Gujarat High Court
State Of Gujarat vs Nandubhai Mahasukhbhai Patel on 9 January, 2020
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt, A. P. Thaker
C/LPA/304/2019 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 304 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 13789 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
In
R/LETTERS PATENT APPEAL NO. 304 of 2019
With
R/LETTERS PATENT APPEAL NO. 445 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9086 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
In
R/LETTERS PATENT APPEAL NO. 445 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9086 of 2017
With
R/LETTERS PATENT APPEAL NO. 446 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9087 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
In
R/LETTERS PATENT APPEAL NO. 446 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9087 of 2017
With
R/LETTERS PATENT APPEAL NO. 447 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9088 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
In
R/LETTERS PATENT APPEAL NO. 447 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9088 of 2017
With
R/LETTERS PATENT APPEAL NO. 448 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9089 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
In
R/LETTERS PATENT APPEAL NO. 448 of 2019
In
Page 1 of 27
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C/LPA/304/2019 CAV JUDGMENT
SPECIAL CIVIL APPLICATION NO. 9089 of 2017
With
R/LETTERS PATENT APPEAL NO. 449 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9090 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2019
In
R/LETTERS PATENT APPEAL NO. 449 of 2019
In
SPECIAL CIVIL APPLICATION NO. 9090 of 2017
FOR APPROVAL AND SIGNATURE: Sd/-
HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE DR.JUSTICE A. P. THAKER
=========================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
=========================================
STATE OF GUJARAT
Versus
NANDUBHAI MAHASUKHBHAI PATEL
=========================================
Appearance:
MS NISHA THAKORE AGP (1) for the Appellant(s) No. 1,2
for the Respondent(s) No. 1,10,2,3,4,5,7,8,9
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 6
=========================================
CORAM: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT
and
HONOURABLE DR.JUSTICE A. P. THAKER
Page 2 of 27
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C/LPA/304/2019 CAV JUDGMENT
Date : 09/01/2020
CAV JUDGMENT
(PER : HONOURABLE DR.JUSTICE A. P. THAKER)
1. Being aggrieved and dissatisfied with the common judgment and order dated 10.09.2018 passed by the learned Single Judge in Special Civil Applications No.9086 of 2017 to 9090 of 2017 with Special Civil Application No.13789 of 2017 whereby the learned Single Judge has allowed all petitions and directed the Collector to decide the application of the petitioners for N.A. Permission, the original respondents have filed all these Letters Patent Appeals under Clause 15 of the Letters Patent Appeal.
2. Considering the facts that the learned Single Judge has passed the common judgment and order dated 10.09.2018 in Special Civil Applications No.9086 of 2017 to 9090 of 2017 with Special Civil Application No.13789 of 2017, all these appeals being arising out the same common judgment and order, all these appeals are heard together and are being disposed of by this common judgment.
3. For the sake of brevity and convenient, the parties are referred to as per their status in main petitions.
4. In the first five matters (Special Civil Application No.9086 of 2017 to Special Civil Application No. 9090 of 2017) which are Page 3 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT filed under Article 226 of the Constitution, the petitioners have sought direction to forthwith issue Non-Agriculture Permission in respect of the land in question (which is different in each petition) without insisting to undergo any other formality under the guise of the administrative instruction dated 17.02.2017 and to hold and declare that the above instructions cannot be made applicable retrospectively to the case of the petitioners.
4.1 As stated in the petitions, the petitioners purchased the lands in question at different times but much before 30.06.2015 from the Co-operative Societies. That at the time of processing their applications for NA Permission, consent of the petitioners was taken to deposit 10% premium amount in the context of Section 63AB of the Act and then notice was issued to them by the Mamlatdar and the petitioners have deposited such amount.
