article 226 or 227 of the Constitution of India, the party aggrieved must show that any of his fundamental rights or any other legal rights have been infringed and thereby the party is aggrieved by such infringement. Who can be said to be "a person aggrieved"? One of the meanings is that "a person will be held to be aggrieved by a decision", if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again a person is aggrieved, if a legal burden is imposed upon him. Can it be said that the appellants would fall within the words "person aggrieved"
or "a person who has a genuine grievance because an order has been made which prejudicially affects his interest". On the contrary, this is an appeal by persons who are trying to take advantage of their own wrong. The maxim: "Nulluys commondum capere potest de injuria sua propria" (No man can take advantage of his own wrong) is very much applicable in the facts and Page 13 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 circumstances of the present case. The maxim: "Nullus commondum capere potest de injuria sua propria" (No man can take advantage of his own wrong) is one of the salient tenets of equity. The appellants cannot secure the assistance of a court of law for enjoying the fruit of their own wrong."
15. In the case of Abhesinh Mohansinh (supra), the learned Single Judge of this Court has observed and held in paragraph 7 as under:
"7. In my view, restoration is one of the option to avoid forfeiture of the land otherwise the land is forfeited/confiscated to the State Government even as per the order of the Mamlatdar. Further, so far as the authority under the Act is concerned, the Revenue Tribunal ultimately has concluded in favour of the purchaser respondents No.2 to 4 and the transaction is not held as void or illegal and the proceedings initiated by the Mamlatdar and the Assistant Collector thereafter and the order passed by the Collector thereafter are quashed and set aside by the Revenue Tribunal which itself is the authority under the Act. Therefore, when the authority under the Act has held the transaction as valid, it hardly lies in the mouth of the seller who is party to the transaction to contend that the transaction be declared invalid, more particularly, when he has enjoyed the benefit of the transaction by pocketing the consideration long back and he has lost the remedy even by filing civil suit or declaration that the transaction is null and void or illegal. The remedy of getting back the land which is not permissible directly, cannot be allowed to be done indirectly by invoking the jurisdiction of this Court under Art.227 of the Constitution. Therefore, the distinction as sought to be canvassed on behalf of the petitioner is ill-founded and is of no help to the petitioner."
16. In the case of Patel Ratilal Maganbhai (supra), the Division Bench of this Court has held in paragraph 15 as under:
"15. When we considered the aforesaid submissions of Mr.Shelat seeking declaration that the transaction of sale is void in a writ petition and that the possession of the land should be restored back to the appellants, Mr.A.J.Patel appearing for the respondent No.3 had drawn our attention to the judgment of this court in the case of Smt.Ratnaprabhabai, D/o Hirojirao Naranrao Mane vs M/s Tulsidas V.Patel reported in 23(2) GLR 213 where in the question of exercise of powers by the court under Article 227 of the Constitution against the order of the lower authority rejecting to set aside the sale on account of permission not obtained of the competent authority and initiating proceedings under section 84C Page 14 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 of the Bombay Tenancy & Agricultural Lands Act was considered by this court and this court held that "the petitioner who is a transferor and party to sale would never be said to be aggrieved party which would entitle him to carry the matter in appeal when the State has chosen not to challenge the order of the Mamalatdar under the said Act." It was further observed that "the position of such petitioner who has pocketed the money long back and is trying to catch at a straw and is practically indulging in the policy of dog in the manger by seeing that the hanging sword of the litigation lingers on so that at some future time the purchaser may come round and may give some added financial advantage to the petitioner by way of bargain and if the present proceedings are kept pending such oblique intention of the petitioner may get fructified".
It was observed that "the court obviously can not be a party to such a design." At this stage, Mr.Shelat had tried to distinguish the judgment in the aforesaid case of this court by contending that it was a case under section 84C of the Act where the purchaser is not going to get back the land and the land would vest with the State Government. However, we do not agree with the distinction sought to be made by Mr.Shelat because the position would remain the same that this court would not be a party to the malafide design on the part of the sellor who has voluntarily entered into sale transaction and has pocketed money long back and has allowed the transaction to continue for a period of more than 16 years."
17. From the aforesaid decisions rendered by this Court, it is clear that when the seller has pocketed the amount of consideration and if he has lost the remedy even by filing civil suit or declaration that the transaction is null and void and illegal, the remedy of getting back the land which is not permissible directly, cannot be allowed to be done indirectly by invoking the jurisdiction of this Court under Article 226 of the Constitution. It is further clear that the concerned petitioner who is transferor and party to sale would never be said to be aggrieved party which would entitle him to carry the matter in appeal when the state has chosen not to challenge the order. It is further clear from the aforesaid decisions that to maintain the petition under Articles 226 and 227 of the Constitution, the party aggrieved must show that any of his fundamental rights or his legal rights have been infringed and thereby the party is aggrieved by such infringement. What is meaning of person aggrieved is also discussed.
18. Thus, keeping in view the aforesaid decisions, if the facts as stated hereinabove are examined, we are of the view that the respondent no.2- Mamlatdar and ALT suo motu initiated the proceedings under the provisions of Section 84 of the Act for Page 15 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 alleged breach of Section 63 of the Act. The petitioners have never challenged the sale transactions entered between them and the respondent no.1-company. The order passed by Mamlatdar and ALT was not challenged by the petitioners before the Deputy Collector. Similarly, the order passed by the Deputy Collector was not challenged by the petitioners before the Tribunal. The petitioners have not initiated any civil proceedings for cancellation of sale deeds nor they have initiated any revenue proceedings for cancellation of mutation entries made in the revenue record. The petitioners have pocketed the amount of sale consideration.
