Gujarat High Court
Jiviben Ramubhai Bharwad & 5 vs State Of Gujarat & 5 on 8 September, 2017
Author: J.B.Pardiwala
Bench: J.B.Pardiwala
C/SCA/13533/2010 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 13533 of 2010
TO
SPECIAL CIVIL APPLICATION NO. 13535 of 2010
==========================================================
JIVIBEN RAMUBHAI BHARWAD & 5....Petitioner(s)
Versus
STATE OF GUJARAT & 5....Respondent(s)
==========================================================
Appearance:
MR TATTVAM K PATEL, ADVOCATE for the Petitioner(s) No. 1 - 6
MS. THAKORE, ASST. GOVERNMENT PLEADER for the Respondent(s) No.
1
NOTICE SERVED BY DS for the Respondent(s) No. 2 - 6
==========================================================
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 08/09/2017
COMMON ORAL ORDER
1. As the issues raised in all the captioned petitions are the same, those were heard analogously and are being disposed of by this common order.
2. For the sake of convenience, the Special Civil Application No.13533 of 2010 is treated as the lead matter.
3. By this application under Article 227 of the Constitution of India, the applicants have prayed for the following reliefs;
"(A) Issue a writ of mandamus or any other writ, order or direction quashing and setting aside the order dated 15.6.2010 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BA/97/08 and restore the order dated 23.02.1998 passed by the Deputy Collector Page 1 of 11 HC-NIC Page 1 of 11 Created On Sun Oct 01 17:00:44 IST 2017 C/SCA/13533/2010 ORDER (Land Reform), Ahmedabad in Tenancy Revision No.742/1997; and (B) Declare that the land in question is of 'Old Tenure' (C ) Pending admission, hearing and final disposal of the present petition, stay the execution and implementation of the order dated 15.06.2010 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BA/97/08.
(D) Pass the other and further order/s as deemed fit in the interest of justice."
4. This petition was disposed of by a learned Single Judge vide order dated 14th October, 2010, which reads as under;
"1. By way of this petition, the petitioner has prayed to quash and set aside the order dated 15.06.2010 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN/BA/97/08, and further to restore the order dated 23.02.1998 passed by the Deputy Collector in Tenancy Revision No. 742/1997.
2. Today, when the matter was taken up for hearing, learned counsel for the petitioner has drawn attention of this Court to a decision rendered in Special Civil Application No.510/2009 dated 06.04.2009, more particularly, on the observations made in Para 10, therein, which reads as under;
"10. Having heard the learned advocates for the parties and having considered the orders passed by the Tribunal, this Court is of the view that the order passed by the Mamlatdar and the ALT way back in 1970 was challenged before the Deputy Collector in 2000 i.e after more than 30 years. Moreover, the State Government was a party and still without hearing the state government the Deputy Collector has entertained the appeal and decided the appeal in favour of the present petitioners. The period of 30 years cannot be said to be a reasonable period and even the order passed by the Mamlatdar cannot be said to be an illegal order. Even otherwise, the issue raised by the petitioners in the Page 2 of 11 HC-NIC Page 2 of 11 Created On Sun Oct 01 17:00:44 IST 2017 C/SCA/13533/2010 ORDER present petition is squarely covered by the decision of this Court referred hereinabove as well as by the Tribunal, wherein all the submissions made by Mr Gandhi before this Court in the present petition were considered. In light of this finding arrived at by the Tribunal cannot be said to be unreasonable or perverse finding. This Court is in full agreement with the finding recorded by the Tribunal in the impugned orders and hence, no interference is called for in the present petition.
3. Learned counsel for the petitioner has stated at the bar that the petitioner is ready to pay the amount of premium, along with interest, which may be calculated from the date on which the petitioner has purchased the land in question, i.e. w.e.f. 27.07.2004, for the purpose of converting the land in question from new tenure to old tenure.
4. Heard. Having considered the decision relied upon by learned counsel for the petitioner and since the petitioner has shown his readiness to pay the amount of premium, along with interest, from the date of purchase of the land in question for the purpose of converting the land in question from new tenure to old tenure. I am of the opinion that ends of justice would be met by directing the District Collector-respondent no.1 herein to decide the amount of premium for converting the land in question from new tenure to old tenure.