4.2 In the last petition (Special Civil Application No.13789 of 2017), the petitioners have prayed following reliefs.
(a) admit and allow the captioned petition;
(b) issue a writ of certiorari or any other writ/ order or direction by quashing and setting aside the order dated 20.03.2017 passed by the Collector, Ahmedabad vide CB/__/NA/Oganaj/S.no.1160/1 etc./ SR-644/2016; direct the Collector to grant the Non Agriculture use permission without considering the administrative instructions dated 17.02.2017, issued by the Revenue department, State of Gujarat, vide GNT-302013-1536- Z;
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(c) quash and set aside the administrative instructions dated 17.2.2017, issued by the Revenue department, State of Gujarat, vide GNT-302013-1536-Z; ALTERNATIVELY Declare that the administrative instructions dated 17.02.2017, issued by the Revenue department, State of Gujarat, vide GNT-302013-1536-Z applies prospectively and hence it would not apply to the case of the petitioners;
(d) Grant any other relief as deemed fit in the interest of justice.
(e) stay the implementation of administrative instructions dated 17.02.2017, issued by the Revenue Department, State of Gujarat vide GNT-302013-1536- Z; during the pendency of the captioned petition. 4.3 in the last petition as aforesaid, the petitioners are the agriculturists and they have purchased the lands in question from the Cooperative Society by registered sale deed on 02.12.2010 i.e. before June 2015. In this case, the Mamlatdar passed order after conducting inquiry under Section 63AB validating the sale transaction in favour of the petitioners on payment of 10% premium amount and such order was reviewed and confirmed by the Deputy Collector.
5. Considering the fact that the controversy involved in the matters is the same, the facts of Letters Patent Appeal No.304 of 2019 are taken as lead matter.
6. All the petitions are relating to interpretation of the provisions of the word "Person" used in Section 63AB of the Gujarat Tenancy and Agricultural Act, 1948 (hereinafter be referred to as "the Act"). The issue is that whether the term Page 5 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT "Person" denotes only the natural person/individual human being or it also includes juristic/legal person like company, co-operative society etc. As per the averments of the petitioners - respondents herein that Sadbhav Samudayik Kheti Sahakari Mandali Limited purchased the land in question and application under Section 63 of the Act was made to the Collector which came to be rejected by the Collector, Ahmedabad on 12.06.1996. The said order was challenged by the Society/Mandali before the Gujarat Revenue Tribunal whereby by an order dated 05.07.1999, the revision was allowed and due to that ex-post facto, permission, under Section 63 of the Act, came to be granted. In the year 2010, the Society/Mandali purchased some other parcels of land of Village: Ognaj and the society applied for permission for conversion of land into non-agricultural land which was rejected by the Collector on 01.07.2016. Once again, after satisfying the queries, another application was made to the Collector for N.A. Permission. The said application was also rejected on 29.02.2016 by the Collector on the ground that the petitioners had not produced any evidence to show that the permission under Section 63 of the Act obtained by the Society.
6.1 Meanwhile, in the year 2015, the State has amended the provisions in the said Act and thereby inserted Section 63AB. Page 6 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT On the basis of the said amendment, the petitioners applied on 25.07.2016 for regularization by paying 10% premium and also paid the same amount. That on 17.02.2017, Revenue Department issued administrative instructions with regard to the amended provisions of Section 63AB and clarified that if the land is purchased from the Society / Company then even if the purchaser is agriculturist, the land cannot be regularized by charging 10% premium and, therefore, vide order dated 20.03.2017, N.A. Permission came to be rejected. 6.2 Against that order, the respective petitioners have filed respective petitions before this Court for quashing and setting aside the administrative instruction and the order passed by the Collector and directing the Government to grant N.A. Permission ignoring the instruction dated 17.02.2017.
6.3 By impugned common judgment and order dated 10.09.2018 passed by the learned Single Judge allowing the petitions against which the State has preferred all these Letters Patent Appeals.
7. Heard Ms.Nisha Thakore, learned Assistant Government Pleader for the appellants - original respondents and Ms.Trusha Patel, learned counsel for respondent No.6 (original petitioner). Perused the materials placed on record Page 7 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT and the impugned judgment and oder.