19. In view of the aforesaid facts and circumstances of the case and in view of the reasoning recorded by the learned Single Judge, we are of the view that the learned Single Judge has not committed any error which requires interference in these appeals. Accordingly, these appeals are dismissed. Consequently, all the connected civil applications also stand dismissed.
20. At this stage, it is made clear that as the learned Single Judge has dismissed the petitions only on the ground of locus of the petitioners, we have also not examined the merits of the matter."
7.6 At this juncture, it would also be referred to the order dated 13.06.2017, passed by the coordinate bench of this Court in Special Civil Application No. 21125 of 2016 and allied matters (against which aforesaid LPA was preferred):
"12. Having heard the learned counsel appearing for the parties and having considered the materials on record, the only question that falls for my consideration is whether the petitioners have locus to question the legality and validity of the order passed by the Gujarat Revenue Tribunal.
13. The position of law is very clear. First, to maintain a petition under Article 226 or 227 of the Constitution of India, the party aggrieved must show that any of his fundamental rights or any other legal rights have been infringed and thereby the party is aggrieved by such infringement. Who can be said to be "a person aggrieved" ? One of the meanings is that "a person will be held to be aggrieved by a decision", if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again a person is aggrieved, if a legal burden is imposed upon him. Can it be said that the petitioners fall within the words "persons aggrieved" or "a person who has a genuine grievance because an order has been made which prejudicially affects his interest". On the contrary, Page 16 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 these petitions are filed by persons who are trying to take advantage of their own wrong. The maxim: " Nullus commodum capere potest de injuria sua propria " (No man can take advantage of his own wrong) is very much applicable in the facts and circumstances of the present case. The maxim: " Nullus commodum capere potest de injuria sua propria " (No man can take advantage of his own wrong) is one of the salient tenets of equity. The appellants cannot secure the assistance of a court of law for enjoying the fruit of their own wrong.
14. I may refer to a decision of the Supreme Court explaining this principle of law, in the matter of Union of India and others v/s. Major General Madan Lal Yadav [Retd.], reported in (1996)4 SCC
127. In paragraph 28, the Supreme Court observed as under:
"In this behalf, the maxim nullus commodum capere potest de injuria sua propria meaning no man can take advantage of his own wrong squarely stands in the way of avoidance by the respondent and he is estopped to plead bar of limitation contained in Section 123(2). In Broom's Legal Maximum [10th Edn.] at page 191 it is stated:
"...it is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."
The reasonableness of the rule being manifest, we proceed at once to show its application by reference to decided cases. It was noted therein that a man shall not take advantage of his own wrong to gain the favourable interpretation of the law. In support thereof, the author has placed reliance on another maxim frustra legis auxilium invocat quaerit qui in legem committit. He relies on Perry v. Fitzhowe [(1846)8 Q.B. 757]. At page 192, it is stated that if a man be bound to appear on a certain day, and before that day the obligee puts him in prison, the bond is void. At page 193, it is stated that "it is moreover a sound principle that he who prevents a thing from being done shall not avail himself of the nonperformance he has occasioned". At page 195, it is further stated that "a wrong doer ought not to be permitted to make a profit out of his own wrong". At page 199 it is observed that "the rule applies to the extent of undoing the advantage gained where that can be done and not to the extent of taking away a right previously possessed."
15. A Division Bench of this Court, to which, I was a party in the Page 17 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 case of Navuji Lalji Vaghela Vs. State of Gujarat and Others reported in 2011 (4) GLR 3636, was compelled to observe as under:
6. We have been consistently noticing that many persons like the present appellants have started abusing the process of law and have started taking undue advantage of such proceedings, more particularly, in land matters. After entering into a transaction with eyes wide open, knowing fully well that the transaction is in breach of the provisions of the Tenancy Act and after pocketing huge amount when the transaction is declared invalid and subsequently if the purchaser succeeds, the original owner would come before the Court saying that the transaction be declared invalid. Such practice needs to be deprecated.
16. I would also like to refer and rely upon one another decision of the Division Bench of this Court, to which, I was a party in the case of Rameshbhai Ambalal Shah Vs. State of Gujarat and Anr. reported in 2011 (3) GLH 98. In Paragraph18, there is a reference of one order passed in the Letters Patent Appeal No.433 of 2011, decided on 28/04/2011. The paragraphs18, 20, 22, 23, 24 reads as under:
18. Secondly, apart from the issue of reasonable time or reasonable period, what is that legal right in favour of the appellants herein to claim that the land should be restored in their favour? We have answered this issue quite elaborately in an identical case while deciding Letters Patent Appeal No.433 of 2011 on 28.04.2011 wherein, we have observed as under:
"We are of the view that the learned Single Judge has rightly rejected the petition on the ground that the appellants have no locus standi and, therefore, no relief can be granted in favour of a transferor who himself has violated the provisions of law by entering into a transaction."
