SCA/25278/2007 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 25278 of 2007 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 ? ========================================================= KANIYALAL KANTILAL BAROT & 5 - Petitioner(s) Versus STATE OF GUJARAT & 17 - Respondent(s) ========================================================= Appearance : MR UI VYAS for Petitioner(s) : 1 - 6. MR PS CHAMPANERI for Respondent(s) : 1 - 6. RULE SERVED BY DS for Respondent(s) : 7, 7.2.1, 7.2.2,7.2.3 - 9, 9.2.1, 9.2.2,9.2.3 - 11,14 - 15. - for Respondent(s) : 12,17 - 18. - for Respondent(s) : 13, 16, ========================================================= CORAM : HONOURABLE MR.JUSTICE AKIL KURESHI Date : 27/08/2008 ORAL JUDGMENT 1. Heard learned advocates for the parties. Petitioners SCA/25278/2007 2/10 JUDGMENT have challenged an order dated 18th October, 2004 passed by Gujarat Revenue Tribunal in Revenue Application No. TEN.BA/29/97. 2. Petitioners are heirs of Kantilal Barot who held agricultural land bearing survey no.72 admeasuring 6 Acre and 16 Gunthas of Village: Bodakdev. Land in question was sold by the predecessors-in-title of the petitioners on 20th May, 1970 to one Shri Madhaji Devalji. Madhaji Devalji expired in the year 1974. His heirs, thereafter, sold the land to Haribhai Rami and Chandubhai Sami on 4.2.1985. 3. Kantilal Barot expired on 24.3.1984. During his life time, Shri Kantilal never raised any objections about sale transaction. Revenue Authority for years together did not initiate any proceedings to inquire about legality of the sale transaction. 4. It appears that nearly 20 years after the initial sale transaction in the year 1991, Mamlatdar & ALT initiated the proceedings to inquire about the status of the first purchaser to be able to purchase agriculture land. Mamlatdar & ALT passed final order on 29.6.1992 holding that Shri Madhaji was not an agriculturist when he purchased the land in question and that therefore, the initial sale transaction was hit by Section 63 of Bombay Tenancy and Agriculture Lands Act. Learned advocate, Shri Deven Parikh, appearing for the private respondents points out that the authorities, however, did find that Haribhai and Chandubhai Rami were agriculturist. We, however, are not directly SCA/25278/2007 3/10 JUDGMENT concerned with this question of fact. 5. Mamlatdar in the said order directed that the land should be restored to its original position within three months from the date of the order, failing which, the land shall vest in the Government free from all encumbrances. That order was carried in appeal. Deputy Collector reversed the order of Mamlatdar. Present petitioner, therefore, approached the Gujarat Revenue Tribunal challenging the order passed by the Deputy Collector. It is in this revision application that the Gujarat Revenue Tribunal passed the impugned order rejecting the revision application and upholding the order passed by the Deputy Collector. 6. Learned advocate, Shri U.I.Vyas, for the petitioners submitted that first purchaser of the land, namely, Madhaji was not an agriculturist. Sale transaction dated 20th May, 1970 was thus opposed to the provisions of Section 63 of the Act. Mamlatdar had, therefore, rightly directed the restoration of the original position, Deputy Collector as well as Tribunal erred in reversing the order of the Mamlatdar. 7. Learned advocate, Shri Deven Parikh and Shri Thakor appeared for the respondents. They, however, opposed the petition and contended that Mamlatdar had initiated the proceedings under Section 84-C of the Act after nearly 21 year of the sale. Such inordinate delay in initiation of the proceedings was not permissible. They further submitted that the SCA/25278/2007 4/10 JUDGMENT petitioners in any case could not have challenged the order passed by the Gujarat Revenue Tribunal. 8. Having thus heard learned advocates appearing for the parties, quite apart from the fact that the Mamlatdar initiated the proceedings 21 years after the date of the sale, I find that at-least the present petitioners cannot challenge the order passed by the Gujarat Revenue Tribunal. 9. Land in question was sold by predecessors-in-title of the petitioners by Madhaji in the year 1970. Seller of the land raised no dispute about the validity of such a sale during his life time. After his death in the year 1983, his heirs also for years together raised no grievance about the sale. It was only in the year 1991, Mamlatdar initiated suo-moto proceedings upon application by the petitioners to inquire into validity of sale transaction. The Mamlatdar, ultimately, passed order on 29.6.1992 in such proceedings. He, as noted, provided that the land should be restored in original position as it was within three months from the date of the order, failing which, same would vest in the Government. Present petitioners, therefore, would not benefit out of the present litigation and if sale transaction is declared invalid, as a consequence thereof, the land would vest in the Government to be disposed of according to the provisions made in the Tenancy Act. It is not in dispute that pursuant to the order passed by Mamlatdar, the parties did not restore the original possession of the land and even today, the purchasers are not wiling to do so. In- SCA/25278/2007 5/10 JUDGMENT fact, the land changed hands twice after the first sale. 10.This issue was considered by this court in an order dated 29.7.2008 passed in Special