8. Ms.Nisha Thakore, learned Assistant Government Pleader for the appellants - original respondents has, while referring to the provisions of the Act, submitted that the purpose of the Bombay Tenancy Act, 1948 is to ensure holding of the agricultural land by tenants, labourers and agricultural land holders. While referring to Section 2(2) of the Act, she has submitted that according to this Section, the agriculturist means a person who cultivates the land personally. She has submitted that under Section 2(6) of the Act to cultivate personally means to cultivate the 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 oneself or any member of one's family by hired labour or servants on wages payable in cash or kind but not in crop share. She has referred to Section 2(5) of the Act and Section 2(11) of the Act and has submitted that in view of these provisions, the juristic person cannot be a "Person" within the meaning of the Act. According to her, as the word "Person" in Section 2(11) of the Act has been defined, the definition of "Person" under the Bombay General Clauses Act, 1904 cannot be applied and a company constituted as a juristic person under the Companies Act or a co-operative society registered under the Cooperative Societies Act, cannot be considered to be an Page 8 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT agriculturist. While referring to all the provisions, she has submitted that 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. 8.1 While referring to the decision in the case of Prathmesh Farms Pvt. Ltd, she has submitted that in the said case, the challenge was the circular dated 23.11.1998 and the Division Bench of this Court has observed therein that the Tenancy Act and the Ceiling Act, though dealing with agricultural land have totally different purpose and the context in which the word "Person" is used in various provision thereof is equally different. She submitted that while the avowed object of the Ceiling Act is to place restrictions upon holding of agricultural land in excess of certain limits, the object of the Tenancy Act, inter alia, is to regulate and restrict the transfer of agricultural lands held by agriculturists, the agricultural labourers and artisans to non-agriculturists or for non- agricultural purpose. She submitted that the clear restrictions contained in Section 63 of the Act prohibits, subject to the exceptions, transfer of agricultural land to non-agriculturist (for agricultural purpose) which has to exclude legal persons or bodies incorporate, who, in the nature of things, cannot cultivate personally as per definition of the phrase in the Act. That definition of "Person" in the Bombay General Clauses Page 9 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT Act, 1904 will obviously be repugnant in the context of provisions of Section 63 of the Act and, therefore, it could not be read as incorporated in the definition of "Person" of the Act.
8.2 Ms.Thakore, learned Assistant Government Pleader has, while referring to the decision of the Apex Court in the case of Shri Kesheoraj Deo Sansthan, Karanja Vs. Bapurao Deoba, 1964 Maharashtra LJ 589, submitted that while dealing with the phrase "Personal Cultivation", the Apex Court has observed as under:-
"It should thus appear that the legislative intent clearly is that in order to claim cultivation as a personal cultivation there must be established a direct nexus between the person who makes such a claim, and the agricultural processes or activities carried on the land. In other words, all the agricultural operations, though allowed to be done through hired labour or workers must be under the direct supervision, control, or management of the landlord. It is in that sense that the words "Personal Supervision" must be understood. In other words, the requirement of person supervision under the third category of person cultivation provided for in the definition does not admit of an intermediary between the landlord and the labourer, who can act as agent of the landlord for supervising the operations of the agricultural worker. If that is not possible in the case of one landlord, we do not see how it is possible in the case of another landlord merely because the landlord in the later case is a juristic person"
8.3 According to her submissions, the administrative instructions issued by the State are legal and valid and amended Section 63AB cannot be read as permitting juristic person to cultivate the land personally. While assailing the findings of the learned Single Judge, she has submitted that the Page 10 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT interpretation made by the learned Single Judge regarding "Person" is not legally sustainable and the action of the revenue authority cannot be termed as illegal, when the transaction itself was dehors the object and provisions of law at the relevant time.
8.4 Ms.Thakore, learned Assistant Government Pleader has submitted that the principle of law of interpretation of statute is well settled that same word/definition of the word appearing in different statute are to be read in the context with the text and the object of that particular statute. That interpretation of word used in one statute cannot be applied for interpretation of word in different statute. She has urged to allow these appeals and to quash and set aside the impugned judgment and order of the learned Single Judge.
