Disposed

State of Gujarat v. Jayantilal Jamnadas Thakkar

Gujarat HC16 Nov 2022LPA/273/2021

Case brief

AI extract

What is this about?

This appeal challenges an order quashing revenue proceedings against a respondent who claimed land via a will. The High Court held that while testamentary succession to land is now invalid per Kapadia overruling Mahadeo, the lower order was unsustainable because authorities failed to address delay and locus standi and violated natural justice principles. The matter was disposed of reserving partie

What did the court decide?

Impugned order set aside on grounds of delay, locus standi and natural justice violation; liberty reserved for future proceedings on merit.

State of Gujarat Vs Jayantilal Jamnadas Thakkar — Land Acquisition | Gujarat HC (2022)

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/LETTERS PATENT APPEAL NO. 273 of 2021 In

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R/SPECIAL CIVIL APPLICATION NO. 7045 of 2018 With CIVIL APPLICATION (FOR STAY) NO. 1 of 2021

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R/LETTERS PATENT APPEAL NO. 273 of 2021

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STATE OF GUJARAT

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Versus

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JAYANTILAL JAMNADAS THAKKAR

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================================================== Appearance:

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MR MANAN MEHTA, ASSISTANT GOVERNMENT PLEADER for the Appellant(s) No. 1,2,3,4,5 MR AJ YAGNIK(1372) for the Respondent(s) No. 2 MR HRIDAY BUCH(2372) for the Respondent(s) No. 1 UNSERVED EXPIRED (N) for the Respondent(s) No. 3

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CORAM: HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR

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and

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HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

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Date : 16/11/2022

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ORAL JUDGMENT

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(PER : HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR)

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This intra-court appeal lays a challenge to the order dated

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27.2.2020 passed in Special Civil Application No.7045 of 2018.

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Though the matter is listed on admission, by consent of learned advocates appearing for both parties, it is taken up for final

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disposal

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Page 1 of 16

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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Facts shown of unnecessarily details can be crystallised as under.

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The land bearing Survey No.103/1 paiki 2 in Village: Kamodi, Taluka: Deesa, District: Banaskantha, admeasuring 0- H-25-A-28 sq.mtrs. (2591 sq.mtrs.) was originally owned by one Mr. Harijan Pethabhai Bhikabhai and during his lifetime he executed a Will dated 5.7.2005 bequeathing the said property in favour of writ applicant and on his demise on 29.12.2005, writ applicant claims to have acquired right, title and interest over the said property by virtue of testamentary succession. Hence, an application was submitted to the revenue authorities to mutate the revenue records and accordingly, the revenue entry came to be mutated on 23.5.2006 in Revenue Entry No.1395 and same came to be certified on 1.11.2006 in the name of the writ applicant namely, Mr. Jayantilal Jamnadas Thakkar and Smt. Kashiben Bansilal Modi (Heruwala). After a lapse of 5 years, respondent No.2 herein filed an appeal before the Deputy Collector on 29.3.2011 in RTS Appeal No.62 of 2011 which came to be dismissed on 30.4.2012 (Annexure-D). Being

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Page 2 of 16

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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aggrieved by the same, revision was preferred before the Collector, Banaskantha in Revision Case No.38 of 2014 which came to be heard and allowed on 20.9.2014. The Collector has also directed that proceedings be initiated under Section 84C of the Gujarat Tenancy and Agricultural Lands Act, 1949 against the writ applicant. Being aggrieved by and dissatisfied with the order, revision application was filed before the Special Secretary, Revenue Department along with an application for stay of the operation of the order of the Collector. The interim application for stay was rejected and being aggrieved by the same, Special Civil Application No.14326 of 2015 came to be filed challenging the order dated 7.7.2015 (refusing to grant stay of the operation of the order of the Collector). The said Special Civil Application No.14326 of 2015 came to be allowed with a prayer to consider the main revision application and also the issue regarding maintainability and delay aspect. The revision application came to be rejected by Special Secretary, Revenue Department vide order dated 20/26.2.2018. Hence, being aggrieved by the same, Special Civil Application being Special Civil Application No.7045 of 2018 came to be filed.

