SCA/24551/2007 1/20 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 24551 of 2007 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 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 ? ========================================================= ANANDRAO KHANDERAO & ORS. - Petitioner(s) Versus STATE OF GUJARAT & ORS. - Respondent(s) ========================================================= Appearance : MR AJ PATEL for Petitioners MR JASWANT K SHAH, AGP for Respondent(s) : 1, MR NACHIKETA S JOSHI for Respondent(s) : 2, MR SUDHAKAR B JOSHI for Respondent(s) : 2, DELETED for Respondent(s) : 3, MR AS PARASRAMPURIA for Respondent(s) : 4 ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 24/06/2008 ORAL JUDGMENT 1. Rule. Mr.Jaswant K.Shah, learned Assistant Government Pleader, waives service of notice of SCA/24551/2007 2/20 JUDGMENT Rule on behalf of the respondent No.1. Mr.Nachiketa Joshi, learned counsel, waives service of notice of Rule on behalf of the respondent No.2 and Mr.A.S.Parasrampuria, learned counsel, waives service of notice of Rule on behalf of the respondent No.4. In the facts and circumstances of the case and with the consent of the learned counsel for the parties, the matter is heard and finally disposed of, today. 2. This petition, under Articles 226 and 227 of the Constitution of India, has been filed with a prayer to quash and set aside the order dated 30.9.1993 passed by the Additional Mamlatdar and ALT, Vaghodia, in Tenancy Case No.510 of 1989 (Annexure-G to the petition), order dated 1.8.1995 passed by the Deputy Collector, Dabhoi, in Tenancy Appeal No.29 of 1994 (Annexure-I to the petition) and order dated 20.2.2007 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.B.A.583 of 1995 (Annexure-M to the petition). 3. The brief facts of the case, emerging from a SCA/24551/2007 3/20 JUDGMENT perusal of the averments made in the petition as well as the documents annexed thereto are, that the land bearing Revenue Survey Nos.68/1 and 68/2 of Village: Rasulabad, Taluka: Vaghodia, District: Baroda, was owned, possessed and cultivated by Shri Mahendrabhai Naranbhai Rao and Shri Mohanbhai Himatbhai Rao, who are the respondents Nos.2 and 3 to the petition. According to the petitioners, deceased Shri Khanderao Shivajirao Gaekwad, father of the respondent No.4 and the petitioner No.1 herein purchased the land of both the above mentioned survey numbers from the respondents Nos.2 and 3 respectively by two separate Sale Deeds dated 6.4.1972. On the basis of the said Sale Deeds, mutation entries Nos.707 and 715 were effected in Village Form No.6 on 18.7.1972 and 1.10.1972 respectively. These entries came to be certified by the Competent Authority in due course. It is the case of the petitioners that the land in question was cultivated by the deceased father of the respondent No.4 and the respondent No.4 jointly till 1989 and till that point of time, SCA/24551/2007 4/20 JUDGMENT no proceedings under the provisions of Section 84C of the Bombay Tenancy and Agricultural Lands Act, 1948 (“the Tenancy Act” for short) were initiated during the period between 1972 and 1989. Subsequently, the petitioners Nos.1 and 2 purchased the land bearing both the said survey numbers from the respondent No.4 and his father, by two separate, registered Sale Deeds dated 6.10.1989 and, accordingly, mutation entries Nos.1490 and 1489 were effected in Village Form No.6 on 12.10.1989. These mutation entries were certified on 20.12.1989. It is the case of the petitioners that in the meanwhile, proceedings under Section 84C of the Tenancy Act were initiated by the Mamlatdar and ALT, Vaghodia, which were registered as Tenancy Case No.510 of 1989. In these proceedings, the deceased father of the respondent No.4 and the respondent No.4 were impleaded as party-opponents. According to the petitioners, the address of the deceased father of the respondent No.4 and of the respondent No.4 was wrongly shown as “Raj Mahel Road, Baroda” in the notices issued in the said SCA/24551/2007 5/20 JUDGMENT proceedings though, as a matter of fact, the said respondents were residing at Village Bhayali of District: Vadodara at the relevant point of time. It is the case of the petitioners that notices were sent to deceased Khanderao Shivajirao and the respondent No.4/1 – Anandrao Khanderao, who are the predecessors-in-title of the petitioners, at the wrong address and, therefore, the said respondents could not respond to those notices and were not heard during the proceedings initiated under Section 84C of the Tenancy Act and, subsequently, the Mamlatdar and ALT, Vaghodia, proceeded to dispose of the said proceedings by order dated 30.9.1993, directing that the land in question be forfeited to the Government as it was purchased in violation of Section 63 of the Tenancy Act. It was further directed that the Mamlatdar, Vaghodia, should take over the possession of the said land. It is averred in the petition that the petitioners had purchased the land in question from deceased Shri Khanderao Shivajirao and since they were SCA/24551/2007 6/20 JUDGMENT aggrieved