9. Per contra, Ms.Trusha Patel, learned counsel for respondent No.6 has vehemently submitted that the definition of the term "Person" has been properly interpreted by the learned Single Judge. While referring to Section 2(3) of the Act, she has submitted that this definition also includes Cooperative Society and under Section 2(4) of the Act Cooperative Farming Society are also recognized. She has submitted that in view of the provisions contained in Section 27(2)(b), it is provided that the tenant is a member of the Co-operative Farming Society can also sublet and in view of Section 27(3), Page 11 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT the tenant can mortgage the land to the Cooperative Society which can be attached or sold by the Cooperative Society. While referring to Section 31(B), she has submitted that it provides that no termination of tenancy if the tenant is a member of Cooperative Farming Society. While referring to various provisions under the Act which includes Sections 32P(2) I (a-i)(i), (v), (vii), 32P(2A), 84C(4)(ii) and Rule 36(d) of the Act as well as under Section 64A thereof, she has submitted that all these provisions clearly suggest that even the cooperative society is treated as a "Person". While referring to Section 63AA, she has submitted that it suggests that the restriction can be relaxed against the purchase of agricultural lands by non-agriculturists including institution, Company or Trust.
9.1 Ms.Patel, learned counsel has also submitted that the administrative action cannot defeat the statutory provisions of the Act. While referring to the various decisions, she has submitted that while deciding N.A. Application, the Collector cannot go into the aspect of validity or otherwise of sale and the administrative instruction cannot operate retrospectively. She has submitted that no proceedings under Section 84C has been initiated qua sale deeds executed in the year 1995. While deciding N.A. Application, the Collector cannot presume that the said sale deeds were invalid. According to Page 12 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT her version, the conversion of land into N.A remains mere formality if the land is included in N.A. Zone. 9.2 Ms.Patel, learned counsel has relied upon the following decisions:-
(i) Ramanlal Bhailal Patel Vs. State of Gujarat, (2008) 5 SCC 449;
(ii) Karnataka Bank Limited Vs. State of Andhra Pradesh, (2008) 2 SCC 254;
(iii) Regional Director, Employees State Insurance Corporation Vs. High Land Coffee Words of P F X Saldanha and Sons, (1991) 3 SCC 617;
(iv) Union of India Vs. M. Bhaskar, (1996) 4 SCC 416;
(v) State of Jharkhand and others Vs. Jitendra Kumar Srivastava and another, 2013 (3) GLH 178;
(vi) Rajiv Maheshkumar Mehta Vs. State of Gujarat, rendered in Special Civil Application No.14413 of 2011 and allied matters dated 09/10.05.2012;
(vii) State of Gujarat Vs. Rajiv Maheshkumar Mehta, rendered in Letters Patent Appeal No.22 of 2013 and allied matters dated 09.08.2016;
(viii) Ramanlal Nagardas Sheth Vs. M. S. Palnitkar, 1961 GLR 38;
(ix) P. Venugopal Vs. Union of India, (2008) 5 SCC 1;
(x) Laxmi Associates Vs. Collector, Vadodara, 2006 (3) GLR 1982;
(xii) Gujarat Krushi University Vs. D. M. Vegad and another, 1993 (2) GLH 149;
10. In the case of Ramanlal Bhailal Patel (supra), the Apex Court has held and observed in paras-23, 24 and 25 as under:-
23. The word 'person' is defined in the Act, but it is an inclusive definition, that is "a person includes a joint family." Where the definition is an inclusive definition, the use of the word 'includes' indicates an intention to enlarge the meaning of the word used in the Statute.
Consequently, the word must be construed as comprehending not only such things which they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. Thus, where a definition uses the word 'includes', as contrasted from 'means', the word defined not only bears its ordinary popular and natural meaning, but in addition also bear the extended statutory meaning (See S.K. Gupta v. K.P. Jain, [AIR 1979 SC 734] following Dilworth vs. Commissioner of Stamps, [1899 AC 99 and Jobbins vs. Middlesex County Council [1949 (1) KB 142]).
24. The ordinary, popular and natural meaning of the word 'person' is 'a specific individual human being'. But in law the word 'person' has a slightly different connotation, and refers to any entity that is recognized by law as having the rights and duties of a human being. Salmond defines 'person' as 'any being whom the law regards as capable of rights and duties' or as 'a being, whether human or not, of which rights and duties are the attributes' (Jurisprudence : 12th Edition Page 299]. Thus the word 'person', in law, unless otherwise intended, refers not only to a natural person (male or female human being), but also any legal person (that is an entity that is recognized by law as having or capable of having rights and duties). The General Clauses Act thus defines a 'person' as including a corporation or an association of persons or a body of individuals whether incorporated or not. The said general legal definition is, however, either modified or restricted or expanded in different statutes with reference to the object of the enactment or the context in which it is used. For instance, the definition of the word 'person' in Income Tax Act, is very wide and includes an individual, a Hindu Undivided Family, a company, a firm, an association of persons or body of individuals whether incorporated or not, a local authority and every other artificial juridical person. At the other extreme is the Citizenship Act, section 2(f) of which reads Page 14 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT thus : "Person does not include any company or association or body of individuals whether incorporated or not." Similarly, the definition under Section 2(g) of Representation of the People Act 1950, is "person" does not include a body of persons.