5. In view of the above, the District Collector, Ahmedabad is directed to decide the amount of premium for the purpose of converting the land in question from new tenure to old tenure w.e.f. 27.07.2004 and shall, thereafter, communicate the same to the petitioner within a period of four weeks from today. On receipt of such communication from the District Collector, the petitioner shall pay up the amount of premium, along with interest @ 12% p.a. on the amount of premium, as may be fixed by the Collector starting from 01.08.2004. After the aforesaid exercise is over, the N.A. permission which was rejected by the District Collector, vide order dated 06.05.2008, shall be reviewed and reconsidered, either from the date on which the application was preferred by the petitioner for grant of NA permission or Page 3 of 11 HC-NIC Page 3 of 11 Created On Sun Oct 01 17:00:44 IST 2017 C/SCA/13533/2010 ORDER from the date of decision that may be rendered by the Division Bench of this Court in the L.P.A. pending before this Court and shall decide the same in accordance with law.
5. With the above observations and directions, the petition stands disposed of."
5. Thereafter, a Misc. Civil Application- For Review No.1283 of 2011 came to be filed, which came to be disposed of vide order dated 12.05.2011. The order reads as under;
"1.0 This application has been preferred by the applicant for review/modification of the order dated 14.10.2010 passed by this Court in Special Civil Application No. 13533 of 2010 and for direction directing the respondent authorities to compute and levy premium on the basis of the market value as on the date of transfers of the subject lands and for the purpose of non-agricultural use.
2.0 Looking to the facts and circumstances of the case and with the consent of the parties, the order dated 14.10.2010 passed by this Court in Special Civil Application No. 13533 of 2010 is hereby recalled and restored to original file. The matter to be placed for hearing before the appropriate Court. The application stands disposed of accordingly. Notice is discharged with no order as to costs. "
6. Thus, in view of the order passed in the review application, the main matter was ordered to be restored to its original file. That is how the matter has, once again, been placed before this Court for hearing.
7. The facts of this case may be summarized as under;
7.1 The land bearing original Survey No.133 of village Makarba, Taluka: City, District: Ahmedabad was divided into three survey numbers, i.e., Survey No.133/1, Survey Page 4 of 11 HC-NIC Page 4 of 11 Created On Sun Oct 01 17:00:44 IST 2017 C/SCA/13533/2010 ORDER No.133/2/2 and Survey No.133/3. We are concerned with Survey No.133/1 in the present case. The land bearing Survey No.133 was owned by the Swami Narayan Temple. One Kamabhai Akhibhai was a protected tenant of the land bearing Survey No.133/1. At the relevant time, the inquiry under section 32(G) of the Tenancy Act was closed because the public religious institutions were exempted under section 88(B) of the Tenancy Act. The entry bearing No.4064 dated 12.10.1960 came to be posted in this regard. Thereafter, on coming into force of the Devasthan Inam Abolition Act, 1969, the exemption granted to the public religious institutions came to be revoked and the land in question became subject to the provisions of the Tenancy Act.
8. The Mamlatdar & ALT, in the Tenancy Case No.802/75/32G/Makarba declared Kamabhai Akhibhai to be the deemed purchaser of the land in question and fixed the purchase price at Rs.4145. The case of the applicants herein is that while passing the order, the Mamlatdar & ALT committed an illegality in imposing the restrictions of section 43 of the Tenancy Act. The case of the applicants is that, at the time of insertion of section 88(E) of the Tenancy Act, no corresponding amendment was carried out in section 43 of the Tenancy Act. The case is that the intention of the legislature was clear that no restrictions could be put when the land is purchased by a tenant pursuant to the cessation of exemption in favour of the public religious institutions. The corresponding amendment came into effect from 20th April, 1987. The case put up is that for the period between 15th November, 1969 and 20th April, 1987, if any land is given to the tenant of a public charitable institution, then the restriction of section 43 would not apply Page 5 of 11 HC-NIC Page 5 of 11 Created On Sun Oct 01 17:00:44 IST 2017 C/SCA/13533/2010 ORDER to such purchase by the tenant.
9. Mr. Tatvam Patel, the learned counsel submitted that the Gujarat Revenue Tribunal committed a serious error in holding that the land in question is of a new tenure. According to Mr. Patel, the land in question is of old tenure. In such circumstances, his clients should not be asked to deposit the premium for the purpose of changing the tenure of the land from new tenure to old tenure. The applicants claim to be the bonafide purchasers of the land in question. It is submitted that after the order of the Deputy Collector dated 23rd February, 1998, the land in question came to be converted to old tenure. Even the Village Form No.7 and 12 displayed the said position. Relying upon the revenue records, the applicants purchased the land in question on 31st March, 2004. The applicants paid the entire consideration of the land in question considering the same to be an old tenure.
10. Mr. Patel submits that the conversion of the land to new tenure is quite prejudicial to his clients. The State is estopped from saying that the land is of a restricted tenure.
11. Having head the learned counsel appearing for the parties and having considered the materials on record, I am of the view that no error, not to speak of any error of law, could be said to have been committed by the authorities in passing the impugned orders.