by the order dated 30.9.1993 passed by the Mamlatdar and ALT, they preferred Tenancy Appeal No.29 of 1994 before the Deputy Collector, Dabhoi. It is stated that during the pendency of the appeal, Section 2(6) of the Tenancy Act came to be amended by Gujarat Act No.4 of 1995, and without taking into consideration the effect of the said amendment, the Deputy Collector passed order dated 1.8.1995, dismissing the appeal of the petitioners, and confirming the order passed by the Mamlatdar and ALT. The petitioners, therefore, filed a revision application which was registered as Revision Application No.TEN.B.A.583 of 1995, before the Gujarat Revenue Tribunal, which has been dismissed vide judgment dated 20.2.2007. Aggrieved by the dismissal of the revision application, the petitioners have approached this Court by filing the present petition. 4. Mr.A.J.Patel, learned counsel for the petitioners has made the following submissions: (i) That although it has been stated in the SCA/24551/2007 7/20 JUDGMENT impugned order dated 20.2.2007 that the Mamlatdar and ALT, Vaghodia, had issued notices to the respondent No.4/1, who was the predecessor-in-title of the petitioners, on 21 occasions, these notices were never served upon the said respondent since they were issued at a wrong address and, therefore, the said respondent had no occasion to contest the proceedings under Section 84 of the Act. It is submitted by the learned counsel for the petitioners that the record reveals that during the course of the proceedings, the Mamlatdar and ALT had recorded the statement of Talati-cum- Mantri of village Rasulabad on 30.9.1992, wherein the said Talati-cum-Mantri has clearly sated that the names of the owners of the land in question appear in the voters' list of Rasulabad at Sr.No.80/163/884. However, thereafter, on 8.9.1993, the statement of Talati-cum-Mantri of Village Rasulabad again came to be recorded by the Mamlatdar and ALT in the said proceedings and in that statement, the Talati had stated that the land bearing Survey SCA/24551/2007 8/20 JUDGMENT No.68/1 and 68/2 was sold to Patel Visubhai Bhaichandbhai and Patel Atulbhai Visubhai by the respondent No.4/1 and that the said respondent was residing at village Rasulabad and the address is not known. A copy of this statement has been annexed as Annexure-F to the petition. According to the learned counsel for the petitioners, the Mamlatdar and ALT, Vaghodia, proceeded to dispose of the said proceedings without serving notice to either the respondents No.2 and 3 herein who were the erstwhile owners of the land or to the respondent No.4/1, who was the purchaser of the land from the respondents Nos.2 and 3, and without hearing the concerned respondents, passed order dated 30.9.1993, directing that the land in question be forfeited to the Government. It is emphasized by Mr.A.J.Patel, learned counsel for the petitioners that the said order is violative of the provisions of Section 84C of the Tenancy Act inasmuch as before forfeiting the land, the Mamlatdar and ALT is required to afford an opportunity of hearing to the parties to the SCA/24551/2007 9/20 JUDGMENT proceedings to restore the land to its original position within 90 days and only on the failure to do so, can the land be ordered to be forfeited. It is submitted that since the notices were never served upon the predecessors- in-title of the petitioners, it cannot be said that they were given an opportunity of hearing and, therefore, the provisions of Section 84C of the Tenancy Act not having been satisfied, the impugned orders deserve to be quashed and set aside and the case remanded to the Mamlatdar and ALT, for fresh hearing. (ii) That not only has the Mamlatdar and ALT violated the provisions of Section 84C of the Tenancy Act but further, the provisions of Section 84B of the Tenancy Act have also been ignored. Drawing the attention of the Court to Section 84B, it is pointed out by the learned counsel for the petitioners, that the Section stipulates that, “the Mamlatdar shall issue a notice in the prescribed form to the transferor, the transferee or the person acquiring such land, as the case may be, to show cause as to SCA/24551/2007 10/20 JUDGMENT why the transfer or acquisition should not be declared to be invalid and shall hold an inquiry and decide whether the transfer or acquisition is or is not invalid”. It is submitted that the petitioners had purchased the land in question from the respondent No.4/1 by two different, registered Sale Deeds dated 6.10.1989 i.e. before the order dated 30.9.1993 was passed by the Mamlatdar and ALT, Vaghodia. In that view of the matter, the petitioners had acquired the land in question in terms of Section 84B of the Tenancy Act and it was incumbent upon the Mamlatdar and ALT to have issued them a show cause notice as to why the transfer or acquisition of the land in question be not declared invalid, or to hold an inquiry to decide whether such transfer or acquisition is, or is not invalid. It is forcefully contended by Mr.A.J.Patel that the provisions of Section 84B of the Tenancy Act have been