25. Both definitions of the word 'person', in General Clauses Act and Ceiling Act, are inclusive definitions. The inclusive definition of 'person' in General Clauses Act applies to all Gujarat Act unless there is anything repugnant in the subject or the context. The inclusive definition of 'person' in section 2(21) of the Ceiling Act, does not indicate anything repugnant to the definition of 'person' in General Clauses Act, but merely adds 'joint family' to the existing definition. Therefore the definition of person in the Ceiling Act, would include the definition of person in section 3(35) of General Clauses Act. The resultant position can be stated thus : The definition of person in General Clauses Act, being an inclusive definition, would include the ordinary, popular and general meaning and those specifically included in the definition. The inclusive definition of 'person' in the Ceiling Act, in the absence of any exclusion, would have the same meaning assigned to the word in the General Clauses Act, and in addition, a joint family' as defined. Thus, the word 'person' in the Ceiling Act will, unless the context otherwise requires, refer to :
(i) a natural human being,
(ii) any legal entity which is capable of possessing rights and duties, including any company or association of persons or body of individuals (whether incorporated or not); and
(iii) a Hindu Undivided Family or any other group or unit of persons, the members of which by custom or usage, are joint in estate and residence.
11. In the case of Karnataka Bank Limited (supra), the Apex Court has held and observed in paras-41, 42 and 43 as under:-
41. Shri A.V. Rangam, learned counsel relying on the decision of this Court in English Electric Company of India Ltd. v. The Deputy Commercial Tax Officer submitted that the branches of a company have no independent and separate existence. The company is one entity but its branches are not separate entities. The submission was that the definition of person has the effect of destroying the legal identity of the company. The definition of person creates an artificial entity unknown to law. We find no substance in the submission so made by the learned counsel for the appellant. The observations of this Court Page 15 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT in English Electric Company of India Ltd. (supra) that the appellant company therein was one entity and it carries on business at different branches. Branches have no independent and separate entity. Branches are different agencies is to be understood in the proper context. The appellant company therein had branches at different places. The buyer at Bombay ascertained quotations for goods from the Bombay branch. The Bombay branch referred the enquiry to its Madras factory and on receiving reply quoted the prices and the Bombay buyer placed orders for the goods with the Bombay Branch but the goods were despatched from Madras though in the name of Bombay Branch at the risk of the Bombay buyer.
It is under those circumstances this Court observed that when a branch of a company forwards a buyers order to the principal factory of the company and instructs them to despatch the goods direct to the buyer and the goods are sent to the buyer under those instructions it would not be a sale between the factory and its branch. The observations so made have no bearing whatsoever on the issue with which we are concerned in the present case.
42. The appellant-company herein continues to be company within the meaning of Section 3 of the Companies Act, 1956 which defines the company, existing company, private company and public company for the purposes of the Companies Act. Its status as one entity continues to be the same. It is only for the purposes of the present Act viz., Andhra Pradesh Tax on Professions, Trades, Callings and Employments Act, 1987 even its branches are treated as a person enabling the authorities to levy and collect profession tax.
43. Before parting with the case we are required to state that a challenge to the impugned provisions was mounted on the basis of Article 14 of the Constitution of India in the High Court. It was contended that the Andhra Pradesh State Legislature in enacting the definition to the word person and also Explanation No. I to the First Schedule of the Act acted arbitrarily and irrationally and thereby violated Article 14 of the Constitution of India. That contention was rejected by the High Court. The said contention is not urged before us. Therefore, we express no opinion on the same.
12. In the case of Union of India (supra), the Apex Court has held and observed in para-9 that the statutory provision cannot be changed by administrative instructions.