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Page 3 of 16

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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The learned Single Judge, after considering rival contentions raised thereunder while placing reliance upon the judgment of Mahadeo (Dead Through Legal Representatives) vs. Shakuntalabai [(2017) 13 SCC 756], arrived at a conclusion that right created in favour of writ applicant petitioner through Will dated 5.7.2005 is valid and in such circumstances, the subject property is devolved upon the predecessors-in-title and owner. Hence, the Special Civil Application came to be allowed and the impugned orders dated 26.2.2018 and 20.9.2014 passed in Revision Application No.144 of 2014 and Revision Case No.38 of 2014 came to be quashed. Hence this appeal.

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It is the contention of Mr. Manan Mehta, learned AGP appearing for the State that learned Single Judge erred in arriving at a conclusion that there is devolution of interest by virtue of the Will executed by the deceased owner in favour of a non-agriculturist, they said transaction was contrary to the statutory provision. He would elaborate his submissions by contending that learned Single Judge has relied upon the judgment of the Hon’ble Apex Court in the case of Mahadeo

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Page 4 of 16

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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(supra) which has since been overruled by the Hon’ble Apex Court in the case of Vinodchandra Sakarlal Kapadia vs. State of Gujarat and others [(2020) 18 SCC 144] and as such, the order passed by the learned Single Judge in allowing the writ petition is liable to be quashed.

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Per contra, Mr. Hriday Buch, learned advocate appearing for the writ applicant would support the impugned order by raising two grounds. Firstly, he would submit that when the writ applicant had filed a revision application before the Special Secretary, Revenue Department and an interim prayer as sought for, which was negated by the revisional authority had resulted in writ applicant approaching this Court by filing Special Civil Application No.14362 of 2015 which came to be allowed vide order dated 21.3.2017 by directing the revisional authority to decide the revision in accordance with law after considering all aspects and particularly the aspect of delay and locus standi of respondent No.2 herein at whose instance the proceedings had been initiated and without examining this aspect, the order came to be passed by the revisional authority dated 26.2.2018 and this was one primary ground which was

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Page 5 of 16

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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urged before the learned Single Judge and it merited acceptance and accordingly it was accepted by the learned Single Judge which finding is based on said submission and it does not suffer from any infirmity either on facts or in law which would call for interference. Secondly, he would submit that respondent No.2 herein viz. at whose instance the appeal was filed challenging the mutation entry made in favour of the writ applicant had no locus standi to challenge the order of the mutation entry and hence, consequential proceeding initiated by the revenue authorities was held as without jurisdiction and as such liable to be quashed and accordingly, learned Single Judge has quashed the same which would not call for interference. Hence, he supports the order of the learned Single Judge. Whereas, Mr. Vedant Rajyaguru, learned advocate appearing for respondent No.2 would support the orders of the revisional authority as well as the Collector by contending that very edifice of the writ applicant’s case is based on a Will or in other words, the writ applicant is claiming right, title and interest over the subject property though testamentary succession which has been held to be bad in law by the Hon’ble Apex Court in the

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Page 6 of 16

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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case of Vinodchandra Sakarlal Kapadia (supra) and as such, learned Single Judge had committed a serious error in upsetting the concurrent findings of the revenue authority. Hence, he prays for setting aside the order of the learned Single Judge by supporting the stand taken by the State revenue.

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Having heard the learned advocates appearing for the parties and on perusal of records, we notice that undisputedly, writ applicant is claiming right, title and interest over the said property by virtue of Will dated 5.7.2005 executed by the owner of the property Mr. Bhikhabhai Pethabhai Harijan in favour of the writ applicant. On demise of said Mr. Bhikhabhai Pethabhai Harijan, writ applicant submitted an application to the revenue authorities for mutating the revenue records on the strength of the Will dated 5.7.2005 and claiming testamentary succession which resulted in Mutation Entry No.1395 coming into existence and certified on 1.11.2006.