We are of the view that the position of law is very clear. Firstly, to maintain a petition under Article 226 or 227 of the Constitution of India, the party aggrieved must show that any of his fundamental rights or any other legal rights have been infringed and thereby the party is aggrieved by such infringement. Who can be said to be "a person aggrieved" ? One of the meanings is that "a person will be held to be aggrieved by a decision", if that decision is materially adverse to him. Normally, one is required to establish that one has been denied or deprived of something to which one is legally entitled in order to make one "a person aggrieved". Again a person is aggrieved, if a legal burden is imposed upon him. Can it Page 18 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 be said that the appellants would fall within the words "persons aggrieved" or "a person who has a genuine grievance because an order has been made which prejudicially affects his interest". On the contrary, this is an appeal by persons who are trying to take advantage of their own wrong. The maxim: "Nullus commodum capere potest de injuria sua propria" (No man can take advantage of his own wrong) is very much applicable in the facts and circumstances of the present case. The maxim: "Nullus commodum capere potest de injuria sua propria" (No man can take advantage of his own wrong) is one of the salient tenets of equity. The appellants cannot secure the assistance of a court of law for enjoying the fruit of their own wrong.
We may refer the decision of the Supreme Court explaining this principle of law, in the matter of Union of India and others v/s. Major General Madan Lal Yadav [Retd.], reported in (1996)4 SCC
127. In paragraph 28, the Supreme Court observed as under:
"In this behalf, the maxim nullus commodum capere potest de injuria sua propria meaning no man can take advantage of his own wrong squarely stands in the way of avoidance by the respondent and he is estopped to plead bar of limitation contained in Section 123(2). In Broom's Legal Maximum [10th Edn.] at page 191 it is stated:
"...it is a maxim of law, recognized and established, that no man shall take advantage of his own wrong; and this maxim, which is based on elementary principles, is fully recognized in courts of law and of equity, and, indeed, admits of illustration from every branch of legal procedure."
The reasonableness of the rule being manifest, we proceed at once to show its application by reference to decided cases. It was noted therein that a man shall not take advantage of his own wrong to gain the favourable interpretation of the law. In support thereof, the author has placed reliance on another maxim frustra legis auxilium invocat quaerit qui in legem committit. He relies on Perry v. Fitzhowe [(1846)8 Q.B. 757]. At page 192, it is stated that if a man be bound to appear on a certain day, and before that day the obligee puts him in prison, the bond is void. At page 193, it is stated that "it is moreover a sound principle that he who prevents a thing from being done shall not avail himself of the nonperformance he has occasioned". At page 195, it is further stated that "a wrong doer ought not to be permitted to make a profit out of his own wrong". At page 199 it is observed that "the rule applies to the extent of undoing the advantage gained where Page 19 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 that can be done and not to the extent of taking away a right previously possessed."
20. The principle that the Courts will refuse to enforce an illegal agreement at the instance of a person who is himself a party to an illegality or fraud as expressed in the maxim "in paridelicto potior est conditio defendentis".
22. As explained by Law Lexicon;
"In pari delicto. In equal fault ; equally culpable or criminal ; in a case of equal fault or guilt. A person who is in pari delicto with another differs from a paricepes criminis in this, that the former term always includes the latter, but the letter does not always include he former. (Black's Law Dict.) Where both parties are equally at fault, the condition of the possessor (or defendant) is the stronger. (Latin for Lawyers).
In pari delicto potior est conditio possidentis.
Where the parties are equally in the wrong. The condition of the possessor is better. Where a certain person transferred her land to a near relative benami in order to defeat her creditor and continued in possession of the same for a long period and subsequently the heirs of the benamidar turned her out of possession by asserting their rights and the rightful owner brought a suit for a declaration of her title and for possession and mense profits, held that the original transfer was tainted with fraud and that the maxim in pari delicto potior est conditio possidentis would apply to the case. Held on the facts that the original owner was entitled to the possession of the property, for damages and mense profits but not for a declaration of her title to the land."
23. Even if now, so far as the three classes as explained by the Supreme Court are concerned, the only class which the appellants herein may be able to invoke is that the contract if it is illegal by statute in the interest of a particular class of persons of whom seller of the land is one, then as per this contention, the seller is relieved of the consequences of an illegal contract into which he has entered and the maxim of paridelicto will not apply. We are afraid it is not as easy as contended by the learned counsel for the appellants to accept this because if restoration of possession is to be made at the instance of the seller of the property, then the seller will have to establish before the competent court that when the transaction of sale was entered into, it was disclosed by the seller to the purchaser that the permission of the competent authority Page 20 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 before entering into the registered sale deed was required and inspite of the same, the purchaser has at his own risk agreed to purchase the land without permission of the competent authority. If the purchaser establishes that the seller of the property has withheld this information from the purchaser and has made the purchaser to believe that on account of sale transaction, the rights and titles of the seller are fully conveyed and he would become the absolute owner of the property, the court may decline the relief to the seller for declaring the sale as illegal or void. If the seller establishes that the seller himself as well as the purchaser, both were under the bonafide mistake that the permission of the competent authority for sale is not required, then in the given case, the court keeping in view the intent of the legislature may declare the transaction of sale as invalid. But, in those circumstances also the court may decline the equitable relief of restoring the possession back to the seller and even if the court decides to restore the possession back to the seller, the court may also put the seller on condition of repaying the sale consideration and the compensation also if circumstances so demand. All these questions of facts can only be examined in the proceedings of civil suit.
