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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
NIRZAR S. DESAI, J.
STATE OF GUJARAT – APPELLANT
Versus
LEGAL HEIR OF THAKORBHAI DAHYABHAI MODI – RESPONDENT
SPECIAL CIVIL APPLICATION NO. 9439 of 2018
Decided On : 03-01-2022
Special Civil Application - Bombay Tenancy and Agricultural Lands Act, 1948 - Section 63, 74, 76A, 84(C) - Company was not an agriculturist as per Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948, proceedings were initiated under Section 84(C) - Company was having agricultural land in a State of Karnataka and not in State of Gujarat and there is a breach of Section 63 of Tenancy Act and transfer of land in favour of Respondent by deceased was held to be invalid and hence proceedings under Section 84(C) of Tenancy Act were initiated - Assistant Government Pleader submitted original transaction was held to be invalid as it was found to be in breach of provisions of Section 63 of Act and proceedings under Section 84(c) of Tenancy Act were carried out and land was directed to be vested in State Government - Respondent submitted that what is paramount is to see that object of Act is achieved - When both parties, as agreed, were ready and shown willingness to restore original position of land, State is not justified in insisting for vesting land into Government as if despite fact that parties have agreed to restore original post of land in question which was prevailing before transaction which was held to be invalid, in that case, it would ultimately frustrate purpose for which Act is enacted – Held, submissions made by respondent in respect of the fact that the land was purchased by Respondent, now equities are created in favour of Respondent, Respondent is bona fide purchaser as when he purchased land there was no litigation pending are concerned, it is true that date on which land in question was sold by Respondent by way of registered sale-deed, no case was pending on date of registration of sale-deed whereas the Deputy Collector passed an order and Revision before Gujarat Revenue Tribunal, as it seems from record, however, though Respondent purchased land when there was no litigation pending before any authority, predecessor-in-title of land in question Respondent became owner of land in question by way of proceedings which were not in accordance with law as Division Bench of this Court never permitted any fresh proceeding under Section 84(c) of Tenancy Act and also when predecessor-in-title of land in question had become owner of land by virtue of proceedings which were not permitted as per law, by confirming sale in favour of Respondent an illegality committed by authority cannot be permitted to be regularised impliedly - Entire proceedings under Section 84(c) of Act based upon order of Collector, are held to be bad, contrary to law and without jurisdiction, any transaction or any sale-deed or assignment of land pursuant to such proceedings and order passed can be said to be void transaction and those arguments also cannot sustain - Petition allowed.
JUDGMENT :
1. By way of this petition, the petitioner – State of Gujarat has prayed for following reliefs:
B. This Hon’ble Court may be pleased to quash and set aside the impugned order dated 05.10.2016 passed by the Gujarat Revenue Tribunal passed in Revision Application No.TEN/ BS/05/2016 and order dated 11.08.2014 passed by the Deputy Collector, Valsad and order dated 08.08.2013 passed by the Mamlatdar & ALT, Valsad.
C. Pending, admission, hearing and final disposal of this petition, this Hon’ble Court may be pleased to stay the effect and operation impugned order dated 05.10.2016 passed by the Gujarat Revenue Tribunal passed in Revision Application No.TEN/BS/05/2016.
D. Grant such other and further relief/s as may be deemed just and proper in the circumstances of the case.”
2. Heard learned Assistant Government Pleader Mr.Bharat Vyas for the petitioner and learned senior advocate Mr.N.D.Nanavati with learned advocate Ms.Disha Nanavati for Respondent No.1, learned advocate Mr.Yash Nanavati for Respondent No.2 and learned advocate Mr.Jaivik Nanavati for Respondent No.3. By consent of the parties, the matter was taken up for final hearing.
2.1 Rule. Learned advocate Ms.Disha Nanavati, learned advocate Mr.Yash Nanavati and learned advocate Jaivik Bhatt waive service of notice of Rule on behalf of respective respondents.
3. Brief facts giving rise to the present petition are stated as under:
3.1 One Thakorbhai Dayabhai Modi was the original owner of the land situated at Survey No.51 admeasuring 3 Acres 12 Gunthas and Survey No.52/1 admeasuring 0 Acre 3 Gunthas at Village:Vashiyar, Tal.Dist.Valsad.
3.2 On 26.03.1969, the aforesaid land was sold by the said Thakorbhai Dayabhai Modi (deceased now) to one Shamalsha Girdhari Company, which is a partnership firm. As the said company was not an agriculturist as per Section 63 of the Bombay Tenancy and Agricultural Lands Act, 1948 (‘the Tenancy Act’, for short), proceedings were initiated under Section 84(C) by Mamlatdar & ALT, Valsad, which was numbered as Tenancy / 84(C) / 4704 / 1978. In the proceedings, it transpires that Shamalsha Girdhari Company was having agricultural land in a State of Karnataka and not in the State of Gujarat and hence there is a breach of Section 63 of the Tenancy Act and hence transfer of the land in favour of Shamalsha Girdhari Company (Respondent No.2 herein) by deceased Thakorbhai Dayabhai Modi (represented through his legal heir as Respondent No.1 herein) was held to be invalid and hence proceedings under Section 84(C) of the Tenancy Act were initiated.
3.3 In the aforesaid proceedings, learned Mamlatdar and ALT, Valsad, in his order dated 20.01.1979 categorically observed that as per provisions of Section 84 (c) (2) of Tenancy Act, if both the parties show willingness to restore the original position within a period of three months, as provided in section 84(c) of the Tenancy Act, in that case, such sale or acquisition cannot be said to be invalid. However, in the instant case, as the purchaser of the land gave a specific statement on 20.01.1979 that he was not ready to restore original position in respect of that land in question and on the contrary gave a deposition to the effect that land be vested into the Government and also considering the fact that even the original owner of the land i.e. present Respondent No.1 was also not ready and willing to take back possession of the land, the land was directed to be vested in Government vide order dated 20.01.1979. The aforesaid order was challenged by Respondent No.2 – Shamalsha Girdhari Company by preferring appeal under Section 74 of the Tenancy Act being Tenancy Appeal No.92 of 1980. Vide order dated 14.10.1981, the learned Deputy Collector (Land Reforms) confirmed the order passed by the Mamlatdar and ALT, Valsad dated 20.01.1979.
3.4 Against the aforesaid order, Respondent No.2 preferred Revision Application under Section 76 of the
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