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Respondent No.2 who undisputedly is an utter stranger to Mr. Bhikhabhai Pethabhai Harijan who is executor of the Will and also the writ applicant (Mr. Jayantilal Jamnadas Thakkar),

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Page 7 of 16

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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as a whistle blower had filed an appeal before the Deputy Collector challenging the revenue entry as well as its certification thereof under Section 203 of the Gujarat Land Revenue Code read with extant rules. The said appeal came to be dismissed on the ground of appellant therein viz. respondent No.2 herein having no locus standi . It has been further observed by the said authority in the order dated 30.4.2012 to the following effect:

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“(5) … … … by virtue of the Will. The relief has been sought for to dismiss the mutation entry no.1395. The applicant has not stated as to what concern he has with said land. Regarding the person … … … is hereby passed.”

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As observed hereinabove and at the cost of repetition, it can be noticed that Deputy Collector had dismissed the appeal on the ground that applicant therein viz. respondent No.2 herein had no locus standi to challenge the mutation entry.

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Be that as it may. Being aggrieved by the said order, an appeal came to be preferred by respondent No.2 herein viz. revision application came to be filed before the Collector who by

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Page 8 of 16

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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order dated 31.12.2015 set aside the order of the Deputy Collector and allowed the revision application in Revision Application No.38 of 2014 by arriving at the following conclusion:

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“In this case, upon considering the revision application, … … … the said Will may be ‘ignored’. Further, the mutation entry by virtue of the same in the records of rights may also be denied. The person who is entitled for the land through Will, he is not an agriculturist. The fact cannot be denied that it is a proper conspiracy of establishing the nonagriculturist as an agriculturist. As the said transaction is illegal, the same can be declared at anytime. The mutation entry … … … the order is hereby passed.”

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Thus, on the ground that writ applicant is not an agriculturist and the alleged transfer of land which has taken place by virtue of testamentary succession being contrary to the provisions of the Tenancy Act was held to be bad in law viz. contrary to Section 63 of the Tenancy Act and as such, order of the Collector came to be confirmed by dismissing the revision and directing the jurisdictional Mamlatdar to conduct procedure

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Page 9 of 16

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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as prescribed under Section 84C of the Tenancy Act at the earliest.

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Being aggrieved by the said order, the writ applicant filed further revision application before the revisional authority viz. Special Secretary, Revenue Department in Revision Application No.144 of 2014 which also came to be dismissed and thereby the order of the Collector came to be confirmed.

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It requires to be noticed at this juncture that in the revision application filed before the Special Secretary, Revenue Department, an application for stay of the impugned order had been filed which was not entertained or in other words, the interim prayer sought for had been rejected vide order dated 7.7.2015. Being aggrieved by the same, Special Civil Application No.14326 of 2015 came to be filed which came to be allowed vide order dated 21.3.2017 directing the Special Secretary adjudicating Revision Application No.144 of 2014 to dispose of the same in accordance with law by taking into consideration the issue of delay and locus standi which was urged by the writ applicant before the said authority. It is apt and

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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appropriate to note at this juncture itself that direction issued by the learned Single Judge seems to have not been taken into consideration at all by the revisional authority. Even otherwise, it is the consistent stand of the writ applicant that respondent No.2 had no locus standi to challenge the mutation entry; and there has been inordinate delay in initiating the proceedings to nullify the mutation entry. It is for this precise reason the learned Single Judge who adjudicated Special Civil Application No.14326 of 2015 had directed the Special Secretary, Revenue Department to adjudicate the issue of delay and locus standi . As observed hereinabove, same seems to have not been taken note of by the revisional authority at all. Even otherwise, it requires to be noticed that appeal which came to be filed by respondent No.2 before the Deputy Collector undisputedly is by invoking provisions under Section 203 of the Gujarat Land Revenue Code, 1874. The appeal being a creature of statute gives a statutory right to the aggrieved person to prefer an appeal if being aggrieved by any decision or order passed by any revenue officer under the Act or any other law being in force at the relevant point of time. Respondent No.2 herein