24. In one of the recent pronouncements by Full Bench of this High Court, rendered in Letters Patent Appeal No.1875 of 2007 and analogous appeals, decided on 21.07.2011, the Full Bench in almost an identical fact situation with the only distinguishing feature that it was a case arising from Bombay Prevention of Fragmentation of Consolidation of Holdings Act, 1947, has held as under:
"Article 226 of the Constitution is an equitable extraordinary jurisdiction, it should be exercised to prevent perpetration of legal fraud and to promote good faith and honesty. It cannot be exercised in favour of a defaulting party to frustrate legitimate claim of the other party. [AP State Financial Corporation, (1994) 2 SCC 647]"
Even the void transaction under Section 9(1) if allowed to remain effective for considerably long period, the authority named therein will be precluded from initiating proceedings to annul it. Even the void transaction cannot be said to be nonexistent in all cases and in all situations. It can remain effective and in existence till it is invalidated and set aside. If its existence is allowed to remain for a considerable period and with the passage of time it brings about several changes, creating valuable rights in favour of considerable section of people, it is difficult to accept the proposition that despite the change the Collector would be entitled to exercise Page 21 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 power under Subsection (3) of Section 9 of the Act. When the things have been allowed to remain as such for years together, the purchaser cannot be deprived of his possession so as to render indirect benefit to the seller who was equally responsible for entering into such illegal transaction. When the authority had considerable opportunities to know about the transaction and despite that, has not taken any action thereon for years together, such authority cannot be allowed to exercise powers conferred upon it at a belated stage. The concept of reasonableness of time will equally apply in such cases. Therefore, even powers conferred upon the Collector under subsections (2) and (3) of Section 9 are required to be exercised within a reasonable time. [Valjibhai Jagjivanbhai vs. State of Gujarat, 2005 (2) GLH 34].
17. I have also considered the judgments relied upon by Mr. Japee referred to above. In my view, none of the judgments relied by Mr. Japee are helpful in any manner so far as the issue of locus of his clients to file these petitions are concerned.
18. In view of the above, I hold that the petitioners have no locus to question the legality and validity of the order passed by the Gujarat Revenue Tribunal. I am not going into the issue whether any permission was required to be obtained by the Company under Section63 of the Act, 1948 before purchasing the parcels of the agricultural land. My judgment is confined only to the issue of locus of the petitioners in challenging the order passed by the Gujarat Revenue Tribunal. In future, if the State deems fit to challenge the order of Gujarat Revenue Tribunal, this issue may be looked into by the Court concerned in accordance with law.
19. If the petitioners have any other legal remedy in law to question the legality and validity of the transactions, then it is open for them to initiate appropriate proceedings before the appropriate forum in accordance with law.
20. In view of the aforesaid discussion, all the applications fail and are hereby rejected in limine on the ground of locus alone.
At this stage, Mr. Japee, the learned counsel clarifies that his clients do have something to say with regard to the breach of Section63 of the Act, 1948. If the petitioners have anything to say with regard to the breach of Section63, it is nothing, but an abuse of the process of law taking advantage of their own wrong.
I could have imposed heavy costs for abuse of the process of law and wasting the time of the court, however, I refrain myself from passing any orders as regards the costs."
Page 22 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022C/CA/566/2019 JUDGMENT DATED: 14/07/2021 7.7 Thus, a perusal of the aforesaid decisions it reveals that though the Courts have not gone into the other merits of the case and only touched the issue of locus of the petitioner and dismissed the main petition as well as appeal there against, the fact remains that in view of foregoing discussions, the occupation of the company as an agricultural land holder remains.
8. Thus, in view of the aforesaid discussions and reasons, this Court is of the opinion that present petition requires to be dismissed and is accordingly, dismissed. Rule is discharged. No order as to costs."
6. Submissions on behalf of the appellants (original respondents Nos.5 to 7) of Letters Patent Appeal No.32204 of 2019 :-
6.1 Mr. Nirad D. Buch, the learned counsel appearing for the original respondents Nos.5 to 7 (original owners) mainly submitted that the respondents Nos.1 to 4 Companies created a fraudulent power of attorney with a malafide intention to usurp the lands of the appellants and also entered into MoU with the appellants through an employee of the Companies. He further submitted that the appellants have therefore filed criminal complaint dated 3.8.2019 which is pending adjudication. He submitted that the respondents Nos.1 to 4 Companies are trying to defeat the process of law and take away the agricultural land which originally belonged to the appellants.
6.2 In support of his submissions he relied on the decision in the case of State of Gujarat and Ors. vs.Prathmesh Farms Page 23 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 Pvt. Ltd., & Ors., reported in 2011 (1) GLR 159. Relying upon the ratio laid down in the above referred judgment he fortified his submissions that the Sale Deeds dated 23.8.1985, 27.8.1985, 28.8.1985 and 10.9.1985 respectively entered into between the appellants and respondents Nos.1 to 4 were void transactions and against the provisions of the Tenancy Act. He submitted that the judgment and order passed by the learned Single Judge was therefore required to be set aside.