totally ignored by the Mamlatdar and ALT, which has resulted in gross prejudice to the petitioners as the petitioners had acquired interest in the land as SCA/24551/2007 11/20 JUDGMENT far back as in 1989 and on this ground also, the impugned orders deserve to be quashed and set aside and the matter remanded. (iii) That during the pendency of the appeal filed by the petitioners before the Deputy Collector, Section 2(6) of the Tenancy Act came to be amended by Gujarat Act No.4 of 1995, and the portion beginning with the words “being land, the entire area” and ending with the words “one compact block” came to be deleted from Section 2(6). It is stressed by the learned counsel for the petitioners that without taking into account the effect of the amendment on the case of the petitioners, the Deputy Collector proceeded to dismiss the appeal filed by them by an order dated 1.8.1995. It is further submitted that during the pendency of the revision application before the Gujarat Revenue Tribunal, the said Section was again amended by the Amending Act being Gujarat Act No.3 of 2001 which came to be passed on 30.3.2001. By virtue of this amendment, Section 2(6) of the Tenancy Act came to be amended with retrospective SCA/24551/2007 12/20 JUDGMENT effect. It is submitted that by the said amendment, the restrictions to hold agricultural land at a distance of more than 5 miles i.e. 8 kilometers, have been removed with retrospective effect and it has been provided that the cases pending before any Court, Tribunal or authority for contravention of Section 63 so far as it relates to breach of clause (6) of Section 2 of the principal Act, shall stand abated. It is submitted that in view of the amendment, the predecessor-in-title of the petitioners ought to have been held as being an 'agriculturist' since the restriction of distance was removed but this amendment has not been taken into consideration by the Gujarat Revenue Tribunal. It is contended that, had the said amendment been taken into consideration, the proceedings initiated by the Mamlatdar and ALT would not have survived and the non-consideration of the effect of the amendment has caused serious prejudice to the petitioners and on this ground as well, the impugned orders deserve to be quashed and set aside and the case remanded. SCA/24551/2007 13/20 JUDGMENT 5. An affidavit-in-reply has been filed by the respondent No.4/1 (predecessor-in-title of the petitioners) in which it has been stipulated that though the proceedings under Section 84C were initiated in 1989, no notice of these proceedings was served upon him. It is further stipulated that the said respondent was holding and cultivating the Survey Nos.13, 14 and 268 in Village Bhayali and therefore, he was an 'agriculturist' at the time when he sold the land to the petitioners on 6.10.1989. 6. By filing an affidavit-in-reply, the respondent No.2 has also supported the case of the petitioners and has stated that the matter may be remanded for fresh inquiry in accordance with law. 7. Mr.Jaswant K.Shah, learned Assistant Government Pleader, has supported the order of the Gujarat Revenue Tribunal, and has submitted that notice was issued on 21 occasions to the respondent No.4/1 at the address on record at the relevant point of time and the petitioners, at no point of time, had intimated the respondent- SCA/24551/2007 14/20 JUDGMENT authorities about the change of address. It is further submitted that the respondent No.4/1 has not challenged the order dated 30.9.1993 passed by the Mamlatdar and ALT. It is, therefore, prayed that the petition be dismissed. 8. I have heard Mr.A.J.Patel, learned counsel for the petitioners, Mr.Jaswant K.Shah, learned counsel for the respondent No.1, Mr.Nachiketa S.Joshi, learned advocate for the respondent No.2 and Mr.A.S.Parasrampuria, learned counsel for the respondent No.4/1 and have perused the averments made in the petition, the impugned orders and the documents on the record of the petition. 9. Although the record states that the notices were sent on 21 occasions to deceased Shri Khanderao Shivajirao and Shri Anandrao Khanderao, the respondent No.4/1, it is also evident from the record that during the pendency of the proceedings before the Mamlatdar and ALT, Vaghodia, the Talati-cum-Mantri of Village Rasulabad had made a statement on 8.9.1993 to the effect that the land bearing Survey Nos.68/1 SCA/24551/2007 15/20 JUDGMENT and 68/2 was sold to Patel Atulbhai Visubhai and Patel Visubhai Bhaichandbhai respectively by Khanderao Shivajirao and Anandrao Khanderao and that the said Khanderao Shivajirao and Anandrao Khanderao were not residing at Village Rasulabad and that their address is not known. This statement was made before the Mamlatdar and ALT, who finally disposed of the case on 30.9.1993. When it had come to the knowledge of the Mamlatdar and ALT that the said respondents were not residing at the address on which the notices were being sent to them, it was incumbent upon him to procure their fresh address and send notices to them at the correct address, so that the requirement of Section 