Gujarat High Court
Bhikhabhai Maganbhai vs Gujarat Revenue Tribunal on 3 January, 2024
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
NEUTRAL CITATION
C/SCA/20565/2023 ORDER DATED: 03/01/2024
undefined
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20565 of 2023
==========================================================
BHIKHABHAI MAGANBHAI
Versus
GUJARAT REVENUE TRIBUNAL
==========================================================
Appearance:
MR.DARSHAN A. DAVE(7921) for the Petitioner(s) No.
1,2,2.1,2.2,3,3.1,3.2,3.3,3.3.1,3.3.2,3.4,4
for the Respondent(s) No. 1,3,4,7,7.1,7.2,7.3
MR. NIKUNJ KANARA, AGP on ADVANCE COPY SERVED TO
GOVERNMENT PLEADER/PP for the Respondent(s) No. 2
MR CHINMAY M GANDHI(3979) for the Respondent(s) No. 5,6
==========================================================
CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 03/01/2024
ORAL ORDER
1. By way of this petition, the petitioners have challenged the order dated 06.04.2023 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN/BA/101 of 2016 and also order dated 15.12.2015 passed by the Deputy Collector (Land Reforms and Appeals) in Tenancy Appeal No. 53 of 2015 and has further prayed for declaration that the order dated 22.06.2015 passed by the Mamlatdar and ALT, Daskroi is just, proper and legal.
2. Heard learned advocate Mr. Vijay Patel appearing with learned advocate Mr. Darshan Dave for the petitioners, learned AGP Mr. Nikunj Kanara appearing for the respondents no. 1, 2 and 3 and learned Senior Advocate Mr. M. B. Gandhi with learned advocate Mr. Chinmay Gandhi for the respondents no. 5 and 6.
Page 1 of 9 Downloaded on : Thu Jan 04 20:42:07 IST 2024 NEUTRAL CITATION C/SCA/20565/2023 ORDER DATED: 03/01/2024 undefined
3. Though notice is not issued as the respondents no. 5 and 6 have appeared on caveat through learned Senior Advocate Mr. M. B. Gandhi assisted by learned advocate Mr. Chinmay Gandhi who filed reply in the petition and therefore, today rejoinder was tendered by learned advocate Mr. Patel, the same is taken on record.
4. The petitioners who are the owner of the land admeasuring 2563 sq. mtrs. situated at Village: Hansol, Taluka: Asarva, District:
Ahmedabad being land Survey No. 306/3 and they have already sold the aforesaid land to the respondents no. 4, 5 and 6 as back as in the year 1999 by way of a registered sale deed executed through power of attorney holder of the petitioners.
5. It is the case of learned advocate Mr. Vijay Patel for learned advocate Mr. Darshan Dave for the petitioners that the respondent no. 5 had created a forged power of attorney in respect of total land of Survey No. 360 paiki Block C admeasuring 3065 sq. mtrs. which according to the petitioners was a forged power of attorney and on the basis of the aforesaid forged power of attorney, the respondent no. 4 sold the land in question to his father namely Ishwarbhai Topandas Vadhva by way of a registered sale deed having registration No. 1670 of 1999 and for which the revenue entry was mutated being Mutation Entry No. 2856 dated 26.05.1999.
5.1. According to the petitioners, since the aforesaid sale has taken place fraudulently even the notice under section 135 (D) also was not served upon the petitioners. The petitioners challenged the aforesaid power of attorney as well as sale transaction executed Page 2 of 9 Downloaded on : Thu Jan 04 20:42:07 IST 2024 NEUTRAL CITATION C/SCA/20565/2023 ORDER DATED: 03/01/2024 undefined through their power of attorney by filing the Civil Suit No. 1604 of 2006 before the City Civil Court, Ahmedabad. After the sale deed was executed in the year 1999 and the suit challenging the power of attorney as well as sale transaction executed on the strength of the aforesaid power of attorney was filed in the year 2006. The petitioner no. 1 made an application on 07.05.2013 before the Mamlatdar and ALT, Daskroi seeking information pertaining to the agriculturist of the land bearing Block No. 284 of Village Muthiya admeasuring 2403 sq. mtrs. Pursuant to the aforesaid application, the Talati cum Mantri, Muthiya village had given a report stating that the land bearing Block no. 284 and 268 were government land which were allotted to four different persons in the year 1982 passed by the Deputy Collector on payment of Rs. 1054.80/- to the Government and at the relevant point of time, when the land was allotted to those four persons name of Ishwarbhai Topandas Vadhva was not there in the order but only in the year 1992-1993, it was added subsequently without there being any evidence lead by the Talati - cum - Mantri. The report also indicated that Ishwarbhai Topandas Vadhva was also having a certificate as an agriculturist and on the strength of the same, he had purchased the other parcel of land as well.