6.3 He submitted that the respondents Nos.1 to 4 were agriculturist prior to the Act came into force and, therefore, in view of the ratio laid down in the decision of Prathmesh Farms Pvt. Ltd., & Ors., he submitted that the provisions of Section 63 of the Tenancy Act would be applicable even if it was assumed that the Company was an agriculturist prior to the commencement of the Act. He submitted that prior permission was necessary before purchasing such agricultural land. The learned Single Judge erred in not following the ratio laid down in the above referred judgment.
7. Submissions on behalf of the appellant - State of Gujarat of Letters Patent Appeal No.6552 of 2019 :-
7.1 Mr. Chintan Dave, the learned AGP appearing for the appellant State mainly contended that the appeal was required to be allowed solely on the ground that the transaction entered into between the respondents Nos.5 to 7 (original land owners) Page 24 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 appellants of the Special Civil Application No.32204 of 2019 and respondents Nos.1 to 4 (Companies) are void since they are hit by Section 63 of the Tenancy Act. He submitted that the transactions entered into between both the parties were without seeking permission of the appropriate competent authority. He submitted that the respondents Nos5 to 7 (original land owner) were agriculturist who were owner of the land and the Company was the purchaser and, therefore, the Company was required to seek permission before entering into sale deed with the respondents Nos.5 to 7. He submitted that the sale was in violation of the provisions of the Tenancy Act and in the case of defeating very sale deeds the lands would vest with the original owners. Therefore, the State and original owners of the land have time and again preferred revision/appeal and there is no question of locus stand as submitted by the respondents Nos.1 to 4 Companies who were the Companies and purchaser of the land in dispute.
7.2 He submitted that the learned Single Judge erred in not deciding the matter on merit and decided only on the ground of locus standi/delay which was not germane to the issue mainly because the sale in question is violative of the provisions of the Tenancy Act and in the event the sale is held to be void the land would vest in the name of the original owners. Thus the question of locus standi and delay was not applicable to the present case and, therefore, the learned Page 25 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 Single Judge had erred in dismissing the writ-application filed by the appellant State.
7.3 The learned AGP also placed reliance on the decision in the case of State of Gujarat and Ors. vs.Prathmesh Farms Pvt. Ltd., & Ors., reported in 2011 (1) GLR 159,and submitted that the ratio laid down in the said decision is that a Company cannot be an agriculturist. He therefore vehemently submitted that the learned Single Judge has committed an error and whether the Company was "agriculturist" was essential for arriving at conclusion before rejecting the writ-application filed by the appellant - State. He further submitted that the delay in preferring the appeal against the order dated 8.8.2008 passed by the GRT was mainly due to the administrative reason and the delay was not intentional.
8. Submissions on behalf of the respondent No.4 :-
8.1 Mr. S. N. Soparkar, the learned Senior Counsel assisted by Mr. Amar Bhatt, the learned counsel appearing for the respondent No.4 submitted that the appeal filed by the State as well as respondents Nos.5 to 7 (original owners) was required to be dismissed solely on the ground of delay. He submitted that undisputedly the order passed by the Tribunal was dated 8.8.2008 and the writ-application came to be filed in the year 2011 i.e. after a lapse of three years. He further submitted that the first order of the Mamlatdar and ALT dated 10.2.1986 Page 26 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 dropping the proceedings was interfered with by the Dy.
Collector by exercising powers of suo motu revision under Section 76A of the Tenancy Act and the matter was remanded to the Mamlatdar and ALT by order dated 27.10.1998. Against the said order the respondents Nos.5 to 7 filed Tenancy Appeal No.7 of 1999 before the Dy. Collector, Gandhinagar. In support of the same he has placed reliance on the decisions of the Honorable Apex Court in the case of Post Master General & ors. Vs Living Media and Ors 2012(3) SCC 563 and also the decision of this Court in F/LPA No. 17464 of 2020 decided on 17.12.2020.
8.2 Mr. Soparkar, the learned Senior Counsel submitted that the State Government never challenged the order dated 27.10.1998 passed by the Mamlatdar & ALT by exercising the power of suo motu revision. Mr. Soparkar submitted that the order passed by the learned Single Judge was just and proper and do not deserve any interference.
8.3 He submitted that the Company was an agriculturist even before the Tenancy Act came into force. He submitted that it is an undisputed fact that the transaction entered into between the respondents Nos.1 to 4 and respondents Nos.5 to 7 (original owners) by way of Registered Sale Deeds dated 23.8.1985, 27.8.1985, 28.8.1985 and 10.9.1985 respectively were never challenged and the same transactions have attained finality. It was submitted that it was also not the case of Page 27 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 either the State Government or the original owners that the transactions were entered by way of force, coercion or threat to the sellers. He submitted that it is also not the case that the amount of sale consideration was not paid towards the sale deeds.
8.4 It was submitted that the respondents Nos.1 to 4 (Companies) from time to time purchased several parcels of lands and in respect of those agricultural land at no point of time any dispute was raised by either of the appellants about the alleged breach of Section 63 of the Tenancy Act in respect of earlier transactions also. The appellant - State did not raise any dispute that the Company purchased the agricultural land with full knowledge, since it was within the knowledge of the appellant - State that Company was holding agricultural land prior to Tenancy Act came into force.