13. In the case of State of Jharkhand (supra), the Apex Court has held and observed in para-15 as under:-
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"15. It hardly needs to be emphasized that the executive instructions are not having statutory character and, therefore, cannot be termed as "law"
within the meaning of aforesaid Article 300A. On the basis of such a circular, which is not having force of law, the appellant cannot withhold even a part of pension or gratuity. AS we noticed above, so far as statutory rules are concerned, there is no provision for withholding pension or gratuity in the given situation. Had there been any such provision in these rules, the position would have been different.
14. In the case Rajiv Maheshkumar Mehta (supra), one of us (Hon'ble Mr.Justice S. R. Brahmbhatt) has held and observed in para-17 that the provisions of administrative instructions being dehors the provisions of law cannot be permitted to be sustained. This view has been confirmed by the Division Bench of this Court in Letters Patent Appeal No.22 of 2013 and allied matters vide order dated 09.08.2016.
15. Having considered the submissions of both the sides and materials placed on record and the decisions cited at the Bar, admittedly, the question in the matter relates to the interpretation of the word "Person" used in Section 63AB of the Act. According to the petitioners, the "Person" includes juristic / legal person like Company, Cooperative Society etc. Whereas, it is contention of the respondent - State that it only denotes the natural person / individual human being. This question has arisen due to the administrative instruction dated 17.02.2017 issued by the Revenue Department to all Collectors. There is no dispute regarding insertion of Section Page 17 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT 63AB in the Act by amending Act 28 of 2015. As per amended Section 63AB, when the transfer of the land in favour of such a person who is not an agriculturist and, thereafter, if the last transaction of the land is on or before 30.06.2015 in favour of the person who is agriculturist, then for use of such land only for agriculture purpose, the last transaction could be declared valid by charging 10% of jantri value of the land. By impugned administrative instructions dated 17.02.2017, the revenue authority has instructed the Collector, Ahmedabad - Gandhinagar that the provisions of regularization under the Amended Act, 2015 will be available to the agriculturist only and it will not apply where before the last transaction, any transfer of the agricultural lands of the Cooperative Society / Company / Cooperative Farming Society / Partnership firm is made then the same cannot be regularized by imposing 10% of jantri price.
16. The word "Person" has been defined in various Revenue Act.
Section 2(11) of the Gujarat Tenancy and Agricultural Lands Act, 1948 defines the word "Person" which includes a joint family. Section 2(21) of the Gujarat Agricultural Land Ceilings Act, 1960 also provides the same meaning to the word "Person". Section 3(35) of the General Clauses Act, 1904 provides that the "Person" shall include any company or association or body of individuals, whether incorporated or Page 18 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT not.
17. It is pertinent to note that in the following provisions of the Gujarat Tenancy and Agricultural Lands Act, 1948, refers to the termed "Person" which are as under:-
(i) Section 32P provides for resumption and disposal of land by the Collector which are not purchased by the tenant. The direction for disposal of land to person in order of priority includes co-operative farming society, members of which are agricultural labourers, landless persons or small holders or combination of such persons and co-operative farming society of agriculturists, and other co-operative farming society.
(ii) Section 63AA provides for sale of land for bonafide industrial purpose, which, as provided therein, could be permitted in certain cases. The word "person" used therein is referred as purchaser and such purchaser could be a company as defined in Clause (20) of Section 2 of the Companies Act, 2013, as per the proviso to Page 19 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT clause (c) of sub-section (1).
(iii) Section 63AD provides for imposition of penalty on the person in whose favour transfer of land is in breach of provisions clause (a), (b), (c) of sub-section (1) of Section 63 and for restoration of land along with rights and interest therein to the position in which it was immediately before such transfer.
(iv) Section 70 provides about the duties of Mamlatdar, one of which, as provided therein, to decide whether a person is an agriculturist and whether the person is or was a tenant or a protected tenant or a permanent tenant. It also provides to decide under Section 84B or 84C whether transfer or acquisition of land is invalid and to dispose of land as provided in Section 84C.