12. I am not impressed by the submission of Mr. Patel that, as section 88(E) of the Tenancy Act came to be included in section 43 of the Tenancy Act in the year 1987, the restrictions Page 6 of 11 HC-NIC Page 6 of 11 Created On Sun Oct 01 17:00:44 IST 2017 C/SCA/13533/2010 ORDER of section 43, imposed at the relevant point of time, was not just and proper. I am saying so because this issue is squarely covered by a decision of this Court in the case of Patel Narottambhai Ranchhoddas through Legal Representatives vs. State of Gujarat, 2001 (1) GLH 446. I may quote the judgment as under;
" 3. The petitioner was a tenant of land bearing Survey No. 1035 admeasuring 1 Acre 8 Gunthas and land bearing Survey No. 1036 admeasuring 1 Acre 16 Gunthas situated at Mehsana which belonged to one charitable trust - Shree Hanuman Sanstha. Upon enactment of Section 88-E of the Bombay Tenancy & Agricultural Lands Act, 1948 [hereinafter referred to as, `the Act'], the petitioner, on the specified date [i.e., 15th November, 1969] became deemed purchaser of the said lands and the provisions of Section 32 to 32-R [both inclusive] became applicable. Since then, pursuant to the proceedings under Section 32-G of the Act, by order dated 30th November, 1971 made by the Mamlatdar & Agricultural Lands Tribunal, the petitioner was declared to be the owner and the price of the lands was determined. The ownership of the petitioner of the said lands was declared to be of `restrictive tenure' subject to Section 43 of the Act. The said order in so far as it made the petitioner's holding to be of restrictive tenure was challenged by the petitioner in Tenancy Appeal No. 15 of 1988 before the Prant Officer. The Prant Officer, Mehsana by his order dated 15th October, 1988 held that since the amendment to Section 43 of the Act, the petitioner's holding of the said lands became subject to the restrictions envisaged under Section 43 of the Act. Feeling aggrieved, the petitioner preferred the above revision application before the Revenue Tribunal, which, by the judgment and order dated 5th September, 1991 confirmed the order of the Prant Officer, Mehsana. Feeling aggrieved, the petitioner has preferred the present petition.
4. Mr. Vyas has relied upon the judgment of this Court in the matter of Motibhai Nathabhai v. Trustee of Ramji Mandir [15 GLR 18]. He has submitted that by the said judgment, this Court has held Section 88-E of Page 7 of 11 HC-NIC Page 7 of 11 Created On Sun Oct 01 17:00:44 IST 2017 C/SCA/13533/2010 ORDER the Act to be prospective in its operation and similarly amendment in Section 43 made under the Gujarat Act XXI of 1987 shall be held to be prospective and only those acquisitions of land under Section 88-E which are effected after the effective date of amendment ie., on or after 20th April, 1987 shall be subject to the restrictions contained in Section 43 of the Act. However, admittedly, the petitioner had purchased the lands in the year 1971 and the petitioner's holding of the said lands shall not be affected by the restrictions contained in Section 43 of the Act.
5. Before I deal with the argument advanced by Mr. Vyas, it shall be fruitful to discuss the relevant law.
6. Section 32 of the Act provides, inter alia, that on the first day of April, 1957 [tiller's day] every tenant shall be deemed to have purchased from his landlord, free of all encumbrances subsisting thereon, on the said day, the land held by him as tenant. Section 32F of the Act provides for a right of tenant to purchase the land where landlord is a minor, or a widow, or a person subject to any mental or physical disability. Section 32G of the Act, inter alia, provides for the procedure to be followed by the Tribunal for determining the purchase price of the land. Section 32I of the Act provides, inter alia, that the sub-tenant shall be deemed to have purchased the land on the tiller's day. Section 32O of the Act provides, inter alia, that in case of tenancy created after the tiller's day, the tenant cultivating personally shall be deemed to have purchased the land on the date of expiry of one year from the commencement of such tenancy from the landlord, the land held by him. Section 43 of the Act [prior to its amendment by Gujarat Act-XXI of 1987] provides, inter alia, that no land or any interest therein purchased by tenant under Section 17-B, 32, 32F, 32I, 32O or sold to any person under Section 32P or 64 of the Act shall be transferred or shall be agreed to be transferred without previous sanction of the Collector and except in consideration of payment of such amount as the State Government may determine. Since its amendment by the Act of Gujarat-XXI of 1987 on and from 20th April, 1987, the lands purchased by a tenant under Section 32U, 43-1D or 88E have also been included in Section 43 and have been made subject to the restrictions Page 8 of 11 HC-NIC Page 8 of 11 Created On Sun Oct 01 17:00:44 IST 2017 C/SCA/13533/2010 ORDER contained in Section 43 of the Act. Section 88B of the Act, inter alia, exempts the lands which were the property of a Trust for an educational purpose, a hospital, Panjrapole or Gaushala from the application of the provisions of the Act mentioned in the said Section. Section 88E of the Act was inserted by the Gujarat Act-XVI of 1969. The said section provides that with effect on and from the specified date lands which are the property of an nstitution for public religious worship shall cease to be exempted from those provisions of the Act except sections 31 to 31D [both inclusive] from which they were exempted under Section 88B and all certificates granted under that section in respect of such lands shall stand revoked. Sub-section (2) thereof provides that in case of tenancy subsisting immediately before the specified date, the tenants shall be deemed to have purchased the land on the specified date and the provisions of Section 32 to 32R [both inclusive] shall apply. Thus, the lands which were earlier exempted from the rigours of the Act under section 88-B of the Act have been subjected to the same rigours under Section 88-E of the Act.