8.5 He submitted that the respondents Nos.1 to 4 jointly on payment of entire sale consideration mutation entries were entered in the village form No.6 and after issuance of notice under Section 135B of the Act to the owners the same were certified. He further submitted that the appellant - State had accepted the order passed by the Tribunal dated 8.8.2008. It was the respondents No.5 to 7 (original owners) who had no locus standi who filed the Special Civil Application No.15451 of 2010 challenging the order passed by the Tribunal. He submitted that the Court was pleased to take note of the fact Page 28 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 that the sellers were also aware about the order of the Tribunal allowing the appeal of the original respondents Nos.1 to 4 (Companies) on 8.8.2008. The original respondents Nos.5 to 7 filed the Special Civil Application No.15451 of 2010 and kept it pending and same was never circulated. According to Mr. Soparkar, the matter came to be circulated after the judgment in Prathmesh Farms Pvt. Ltd., & Ors. Was delivered by the Division Bench on 3.12.2010.
8.6 He submitted that if the contention of the appellant - State was to be accepted that no company could hold agricultural land, then in such situation the rights vested with the Companies who acquired the agricultural land prior to 1948 Act coming into force would be disturbed. It was never the intention of the legislature to take away the vested right of a party whose rights were established prior to the Tenancy Act came into force. He submitted that the Statute would always operate prospectively unless the legislature clearly intended to make it operative with retrospective effect. He submitted that the Tenancy Act was never intended to debar an artificial person from holding the agricultural land. He also submitted that the judgment rendered in Prathmesh Farms Pvt. Ltd., & Ors., was not applicable in the present case mainly on the ground that the Company was an agriculturist prior to Tenancy Act coming into force and the judgment of Prathmesh Farms Pvt. Ltd., & Ors., would not apply to the case of the respondents Nos.1 to 4 (Companies).
Page 29 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022C/CA/566/2019 JUDGMENT DATED: 14/07/2021
9. The learned Single Judge while deciding the writ- application took into consideration the following aspects :-
(a) The orders passed by the Mamlatdar & ALT, Gandhinagar dated 10.2.1986 and 27.10.1998 and the order passed by the GRT dated 8.8.2008 have held the transactions entered into between the respondents Nos.5 to 7 (original owners) selling the lands in question by way of registered sale deeds in favour of respondents Nos.1 to 4 as valid transaction.
(b) All the issues which were raised and contended were considered by the authorities and after due deliberation as well as after extensive hearing the above conclusion was arrived at.
(c) The State of Gujarat preferred the writ-application in the year 2011 challenging the order dated 8.8.2008 passed by the GRT for the transactions which were initiated way back in the year 1985.
(d) So far as submission qua bar of Section 63 of the Tenancy Act and the decision in the case of State of Gujarat vs. Prathmesh Farms Pvt. Ltd., the same has been dealt exhaustively by the learned Single Judge.
(e) The learned Single Judge relied on the decision in the case of Letters Patent Appeal No.490 of 2018 in the Special Civil Application No.21265 of 2016 and allied matters in the Page 30 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 case of Parshotambhai Dhajibhai Patel vs. Shivganga Famrs Pvt. Ltd., decided on 29.6.2018.
10. We have heard Mr. Chintan Dave, the learned AGP appearing for the appellant State, Mr. S. N. Soparkar, the learned Senior Counsel assisted by Mr. Amar Bhatt, the learned counsel appearing for the respondent No.4 and Mr. Nirad Buch, the learned counsel appearing for the respondents Nos.5 to 7 (original owners).
Analysis of LPA No.32204 of 2019 :-
11. At the outset, we are of the opinion that the appellants (original respondents Nos.5 to 7) sold the lands in question in favour of respondents Nos.1 to 4 Companies way back in the year 1985 by Registered Sale Deeds dated 23.8.1985, 27.8.1985, 28.8.1985 and 10.9.1985 respectively. They voluntarily sold the land to the respondents Nos.1 to 4 Companies which were agriculturist at the time of sale. Having voluntarily sold the land after availing due consideration, meaning thereby, the appellants were conscious about the status of purchasers of the land in question. The transaction was entered into by the original sellers and comp0any through their power of attorney holder. Further as observed earlier, it is undisputed fact that the sale deeds have never been challenged and the said transaction attained the finality. It is for the first time in these appeals, the appellants have alleged Page 31 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 force, deceit and coercion against the respondents Nos.1 to 4 Companies. Further undisputedly the sale consideration has been paid and there is no grievance about it. In other words, the case of the appellant is hit by the applicability of doctrine of pari-delicto because the appellants have adverse interest in the property and they are trying to take advantage of the litigation which was pending. The doctrine of pari-delicto is explained as under :-
"In pari delicto. In equal fault ; equally culpable or criminal ; in a case of equal fault or guilt. A person who is in pari delicto with another differs from a paricepes criminis in this, that the former term always includes the latter, but the letter does not always include he former. (Black's Law Dict.) Where both parties are equally at fault, the condition of the possessor (or defendant) is the stronger. (Latin for Lawyers)."
The law is well settled. The doctrine of pari-delicto is considered by this Court in a catena of decisions, more particularly in the case of Rameshbhai Ambalal Shah vs. State of Gujarat & Anr., reported in 2011 (3) GLR 2587 as well as Letters Patent Appeal No. 490 of 2018. The reliance on the same is well placed by the Learned Single Judge while adjudicating upon the issue involved in the writ application.
