SCA/862019/1999 1/9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8620 of 1999 For Approval and Signature: HONOURABLE MR.JUSTICE AKIL KURESHI ========================================================= 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, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= JAYRAJKUVARBA WD/O NATVARSINHJI - Petitioner(s) Versus STATE OF GUJARAT & 4 - Respondent(s) ========================================================= Appearance : MR JITENDRA M PATEL for Petitioner(s) : 1, MS MANISHA LAVKUMAR, AGP for Respondent(s) : 1 - 3, 5, DELETED for Respondent(s) : 4, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 10/12/2008 ORAL JUDGMENT Petitioner has challenged order dated 9th July 1999 passed by the Gujarat Revenue Tribunal in Revision Application TEN.BA.429/03. By the said SCA/862019/1999 2/9 JUDGMENT order, the Tribunal upheld the order dated 25.9.81 passed by the Deputy Collector, Sabarkantha. 2. Briefly stated, facts leading to the petition are as follows:- Petitioner held agricultural lands which in the year 1971 admeasured 55 acres in village Mohanpur. The Gujarat Agricultural Lands Ceiling Act, 1960 ('the Act' for short) was amended with effect from 1.4.76 reducing the ceiling limit of agricultural holdings in the State. Such amendments, however, were brought into effect from 1.4.76, but certain transactions just preceding the operation of the amendments were subject to scrutiny by the authorities. As per section 8 of the Act, any transfer of agricultural land after 24.1.71 but before the specified i.e. 1.4.76 by way of sale, gift, mortgage with possession, exchange, lease, surrender or otherwise or partition, unless proved to the contrary, is deemed to have been made in anticipation in order to defeat the object of the Act. Any person said to have been affected by the provisions of sub-section (1) of section 8 of the Act is permitted within the prescribed period to make application in prescribed form to the Collector for declaration that the transfer or partition was not made in anticipation in order to defeat the object of the Act. On receipt of such an application, the Collector has to hold an inquiry and after giving opportunity of hearing and considering the evidence SCA/862019/1999 3/9 JUDGMENT produced to decide whether the transfer or the partition was or was not made in anticipation in order to defeat the object of the Act. As per sub- section (4) of section 8 of the Act, where such application is rejected, transfer or partition is to be ignored while computing the surplus land held by the land-holder. It is the case of the petitioner that out of her holding, 20 acres of land were sold to one Jaswantsinh Gulabsinh by registered sale deed dated 28.4.72. However, prior to the sale, the parties entered into an agreement to sell on 5.10.70 and possession of the land was also handed over to said Jaswantsinh. The petitioner, therefore, filed an application under section 8(2) of the Act before the Deputy Collector. After a round of remand, the Deputy Collector by his order dated 25.9.81 rejected the application holding that the transfer was made in order to defeat the object of the Act. The petitioner challenged the said order of the Deputy Collector before the Gujarat Revenue Tribunal. As noted, the GRT by the impugned order dated 9.7.99 rejected the revision application. 3. Appearing for the petitioner learned advocate Shri J.M.Patel submitted that the bill for amending the Act was introduced in the Legislature in December SCA/862019/1999 4/9 JUDGMENT 1972. Transactions between the petitioner and Jaswantsinh were entered before the said date. There cannot be a presumption that the parties anticipated moving of the bill before the Assembly. In this regard, he relied on a decision dated 14.6.91 of learned single Judge of this Court in Special Civil Application No.3445 of 1980 as well as another decision dated 7th August 1984 of learned single Judge in Special Civil Application No.2436 of 1978. It was contended that by agreement to sell dated 5.10.70, possession of the land was handed over to Jaswantsinh and that therefore the transfer was complete prior to 24.1.71 and section 8 of the Act, therefore had no application. In this regard, reliance was placed on a decision of learned single Judge of this Court reported in the case of Lajjashankar Joshi v. State, 26(2) GLR 658 as well as an unreported decision dated 27/28.6.2007 passed by the learned single in Special Civil Application No.8579 of 1999. He further contended that the Deputy Collector was guided by the internal communication from the Government which can be seen from the rojkam and such procedure would amount to interference by the Government in exercise of quasi judicial functions of the authority. 4. On the other hand, learned AGP Ms.Manisha Shah appearing for the State submitted that the factum of SCA/862019/1999 5/9 JUDGMENT agreement to sell dated 5.10.70 has not been established by the petitioner and rightly not believed by the authorities below. She pointed out number of discrepancies in the averments of the petitioner to which I would advert to at an appropriate stage in the order. She also contended that the Deputy Collector as well as the Gujarat Revenue Tribunal have recorded finding of facts which this Court under Article 226/227 of the Constitution would not interfere. 