5.2. In the year 2014, the petitioners have made an application to the Mamlatdar and ALT, Daskroi in respect of the land bearing Block no. 284 and 268 of Village: Muthiya by way of Ganot Case No. 9 of 2014 and the same was disposed of by order dated 28.04.2015 by the Mamlatdar and ALT, Daskroi as the matter pertains to breach of section 84 (C) of the Tenancy Act.
Page 3 of 9 Downloaded on : Thu Jan 04 20:42:07 IST 2024 NEUTRAL CITATION C/SCA/20565/2023 ORDER DATED: 03/01/2024 undefined
5.3. Thereafter, in the year 2014 itself, the petitioners made an application to the Mamlatdar and ALT, Daskroi with respect of Mutation Entry No. 2856 dated 26.05.1999 of Hansol village, Asarva and drew the attention of the authority that Ishawarbhai Topandas Vadhva was wrongly claiming to be an agriculturist and actually he has not an agriculturist and requested to initiate the necessary proceedings under the Tenancy Act.
5.4. Pursuant to that application preferred by the petitioners, the Mamlatdar and ALT, Daskroi initiated the proceedings for breach of section 63 of the Tenancy Act and in Ganot Case No. 84-C/08/2014 vide order dated 22.06.2015 held the transfer of land in question in favour of the respondents no. 5 and 6 to be invalid under section 84 (2) and vested the land into Government under section 84 (3).
5.5. The respondents no. 5 and 6 challenged the aforesaid order before the Deputy Collector (Land Reforms and Appeals) Ahmedabad by way of Tenancy Appeal No. 53 of 2015 and the Deputy Collector (Land Reforms and Appeals) Ahmedabad partly allowed the appeal preferred by the respondents no. 5 and 6 and quashed and set aside the order dated 22.06.2015 passed by the Mamlatdar and ALT, Daskroi and remanded the matter back to the Mamlatdar and ALT, Daskroi.
5.6. The respondents no. 5 and 6 herein challenged the aforesaid order dated 15.12.2015 passed by the Deputy Collector (Land Reforms and Appeals) Ahmedabad before the Gujarat Revenue Tribunal by filing Revision Application No. TEN/BA/101/2016 and the Gujarat Revenue Tribunal vide order dated 06.04.2023 allowed Page 4 of 9 Downloaded on : Thu Jan 04 20:42:07 IST 2024 NEUTRAL CITATION C/SCA/20565/2023 ORDER DATED: 03/01/2024 undefined the revision application preferred by the respondents no. 5 and 6 and quashed and set aside the order passed by the Mamlatdar and ALT, Daskroi dated 22.06.2015 as well as the order dated 15.12.2015 passed by the Deputy Collector (Land Reform and Appeal), Ahmedabad.
5.7. Being aggrieved by the aforesaid order dated 06.04.2023 passed by the Gujarat Revenue Tribunal in Revision Application No. TEN/BA/101/2016, the petitioners have preferred this petition.
6. Learned advocate Mr. Vijay Patel appearing with learned advocate Mr. Darshan Dave for the petitioners submitted that the respondents no. 5 and 6 who are the legal heirs of deceased - Ishwarbhai Topandas Vadhva have acquired the property despite the agricultural land by way of a registered sale deed by way of a fraudulent power of attorney. He submitted that even the report of the Mamlatdar, Muthiya also indicates that Ishwarbhai Topandas Vadhva was never an agriculturist and despite that he succeeded in getting a certificate as an agriculturist and on the basis of that, he purchased agricultural land and therefore, the transaction in respect of subject land is lead by section 63 of the Tenancy Act and therefore, the Mamlatdar and ALT, Daskroi has rightly passed an order holding the sale in favour of the respondents no. 5 and 6 to be invalid and vested the land into Government.
6.1. Learned advocate Mr. Patel submitted that the respondents no. 5 and 6's act of purchasing the land is a fraudulent act and any act of fraud would vitiate the delay and therefore, delay would not come in way of revenue authorities in initiating the Page 5 of 9 Downloaded on : Thu Jan 04 20:42:07 IST 2024 NEUTRAL CITATION C/SCA/20565/2023 ORDER DATED: 03/01/2024 undefined proceedings against the respondents no. 5 and 6 and therefore, the Gujarat Revenue Tribunal was not justified in quashing and setting aside the orders passed by the Mamlatdar and ALT, Daskroi and the Deputy Collector (Land Reforms and Appeals) by considering the fact that the proceedings were initiated after a delay of 15 years.