(v) Section 83A and Section 84 provide as
under:-
83A. Restriction on acquiring land by transfer which is invalid.-(1) No person shall acquire land by transfer where such transfer or acquisition is invalid under any of the provisions of this Act.Page 20 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT
(2) Any person who acquires land in contravention of sub-section (1) shall in the event of the transfer or acquisition being decided or declared invalid, be liable to suffer, the consequences under section 84 or 84C as the case may be.
84. Summary eviction.- Any person unauthorisedly occupying or wrongfully in possession of any land-
(a) the transfer (or acquisition) of which either by the act or parties or by the operation of law is invalid under the provisions of this Act.
(b) the management of which has been assumed under the said provisions or
(c) to the use and occupation of which he is not entitled under the said provisions and the said provisions do not provide for the eviction of such person, may be summarily evicted by the Collector.
(vi) Section 84B provides for the powers of the
Mamlatdar to declare the transfer or
acquisition of the land by issuing notice to the transferor, transferee or person acquiring such land as invalid if transfer or acquisition of land is found to be in contravention of Sections 63 and 64 as it stood before the commencement of the Amending Act, 1955 or is inconsistent with any of the provisions of the Act as amended by Act of 1955.
18. The legislature has provided definition of "Person" which includes joint family i.e. thereby an intention of the legislature is to give inclusive definition of word "Person". Page 21 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT The word "Person" cannot be read in isolation as the Act itself provides that unless there is anything repugnant in the subject or the context. The inclusive definition of 'person' in section 2(21) of the Ceiling Act, does not indicate anything repugnant to the definition of 'person' in General Clauses Act, but merely adds 'joint family'. It is worthwhile to referred to Section 63AB which reads as under:-
63AB. Last transaction if made to an agriculturist to be valid even if earlier transaction or transactions may be invalid.(1) Notwithstanding anything contained in section 63, where the Mamlatdar suo moto or on the application of any person interested in the land, has reason to believe that, in the breach of the provisions of clause (a), (b) or
(c) of sub-section (1) of section 63, transfer of the land had taken place in favour of a person who was not an agriculturist, and that certain transaction or transactions have taken place thereafter and the person in whose favour the last transaction was made on or before the 30th June, 2015, is an agriculturist, he shall issue a notice to such person and shall give him an opportunity of being heard and also make an inquiry as he deems fit.
(2) If the Mamlatdar comes to the conclusion that as a result of the last transaction in respect of such land, the person to whom such land was transferred is indeed an agriculturist, he shall call upon such person to pay to the State Government for the use of such land only for the agricultural purpose, the amount of ten per cent. of the prevailing Jantri and after such payment he shall declare, by an order, such last transaction to be valid irrespective of the fact that any one or more of such transactions was or were invalid and upon such order, no proceedings under section 84C shall be initiated and if already initiated shall be discontinued forthwith.
19. On carefully reading of aforesaid Section 63AB, it is crystal clear that the word "Person" is used at two places in the first part of sub-section (1) of Section 63AB of the Act and this is also qualified and followed by similar phrase "who is not an agriculturist" but such order precedes the sentence / words Page 22 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT "where the Mamlatdar suo moto or on the application of any person interested in the land, has reason to believe that in the breach of the provisions of clause (a), (b) and (c) or sub- section (1) of Section 63, transfer of the land had taken place in favour of a company or any legal / juristic person which is not the agriculturist for the purpose of the Act or the individual human being who is not the agriculturist, since not personally cultivating the land, any transfer of the land in favour of the Company or the individual human being not personally cultivating the land is in breach of clause (a), (b) and (c) of Section 63 of the Act. As such, for the purpose of Section 63AB, the phrase "who is not agriculturist" includes the juristic person like company etc. and the individual, who is not personally cultivating the land, which will resultantly convey the meaning to the word "Person" used in first part of Section 63AB of the Act to include juristic person. It appears that the intention of the legislature appears to be that after invalid transaction in favour of the person who is not an agriculturist, certain transaction or transactions have taken place and the person in whose favour the last transaction was made on or before 30.06.2015 is an agriculturist, such last transaction could be held valid on Mamlatdar satisfying himself that the last transaction was in favour of a person who is the agriculturist.