Analysis of LPA No.6552 of 2019 :-
12. We take note of the following facts :-
12.1 The appeal preferred by the State of Gujarat is at a Page 32 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 belated stage. From the chronology of events we have noticed that respodnent no.4 is a company incorporated under the Indian Companies Act, 1913. The said company was incorporated in the year 1931. The company was holding an agricultural land since 1946 i.e. prior to coming into the force of Bombay Tenancy & Agricultural Land Act, 1948. Accordingly the entries were mutated in the revenue record meaning thereby there was implied permission which was granted by the revenue authorities. Further material reflecting the holding of agricultural land by respondent no. 1 to 4 from the year 1951-1986 is also produced by the respondents. The respondent company also purchased several parcels of agricultural lands and for those agricultural lands there is no dispute ever raised by the state government or any parties with respect to the bar of section 63 of the Tenancy Act that the company could not purchase agricultural land.
12.2 The respondent no. 5 to 7 and respondent no.1 to 4 entered in to the sale transaction vide registered sale deeds dated 23.8.1985, 27.8.1985, 28.8.1985 and 10.9.1985 for the parcels of agricultural land. The revenue entries qua the registered sale-deeds were mutated accordingly. The said mutation of entries was taken into suo motu revision by the Dy. Collector, Gandhinagar under Section 76A of the Tenancy Act. The Dy. Collector after hearing the parties by order dated 1.1.1992 quashed and set aside the order dated 10.2.1986 and Page 33 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 remanded the matter to the Mamlatdar & ALT for a fresh hearing. The Mamlatdar & ALT registered the case and after hearing the parties by order dated 27.10.1998 again held that the transactions between the respondents Nos.1 to 4 and respondents Nos.5 to 7 are valid transactions.
12.3 Being aggrieved and dissatisfied by the said order the respondents Nos.5 to 7 filed an appeal before the Dy.
Collector, Gandhinagar, who by order dated 19.6.1999 quashed and set aside the order dated 27.10.1998 passed by the Mamlatdar & ALT and remanded the matter back for a fresh consideration. Against the said order the respondents Nos.1 to 4 filed Revision Application No.TEN/D/A/349/99 before the GRT. The GRT after hearing the parties allowed the revision application by order dated 8.8.2008 filed by the respondents Nos.1 to 4 and quashed and set aside the the order passed by the Dy. Collector dated 19.6.1999 and restored the order passed by the Mamlatdar & ALT in Tenancy Case No.Tenancy/ Case/39/92 meaning thereby the learned Single Judge having considered the above aspects rejected the writ-application filed by the State of Gujarat.
13. The Mamlatdar & ALT, Gandhinagar twice and lastly the GRT as also the learned Single Judge of this Court have decided the case in favour of the respondents Nos.1 to 4 holding the transactions in question as valid transactions.
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14. The State of Gujarat filed the writ-application raising the aforesaid issue undisputedly after the learned Tribunal allowed the revision application filed by the respondents Nos.1 to 4 by order dated 8.8.2008 and the writ-application came to be filed in the year 2011 i.e. almost after a last of three years. It is also important to point out one aspect which we could find from the memo of the appeal of the State wherein it has been contended that the land being hit by the provisions of Section 63 of the act would vest in the original owner. The ground (H) reads thus :-
"H. The Learned Single Judge ought not to have appreciated the fact that the Respondent No. 5 to 7, who is the original owner of the land has no locus-standi considering the fact that against the sale deed of the year 1985, immediately the Circle Inspector has reported that the sale is violation of the Tenancy Act, and immediately Notice under Section 84-C of the Tenancy Act is issued and the Deputy Collector, Gandhinagar has conducted the sou-moto case and passed an Order dated 01.01.1992 and also in the year 19.06.1999 in an appeal filed by the original owner -- present Respondents No. 5 to 7. The question of present case, the sale is in violation of the Tenancy provisions, and in case of the defeating of the very sale deed, the land will west to the original owner, therefore, the State Government and the Original Owners, have time and again preferred the revision/ appeal and therefore there is no question of locus standi as adjudicated by the present Respondent No. 1 to 4, who were the Companies and purchaser of the land in dispute. The Learned Single Judge has erred in not deciding on the merits of the case and decided only on the locu-standi / delay which is not essential in the present case, on the countrary, sale is in violation of the Tenancy Act, and in the event sale became void, the land will vest in the name of the original owner. Thus the question of locus-standi and delay is not applicable in the present case and therefore, requires to quash and set Page 35 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 aside the judgment and order passed by the Learned Single"
Hence from the memo of appeal also it reflects that the State Government has filed this appeal with non-application of mind and without there being any basis for their claim.
15. We have pertinently noted that the writ-application filed by the respondents Nos.5 to 7 being Special Civil Application No.15451 of 2010 came to be disposed of by order dated 1.4.2011 by the learned Single Judge mainly on the ground that the State preferred the writ-application and, therefore, there was no reason for the respondents Nos.5 to 7 to continue their cause.
16. It appears that the State of Gujarat filed the Special Civil Application No.1112 of 2011 after the disposal of the Special Civil Application No.15451 of 2010, meaning thereby the writ- application was filed by the State because of the fact that now the cause is not being espoused by the private parties on the aspect of bar of section 63. The order dated 1.4.2011 passed in the Special Civil Application No.15451 of 2010 was not challenged by the respondents Nos.5 to 7 and has attained finality.