6.2. Learned advocate Mr. Patel upon a query that after selling the land in question, how the petitioners can initiate the proceedings against the respondents no. 5 and 6 to whom the sale deed is executed by the petitioners themselves, learned advocate Mr. Patel submitted that the petitioners still have the locus to initiate the proceedings against the respondents no. 5 and 6 as the petitioners have already challenged the power of attorney as well as sale deed by way of Regular Civil Suit which is already pending since 2006 and therefore, as the petitioners' claim over the land in question has not been rejected outrightly, the petitioners can prefer an application and thereby, any proceedings initiated upon an application made by the petitioners can be said to be legal and valid as the petitioners have the locus.
7. Learned Senior Advocate Mr. M. B. Gandhi appearing with learned advocate Mr. Chinmay Gandhi for the respondents no. 5 and 6 vehemently opposed this petition and submitted that the proceedings are initiated against the petitioners for breach of sections 63 and 84 of the Tenancy Act after a period of 15 years as the land in question was purchased by way of a registered sale deed in the year 1999 and the proceedings were initiated in the year 2014. He submitted that such inordinate delay is impermissible and there are catena of decisions of this Court as Page 6 of 9 Downloaded on : Thu Jan 04 20:42:07 IST 2024 NEUTRAL CITATION C/SCA/20565/2023 ORDER DATED: 03/01/2024 undefined well as Hon'ble Supreme Court that such suo moto revisional powers are required to be exercised within some reasonable time.
7.1. Learned Senior Advocate Mr. Gandhi further submitted that the petitioners do not have any locus in respect of the land in question and therefore, no proceedings could have been initiated at his behest for the reason that the petitioners have already pocketed the consideration in respect of the sale of land and a seller after pocketed the consideration does not have any right to challenge the sale deed or once they themselves is party to the sale, he cannot claim that sale transaction is done in favour of an non-agriculturist and therefore, the proceedings be initiated against the respondents no. 5 and 6.
7.2. Learned Senior Advocate Mr. Gandhi mainly submitted that in any case such initiation of the proceedings after a delay of 15 years is not permissible under the Law and therefore, the Gujarat Revenue Tribunal has rightly taken the aforesaid aspect into consideration and quashed and set aside the order passed by both the revenue authorities i.e. Mamlatdar and ALT, Daskroi and Deputy Collector. Learned Senior Advocate Mr. Gandhi, therefore, prayed for dismissal of this petition.
8. Learned AGP Mr. Nikunj Kanara appearing for the respondent - State submitted that though the dispute is of private nature, considering the fact that the Gujarat Revenue Tribunal has taken into consideration the material on record and in its true perspective, this Court may pass an appropriate order.
9. I have heard learned counsels appearing for the respective parties Page 7 of 9 Downloaded on : Thu Jan 04 20:42:07 IST 2024 NEUTRAL CITATION C/SCA/20565/2023 ORDER DATED: 03/01/2024 undefined and perused the record. On perusal of record indicates that the sale deed in respect of the land in question was executed in favour of the respondents no. 5 and 6, whether the sale was a genuine or fraudulent sale is a matter of evidence which will be led in due course by the Civil Court but today, upon an inquiry from the Court, both learned counsels submitted that there is no stay in respect of the Civil Suit preferred by the petitioners. Further it was brought to the notice of the Court by learned Senior Advocate Mr. Gandhi that the present petitioners preferred an Inquiry Case No. 33 of 2006 and even that said criminal inquiry is dismissed for default vide order dated 14.12.2019 and thereafter no further actions are taken by the petitioenrs to restore the aforesaid criminal complaint. He therefore submitted that even the alleged fraud has also not been established either in the civil proceedings or in the criminal complaint and therefore, in absence of fraud having been establish, the Court may not consider the issue on hand on the aspect of fraud.
10. Considering the aforesaid submissions as well as on perusal of record, the undisputed fact is the sale deed is executed in favour of the respondents no. 5 and 6 in the year 1999 which was a subject matter of challenge in the year 2006 and thereafter, the proceedings under the Tenancy Act for breach of sections 63 and 84 are initiated only in the year 2014 i.e. after a delay of 15 years and therefore, the Gujarat Revenue Tribunal has rightly considered the aforesaid aspect and quashed and set aside the orders passed by the Mamlatdar and ALT, Daskroi as well as the Deputy Collector. Further, since the suit is pending before the parties, I do not deem it appropriate to make any other observations in respect of subject matter except the fact that on Page 8 of 9 Downloaded on : Thu Jan 04 20:42:07 IST 2024 NEUTRAL CITATION C/SCA/20565/2023 ORDER DATED: 03/01/2024 undefined perusal of order passed by the Gujarat Revenue Tribunal, this Court do not find that the Gujarat Revenue Tribunal has committed any error while passing the impugned order. Resultantly, this petition is required to be dismissed and the same is dismissed.
(NIRZAR S. DESAI,J) VARSHA DESAI Page 9 of 9 Downloaded on : Thu Jan 04 20:42:07 IST 2024