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20. It also appears that the word "Person" appears in the first part of sub-section (1) of Section 63AB is in different context. At this juncture, it is worthwhile to refer to the statement of objects and reasons. Section 63AB in the Act reads as under:-
"It is also necessary to insert a provision to protect the interests of an agriculturist who is at present as such despite the fact that earlier transaction or transactions in respect of the concerned and was or were invalid.
21. It appears that the intention of the legislature is to validate the last transaction made on or before 30.06.2015, if in favour of the agriculturist, for the land in respect of which the earlier transaction was in breach of clause (a), (b) and (c) of Section 63 of the Act and such intention could well be gathered from the word "Person" used in second part of sub- section (1) of Section 63AB with the phrase 'is an agriculturist'. There is no qualification provided in the statement of objects and reasons that only those invalid transactions for the lands which were in favour of natural persons shall be validated, if the last transactions before 30.06.2015 are in favour of the agriculturists. As such, invalid transaction or the transactions referred to in statement of objects and reasons would include the transaction or the transactions in favour of juristic person.
22. It is worthwhile to refer to Section 63AD of the Act which provides for penalty to transferee for transfer of land in Page 24 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT breach of provisions of sub-section (1) of Section 63. Section 63AD reads as under:-
63AD. Penalty to transferee for transfer of land in breach of provisions of sub-section (1) of section
63.- (1) Notwithstanding anything contained in section 84C, where the Mamlatdar suo moto or on the application of any person, has reason to believe that, in the breach of the provisions of clause (a), (b) or (c) of sub-section (1) of section 63, transfer of the land has taken place in favour of a person who is not an agriculturist or in favour of any institution, the Mamlatdar shall issue a notice to such person or institution and, after affording an opportunity of being heard, decide whether the transfer of the land is valid or not.
(2) If the Mamlatdar comes to a decision that the transfer of such land is not valid then he shall pass an order thereby,-
(i) imposing the penalty of three times the amount of the prevailing Jantri of such land on such person or institution in whose favour such land is not validly transferred; and
(ii) directing the person or institution in whose favour such land is not validly transferred to restore the land along with the rights and interest therein to the position in which it was immediately before such transfer within a period of one month of such order.
23. On reading of the aforesaid provisions of Section 63AD of the Act, it is crystal clear that invalid transaction under Section 63 is intended to be dealt with by imposing penalty three times of the amount of prevailing jantri value of the land and directing the person or 'institution' in whose favour such land is not validly transferred to restore the land along with rights and interest therein to the position in which it was immediately before the invalid transfer took place. If the word, as suggested by the State, "Person" is read or Page 25 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT construed so as to include only natural person / individual human being, it may be difficult for the concerned authority to act against the Company or the legal entity in whose favour the transfer in breach of Section 63 has taken place.
24. Now, admittedly, by impugned administrative instructions, the authority attempted to supplement the statement of objects and reasons and thereby have tried to nullify the legislative intention for framing Section 63AB of the Act. In view of the aforesaid discussion, we are of the considered view that the word "Person" used in first part of Section 63AB of the Act includes juristic person like Company etc., and the restricted meaning sought to be given to word "Person" by impugned instructions is contrary to the intention of the legislature for enacting Section 63AB of the Act. The impugned administrative instructions are contrary to the statutory provisions of Section 63AB of the act and cannot be sustainable in the eyes of law.
25. On perusal of the impugned common judgment and order passed by the learned Single Judge, it is crystal clear that the learned Single Judge has taken into consideration each and every aspects of the matter and has not committed any error of facts and law in passing the impugned order while quashing and setting aside the impugned instructions and directing the Collector to decide the applications of the Page 26 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020 C/LPA/304/2019 CAV JUDGMENT petitioners for NA permission ignoring the impugned instructions. We are in complete agreement with the impugned judgment and order of the learned Single Judge and we do not see any merits in the present appeals and the same deserves to be dismissed.
26. In view of the above, the present Letters Patent Appeals are dismissed. No order as to costs.
27. In view of the disposal of the Letters Patent Appeals, the Civil Applications do not survive. Accordingly, the Civil Applications are disposed of.
Sd/-
(S.R.BRAHMBHATT, J) Sd/-
(A. P. THAKER, J) V.R. PANCHAL Page 27 of 27 Downloaded on : Fri Jan 10 22:45:17 IST 2020