5. Having heard the learned advocates appearing for the parties, from the record I find that the petitioner while filing application under section 8(2) of the Act in the year 1976, at the first instance declared that 20 acres of land was transferred by way of gift. In fact, this assertion of the petitioner remained consistent right upto the Gujarat Revenue Tribunal in the first round of litigation. This is how the position was viewed by all the authorities. In an order dated 13.2.78 produced at Annexure E to the petition, the Tribunal while remanding the proceedings before the Deputy Collector noted that as per the records, out of the land held by the petitioner on the specified date, 20 acres of land has been transferred by registered gift dated 18.1.72. Thus from the inception, it was the case of the petitioner that 20 acres of land was transferred by her by way of gift and not sale. SCA/862019/1999 6/9 JUDGMENT Subsequently, however, the petitioner put forth a case that the land was transferred by way of registered sale deed dated 28.4.72. Even there, it was contended that the sale deed was preceded by an agreement to sell dated 5.10.71. At more than one place in the registered sale deed produced by the petitioner before the Gujarat Revenue Tribunal, it was recorded that there was an agreement to sell between the parties coupled with transfer of possession on 5.10.71. Even in his deposition before the Deputy Collector, the power of attorney holder of the petitioner stated that possession of the land was handed over to Jaswantsinh by virtue of agreement to sell dated 5.10.71. It would thus clearly emerge that the initial case of transferring the land by way of registered gift deed was thereafter changed to state that there was transfer by way of sale which took place on 28.4.72 which was preceded by an agreement to sell dated 5.10.71. Sale deed dated 28.4.72 was produced for the first time before the Deputy Collector and not with the application under section 8 of the Act. Agreement to sell which was all throughout referred to one entered on 5.1.71 was not produced before any authority. Even before this Court, when initially the petition was filed, the petitioner asserted that the agreement to sell was dated 5.10.71. It was only by way of amendment moved in the year 2007 that the SCA/862019/1999 7/9 JUDGMENT petitioner sought to change the date of agreement to sell from 5.10.71 to 5.10.70 and produced a copy purported to have been made between the petitioner and Jaswantsinh on 5.10.70. The agreement to sell records that 20 acres of land agreed to be sold to Jaswantsinh for total sale price of Rs.10,000/- out of which Rs.1,000/- was paid on 5.10.70 in lieu thereof, the possession was also handed over. 6. From the above materials, it can be clearly seen that the authorities below correctly did not accept the version of the petitioner that the land in question was transferred by the petitioner to Jaswantsinh prior to 24.1.71. Both the authorities relying on the materials on record came to a clear conclusion that there was clear attempt on the part of the petitioner to defeat the object of the Act. The case of the petitioner that the agreement to sell was entered on 5.10.70 was not believed. In fact, such a case was never specifically put forth by the petitioner since till the year 2007 when the amendment was granted by this Court, case of the petitioner had always been that the agreement to sell took place on 5.10.71. The revenue records also suggested, as recorded by the Deputy Collector, the possession of the petitioner and not of Jaswantsinh till the year 1973-74. In view of such overwhelming evidence against the petitioner, I have no reason to disturb the factual findings recorded by the two authorities below. SCA/862019/1999 8/9 JUDGMENT 7. One important aspect of the matter was that even Jaswantsinh who was a witness examined in the inquiry stated before the Deputy Collector in his evidence that he had purchased the land by registered sale deed dated 28.4.72 and that he enjoys possession since then. Significantly, Jaswantsinh never mentioned anything about the previous agreement to sell between the parties nor did he state that he was put in possession of the land prior to the sale deed dated 28.4.74. Even if Jaswantsinh may not be treated to be a witness of the petitioner, the fact remains that Jaswantsinh was not cross-examined by the petitioner on these important aspects. 8. In the ultimate analysis, I find that following salient features would convince me not to interfere with the orders passed by the authorities below. (1)The case that agreement to sell took place on 5.10.70 was never advanced on behalf of the petitioner till the present petition was amended in the year 2007. (2)Before the authorities as well as in the sale deed, it was always the case of the petitioner that agreement to sell took place on 5.10.71. (3)At the outset while filing the application under section 8 of the Act, the petitioner had contended that the land was transferred by way of gift and not sale. (4)The petitioner's assertion that the possession was handed over to Jaswantsinh in October 1970 SCA/862019/1999 9/9 JUDGMENT is neither borne out from the record nor supported by Jaswantsinh. As noted, revenue records show possession of the petitioner till 1973-75 and Jaswantsinh in his deposition stated that he took possession of the land from the date of sale deed i.e. 28.4.72. He did not even refer to any previous agreement to sell. 10. In view of the above conclusions, I am not inclined to accept the contention of the petitioner that the order was passed by the Deputy Collector under the instructions of the Government. Independently of any such instruction, there was sufficient evidence to disallow the application. Since it is found that the land was transferred for the first time only on 28.4.72 and the so called agreement to sell dated 5.10.70 with possession was only an after-thought, the decisions relied on by the learned counsel for the petitioner, noted above, would not apply in the facts of the present case. 11. In the result, the petition is dismissed. Rule is discharged. Interim relief is vacated. (Akil Kureshi, J.) (vjn)