Civil Application No.05697 of 2007 and allied matters. Following observations were made: “8. Somewhat similar issue had come up before Learned Single Judge of this Court in case of Smt. Ratnaprabhabai D/O. Hirojirao Naranrao Mane v. M/s. Tulsidsas V. Patel and ors. reported in 1982 2 GLR 213. In the said decision, learned Judge made following observations : “The appellate order of the Assistant Collector shows that the petitioner who was the original vendor had no cause of complaint and could not have preferred any appeal before the Assistant Collector challenging the order of the Mamlatdar refusing to invoke his suo motu powers under sec. 84C for invalidating the transaction to which the petitioner was a party bing the vendor. It is an admitted position on the record of this case that the petitioner had not initiated any proceedings under sec. 84C. She had not challenged the transaction by which she herself had sold the lands in question years back in 1961 to respondent No.1 having taken Rs. 1,00,000/- from it. It was the Mamlatdar who initiated the suo motu proceedings first in 1974 and then in 1980 on the second occasion on the supposition that the said transaction was violative of sec. 84C. If for any reason, the authority had sought to re invoke suo motu powers even when there was no occasion for him to exercise such suo motu powers and had therefore subsequently dropped the suo motu proceedings realizing the futility thereof, it passes one's comprehension how the party in whose favour such decision is rendered by the Mamlatdar, can approach the appellate authority alleging to be an aggrieved party. By the order SCA/25278/2007 6/10 JUDGMENT of Mamlatdar, even on the second occasion, the notice issued suo motu calling upon the petitioner to show cause why her transaction with respondent No.1 should not be declared invalid, came to be discharged. Result was that the petitioner's sale transaction with respondent No.1 was not declared invalid and it remained untouched. Thereafter, the petitioner could never be said to be a party aggrieved which wold be entitled to carry the matter in appeal. It is pertinent to note that the State of Gujarat has not challenged the order of the Mamlatdar by which the Mamlatdar had refused to exercise suo motu powers under section 84C. The State would have been the proper party which could have felt aggrieved if at all by the order of the Mamlatdar. Under the Scheme of sec. 84C(1) and (2), if a transaction pertaining to any agricultural land is found to be invalid and if the parties to the proceedings are not willing to restore status quo ante, the concerned lands would vest in the State Government. Mr. S.R. Shah learned Advocate appearing for respondents Nos. 1 and 3 made it clear that these respondents are not willing to get status quo ante restored so far as the lands in questions are concerned. In such an eventuality, the only order which could have followed would have been the order of the Mamlatdar vesting the lands in the State. Such an order would never have benefited the petitioner in the least. The State which could have got these lands vested in it by any effective exercise of suo motu powers by the Mamlatdar under sec. 84C did not think it proper to challenge his order refusing to take such action. In these circumstances, it is difficult to appreciate how the petitioner-original vendor of th lands felt aggrieved by the decision of the Mamlatdar who had refused to set aside petitioner's sale transaction of 1962 in favour of respondent No.1.” 9. This issue had come up before this Court on few occasions thereafter also. Taking note of such decisions in Special Civil Application SCA/25278/2007 7/10 JUDGMENT No.7626/2008 which was decided by order dated 23.7.2008, following observations were made : “3.I am afraid the above contention cannot be accepted. Firstly, no statutory provision is pointed out which would support the contention. So far as the effect of sale of agricultural land to a non-agriculturist is concerned, it remains the same; whether the status of the purchaser as an agriculturist was doubtful at the outset or was so rendered by virtue of subsequent event. Secondly, the petitioner had himself voluntarily and willingly sold his agricultural land to respondent No.3. Whatever the position of the status of respondent No.3 being an agriculturist or not, so far as the petitioner is concerned, he was a willing party to the sale deed. At his instance, therefore, to examine the legality of the status of respondent No.3, would be inequitable. Having sold the land in question after receiving the full purchase price, it would also not be equitable on part of the petitioner to contend that land should revert back to the petitioner and not vest in Government. Situation would of-course have been different if both purchaser as well as seller had agreed to restore the original position. Then the statutory scheme of the Bombay Tenancy and Agricultural Lands Act(“the tenancy Act” for short), would take a different course. In the present case however, purchaser is not willing for such restoration. In that view of the matter provisions contained in the tenancy Act for vesting the land in Government would operate ,if ultimately it is found that sale of agricultural land was in favour of non-agriculturist. In either case, the petitioner has lost his right, title and interest over the suit land. 4.In case of Abhesinh Mohansinh v. State of Gujarat and