17. Admittedly the State had not agitated earlier the issue prior to filing of the Special Civil Application No.1112 of 2011. Clearly the State filed the writ-application in the year 2011 challenging the order dated 8.8.2008 passed by the GRT for a Page 36 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 transaction which was initiated way back in the year 1985 i.e. respondents Nos.1 to 4 purchased the disputed land from the respondents Nos.5 to 7 (original owner).
18. It is also important to note that the appeal preferred by the State is barred by delay and latches. Respondent Nos.1 to 4 were holding agricultural land since 1946 and there was no objection raised for holding the agricultural land then. The State Government has preferred the Special Civil Application in 2011 challenging the order passed by the GRT dated 08.08.2008 in respect of sale deeds which were executed in 1985 when respondent Nos.1 to 4 purchased the land from respondent Nos.5 to 7. The Special Civil Application is preferred after the original owner initiated the proceedings and therefore, the appeal cannot be entertained at this stage only on the ground of delay and latches. The reliance placed in State of Gujarat vs. Prathmesh Farm Pvt. Ltd. reported in 2011 (1) GLR 159 is of no assistance in the background of facts of the present case. The Court was considering the circular dated 23.11.1998 which has been incorporated in the judgment in paragraph 5. Paragraph 5 reads thus :-
"5. After reference to several earlier circulars and resolutions, the impugned circular dated 23.11.1998, inter alia, stated: (free English translation)-
It has come to the notice of the Government that some private companies have purchased agricultural lands for agricultural use after obtaining permission under Section 63 of the Bombay Tenancy Act, 1948. Against purchase of land by private limited Page 37 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 companies for agricultural use, it is submitted that agricultural lands are being purchased by private limited companies and corporate bodies for speculative purposes. Thus the above facts came to the notice of the State Government.
The purpose of the Bombay Tenancy Act, 1948 is to ensure holding of agricultural land by tenants, labourers and agricultural land holders. Agriculturist as defined in Section 2(2) of the Act means a person who cultivates land personally; and under Section 2(6) to cultivate personally means to cultivate land on one's own account by one's own labour, or by the labour of any member of one's family, or under the personal supervision of oneself or any member of one's family by hired labour or by servants on wages payable in cash or kind but not in crop share. According to Section 2(5), to cultivate with its grammatical variations and cognate expressions means to till or husband the land for the purpose of raising or improving agricultural produce, whether by manual labour or by means of cattle or machinery, or to carry on any agricultural operation thereon.
Since the word person is defined in Section 2(11) of the Act, its definition as given in the Bombay General Clauses Act, 1904 could not be applied and a company constituted as a juristic person under the Companies Act cannot be considered to be an agriculturist. Having regard to this legal provision, there is no provision under Section 63 of the Act for acquisition of agricultural land by companies as non-agriculturist. The District Collectors, Prant Officers, Taluka Mamlatdars and Agricultural Tribunals have to proceed accordingly, keeping in view the aforesaid provisions."
It is apposite to mention that the instructions were issued by the said circular to be followed by the revenue officers. The said judgment is therefore not applicable to the facts of the present case since the sale being of 23.08.1985, 17.08.1985 and 28.08.1985 prior to the circular.
19. In addition to the above mentioned, this court while considering the appeals placed a pertinent query to the Page 38 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 counsels appearing for the appellants in both the appeals with regards to the applicability of bar of Section 63 of the Act for the companies holding agricultural land prior to the coming into force of the 1948 Act. We also sought assistance on the legal tenability of their submission with regards to such bar being operative on the transactions being involved, but the same could not be answered by the appellants to assist the legal position to controvert the findings of the Learned Single Judge in any manner.
20. While dealing with the present appeal, one has to bear in mind that a intra Court appeal is really not a statutory appeal preferred against the judgment and order of an inferior to the superior Court. The appeal inter se in a High Court from one Court to another is really an appeal from one coordinate Bench to another Coordinate Bench and it is for this reason that a writ cannot be issued by one Bench of the High Court to another Bench of the High Court nor can even the Supreme Court issue writ to a High Court. Thus, unlike an appeal, in general, an intra Court appeal is an appeal on principle and that is why, unlike an appeal, in an ordinary sense, such as a criminal appeal, where the whole evidence on record is examined afresh by the appellate Court, what is really examined, in an intra Court appeal, is the legality and validity of the Judgment and/or Order of the Single Judge and it can be set aside or should be set aside only when there is a patent Page 39 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022 C/CA/566/2019 JUDGMENT DATED: 14/07/2021 error on the face of the record or the judgment is against the established or settled principle of law. If two views are possible and a view, which is reasonable and logical, has been adopted by a Single Judge, the other view, howsoever appealing such a view may be to the Division Bench, it is the view adopted by the Single Judge, which should, normally, be allowed to prevail. Hence, the impugned judgment of the learned Single Judge should not be completely ignored and this Court has to consider the judgment and order in its proper perspective and if this Bench, sitting as an appellate Bench, is of the view that the decision has been arrived at by the learned Single Judge without any material error of fact or law, then, the judgment, in question, should be allowed to prevail.
21. In the result, both these appeals fail and are hereby dismissed. Consequently the civil applications also stand disposed of.
(J. B. PARDIWALA, J) (VAIBHAVI D. NANAVATI,J) K.K. SAIYED Page 40 of 40 Downloaded on : Sat Jan 15 23:57:23 IST 2022