7. I see no substance in the contention raised by Mr. Vyas. In the matter of Motibhai Nathabhai [Supra], this Court held that Section 88-E was prospective in nature so that it would not affect the proceedings which were initiated on the basis of exemption granted under Section 88-B of the Act. The Court further held that those of the landlords who had acquired exemption under Section 88-B of the Act but had not initiated action for terminating the tenancy shall be hit by Section 88-E of the Act. In other words, Section 88-E was held to be prospective only to the extent that it would not affect the pending proceedings. That is, in case of a land where exemption was granted under Section 88B of the Act but no proceedings for termination of tenancy were initiated, such exemption would stand revoked on the effective date ie., 15th November, 1969 under Section 88E of the Act. Section 43 of the Act contains restrictions against transfer of lands acquired under the provisions referred to in the said section. Prior to its amendment by Act of 21 of 1987, the lands purchased by a tenant under Section 17-B, 32, 32-F, 32-I and 32-O or sold to any person under section 32-P or 64 were made subject to the restrictions contained in the said Page 9 of 11 HC-NIC Page 9 of 11 Created On Sun Oct 01 17:00:44 IST 2017 C/SCA/13533/2010 ORDER section. After its amendment by the Gujarat Act No. XXI of 1987, the land purchased by a tenant under Section 32-U, 43-1D and 88-E are also made subject to the restrictions under Section 43 of the Act. In my view, only construction that can be put is that if a tenant is deemed to have purchased a land under Section 88-E of the Act and transfers such land on or after 20th April, 1987, such transfer shall be subject to restrictions contained in Section 43 of the Act. No other construction is possible because all lands which were of an Institution for public religious worship were deemed to have been purchased by the tenant on and with effect from the specified date ie., 15th November, 1969. All such tenants became the deemed purchasers of the lands in their possession on 15th November, 1969. If the argument of Mr. Vyas were accepted, all lands purchased under Section 88-E prior to 20th April, 1987 should be considered to be of old tenure lands. In that case, inclusion of Section 88-E in section 43 shall become nugatory since all such lands are deemed to have been purchased on 15th November, 1969 and no land can be said to have been purchased under Section 88-E of the Act on or after 20th April, 1987. Necessarily, therefore, inclusion of Section 88-E in section 43 of the Act is intended to govern the transfer of land on and from the date of the amendment of the said Section, ie. 20th April, 1987, which under Section 88-E of the Act the tenant is deemed to have purchased on 15th November, 1969, irrespective of the actual date of such purchase and payment of price thereof. In my view, therefore, the authority below as well as the learned Tribunal are right in holding that since 20th April, 1987, the lands purchased by the petitioner under Section 88-E of the Act are subject to the restrictions contained in Section 43 of the Act."
13. It appears that for the purpose of conversion of the land from new tenure to old tenure, all the applicants of the three petitions have deposited the amount of premium in accordance with law. Of course, such deposit was without prejudice to their rights and contentions. As all the three petitions fail, the authority concerned shall now proceed to pass the necessary orders for conversion of the land as the Page 10 of 11 HC-NIC Page 10 of 11 Created On Sun Oct 01 17:00:44 IST 2017 C/SCA/13533/2010 ORDER amount of premium has already been deposited.
14. Ms. Thakore, the learned AGP, brings it to my notice that the order, converting the land from new tenure to old tenure, has already been passed by the authority. The same is ordered to be taken on record.
15. In view of the above, all the three petitions fail and are hereby rejected. Notice is discharged.
(J.B.PARDIWALA, J.) Vahid Page 11 of 11 HC-NIC Page 11 of 11 Created On Sun Oct 01 17:00:44 IST 2017