ors. reported in 2006(3) GLH 352, Learned Single Judge was considering the petition of original land owner who had sold his agricultural land to respondents Nos. 2 to 4 therein. Mamlatdar and ALT had declared the sale invalid and upon failure to restore the original SCA/25278/2007 8/10 JUDGMENT position had ordered forfeiture of the land by the Government. Ultimately, however, Gujarat Revenue Tribunal held in favour of the purchasers and set aside the orders passed by the authorities below. In this respect learned Judge observed that when the authority under the Act has held that transaction as valid, it hardly lies in the mouth of the seller who was party to the transaction to contend that transaction be declared invalid, more particularly, when he has enjoyed the benefit of the transaction by accepting consideration long back. It was observed that remedy of getting back land which is not permissible directly cannot be allowed to be done indirectly to invoking writ jurisdiction of the High Court. In case of Patel Ratilal Maganbhai & Ors. v. State of Gujarat reported in 2003(1) GLR 562, Division Bench of the High Court in reference to the proceedings under Bombay Prevention of Fragmentation and Consolidation of Holdings Act observed that writ jurisdiction cannot be exercised in favour of transferor who had violated the law in entering into the transaction. In case of Smt. Ratnaprabhabai D/O. Hirojirao Naranrao Mane v. M/s. Tulsidsas V. Patel and ors. reported in 1982 2 GLR 213, Learned Single Judge of the Court was considering the case wherein agricultural land was sold in the year 1961. Land owner never challenged the transaction of sale. Mamltadar and ALT initiated suo motu proceedings in the year 1974 under Section 84C of the Act but later on dropped the suo motu proceedings. Learned Judge observed that it passes one's comprehension how the party in whose favour such decision is rendered by the Mamlatdar, can approach the appellate authority alleging to be an aggrieved party. The State of Gujarat has not challenged the order of the Mamlatdar by which the Mamlatdar had refused to exercise suo motu powers. The State would be the proper party which could have felt aggrieved, if at all, by SCA/25278/2007 9/10 JUDGMENT the order of the Mamlatdar. Under the Scheme of sec. 84C(1) and (2), if a transaction pertaining to any agricultural land is found to be invalid and if the parties to the proceedings are not willing to restore status quo ante, the concerned lands would vest in the State Government. The State which could have got these lands vested in it by any effective exercise of suo motu powers by the Mamlatdar under section 84C did not think it proper to challenge his order refusing to take such action. In these circumstances, it is difficult to appreciate how the petitioner original vendor of the lands felt aggrieved by the decision of the Mamlatdar. It appears that the petitioner having pocketed Rs. One lac years back in 1962 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 present litigation lingers on so that at some future time respondents may come around and may give some added financial advantage to the petitioner by way of bargain. It was observed that Court cannot be party to such a design. Learned Single Judge in an unreported decision dated 22.7.1997 passed in Special Civil Application No.2221/1997 in case of Ukabhai Bhurabhai Heir and L.R of deceased Bhurabhai J Koli v. State of Gujarat, also had taken a similar view, following the decision in case of Smt. Ratnaprabhabai (supra). This decision was carried in appeal and Division Bench of the High Court by order dated 10.8.1999 passed in Letters Patent Appeal No. 1481/1997 also confirmed the view of the Learned Single Judge. 5.Under the circumstances, I see no reason to interfere. The petitions are therefore, dismissed. This is without prejudice to the petitioner to challenge the impugned order passed by Gujarat Revenue Tribunal and I have expressed no opinion on merits or demerits of the impugned order.” 10. Section 65 of the Contract Act cannot be SCA/25278/2007 10/10 JUDGMENT applied in the present case, since the issue would be governed by the provisions made in the tenancy Act which are specifically for agricultural lands in the State of Gujarat. In particular, Section 63 renders any sale in favour of a non-agriculturist as void. Section 84C makes detailed provision for dealing with a situation where agricultural land is sold in favour of non-agriculturist and empowers the Mamlatdar either suo motu or at an application made on that behalf by interested persons after issuance of notice and holding of an inquiry to declare such transfer invalid unless within time permitted by Mamlatdar, parties restore the original position of land. In the present case admittedly Deputy Collector while declaring the sale invalid did make a provision for parties to restore the original position. It is nobody's case that though parties were prepared to restore the original position, the transfer was declared invalid. 11. Under the circumstances, the only person interested in challenging the order passed by the Tribunal would be Government since even after declaring the sale invalid the land would not revert back to the original seller but would vest in the Government”. 11.In the result, I find no merits in the petition, therefore, the petition is dismissed. Rule is discharged. Interim relief is vacated. (AKIL KURESHI, J.) ashish//