84B of the Act could be satisfied. By an order dated 30.9.1993, the land in question has been forfeited. This means that the petitioners have been divested of the land in question, without notice being served upon them or any inquiry being made as per the provisions of Section 84B of the Act. It is evident from the record that no action has been taken to send notices to the concerned parties SCA/24551/2007 16/20 JUDGMENT at the correct addresses despite the fact that it has been stated by the Talati-cum-Mantri that the petitioners no longer reside at the address at which the notices were sent and therefore, in this view of the matter, the submission of the learned counsel for the petitioner that serious prejudice has been caused to the petitioners by non-service of the notices, deserves to be accepted. 10.The submission of the learned counsel for the petitioners that as per the provision of Section 84B of the Tenancy Act, the Mamlatdar and ALT should have issued a notice to the petitioners to show cause as to why the transfer or acquisition of the land shall not be declared invalid is also worthy of acceptance since there is no mention in any of the impugned orders, nor is there any other document on record to show that the provision of Section 84B were complied with, before the order dated 30.9.1993 was passed. Admittedly, the petitioners had purchased the said two survey numbers of land by registered Sale Deeds dated 6.10.1989 and had SCA/24551/2007 17/20 JUDGMENT acquired interest in the land before passing of order dated 30.9.1993. As it is evident from the record that the provisions of Section 84B of the Tenancy Act have not been followed in respect of the land in question, the submission of the learned counsel for the petitioners that the matter be remanded, is well founded. 11.The last submission of Mr.A.J.Patel, learned counsel for the petitioners to the effect that the amendment of Section 2(6) of the Tenancy Act by Amending Act No.4/1995 has not been considered by the Deputy Collector during the pendency of the appeal, and passing of order dated 1.8.1995 and, similarly,the effect of the Amending Act No.3/2001 has also not been considered by the Gujarat Revenue Tribunal before passing the impugned judgment dated 20.2.2007, is also borne out from the impugned orders. It is evident from a perusal of the impugned orders that the authorities below have not taken into consideration the in the Tenancy Act in the years 1995 and 2001, respectively and the effect of these amendments has not been SCA/24551/2007 18/20 JUDGMENT taken into consideration, qua the case of the petitioners. This submission of the learned counsel for the petitioners is, therefore, worthy of acceptance. 12.For the reasons stated hereinabove and in the ultimate analysis, I am of the opinion that the order dated 30.9.1993 passed by the Additional Mamlatdar and ALT, Vaghodia, in Tenancy Case No.510 of 1989, order dated 1.8.1995 passed by the Deputy Collector, Dabhoi, in Tenancy Appeal No.29 of 1994 and order dated 20.2.2007 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.B.A.583 of 1995, deserve to be set aside and the matter deserves to be remanded to the Mamlatdar and ALT, Vaghodia, to decide afresh, after giving an opportunity of hearing to the parties concerned and after considering the relevant record, in the light of the observations made hereinabove. 13.Accordingly, the petition is partly allowed. The impugned orders dated 30.9.1993 passed by the Additional Mamlatdar and ALT, Vaghodia, in Tenancy Case No.510 of 1989 (Annexure-G to the SCA/24551/2007 19/20 JUDGMENT petition), order dated 1.8.1995 passed by the Deputy Collector, Dabhoi, in Tenancy Appeal No.29 of 1994 (Annexure-I to the petition) and order dated 20.2.2007 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN.B.A.583 of 1995 (Annexure-M to the petition), are quashed and set aside and the matter is remanded to the Mamlatdar and ALT, Vaghodia, to decide afresh in the light of the reasons stated hereinabove. The Mamlatdar and ALT, Vaghodia, shall issue notices to the concerned parties to appear before him, within a period of two weeks from the date of receipt of this order and shall decide the matter afresh, by affording the parties an opportunity of hearing and of producing such documents as may be necessary for the adjudication of the matter. He shall, thereafter, pass a reasoned order in accordance with law, within a period of four months from the date of issuance of notice to the parties. Needless to say, since the matter is a very old one, the parties shall cooperate during the hearing, so that it is not SCA/24551/2007 20/20 JUDGMENT unnecessarily delayed. It is further directed that till the final decision of the matter by the Mamlatdar and ALT, Vaghodia, the parties shall maintain status-quo, as of today. 14.It is made clear that while deciding this petition, this Court has not gone into the merits of the case. 15.The petition is disposed of as above. Rule is made absolute to the above extent. There shall be no orders as to costs. (Smt.Abhilasha Kumari, J.) (sunil)