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Page 11 of 16

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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being an utter stranger and having no locus standi and he not being an ‘aggrieved person’ by the order of mutation entry in any manner whatsoever had preferred an appeal which came to be dismissed on 29.3.2011. Even assuming for a moment, the appeal was held to be maintainable, the issue of delay in initiating the proceedings was stating at the face value of the authority. This aspect of delay ought to have been examined by the revisional authority which was not done. Even otherwise, appeal having been dismissed on the issue of locus standi , the writ applicant was obviously satisfied with the same. It is only after respondent No.2 herein carried the said orders before the higher forum by filing revision application under Section 211 of the Gujarat Land Revenue Code, writ applicant has started pressing for a finding to be recorded by the revisional authority on the issue of delay as well as locus standi . Though said grounds were urged, the Collector seems to have ignored said plea and has proceeded to pass an order on 31.12.2013. This order was carried in further revision before the Special Secretary, Revenue Department, wherein said contention was reiterated viz., aforesaid two aspects were pressed into service

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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but again completely ignored by second revisional authority also. On account of Special Civil Application No.14326 of 2015 landing before the learned Single Judge which was an off-shoot of rejection of interim prayer sought for before the Special Secretary, Revenue Department the learned Single Judge by order dated 7.7.2015 had recited in said Special Civil Application being filed and it came to be allowed by order dated 21.3.2017 and specifically directing the Special Secretary, Revenue Department to adjudicate the revision on merits including the issue regarding maintainability and locus standi . This again was not considered, examined and adjudicated by the Special Secretary, Revenue Department. As such, the order of Special Secretary, Revenue Department itself was not sustainable and on this short ground, appeal has to be allowed. In the normal course, we would have left at it but we are perforced to take note of the subsequent development that has taken place also viz. the learned Single Judge while setting aside the impugned order of the Collector as well as the Special Secretary, Revenue Department, has adjudicated the claim on merit also to arrive at a conclusion that distribution of property

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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through testamentary succession is permissible and in the facts obtained in the present case, the learned Single Judge has held that there was Will dated 5.7.2005 propounded by the beneficiary viz. the writ applicant who acquired title to the subject property on the demise of the original executor of the Will namely, Mr.Bhikhabhai Pethabhai Harijan and concluded that same is permissible by relying upon judgment of the Hon’ble Apex Court in the case of Mahadeo ( supra ) which came to be overruled by the Hon’ble Apex Court in the case of Vinodchandra Sakarlal Kapadia (supra) by holding that principles enunciated in Mahadeo is no more good law. It came to be held:

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“ 37 . In the premises, we accept the construction put by the Division Bench on the provisions that fell for consideration. The challenge to the view taken by the Division Bench must therefore be rejected. We must also observe that the decision of this Court in Mahadeo which had failed to notice the earlier decisions in Sangappa and Jayamma and which is inconsistent with the decisions referred to hereinabove and what we have concluded, must be held to be incorrectly decided.”

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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Hence, we are of the considered view that finding recorded by the learned Single Judge that said transaction is valid in law, cannot be sustained. However, it requires to be noticed at this juncture itself, that if the authorities who were of the opinion or of the view that inheritance of right over the subject property was contrary to Section 63 of the Tenancy Act and as such the proceedings under Section 84C were to be initiated, it was open for them to have initiated the said proceedings against the writ applicant at earlier point of time itself. The order of the Collector on this issue and at this juncture has to be necessarily held as a decisional hearing and authorities would be doing violence to the principles of audi alteram partem as held by the Hon’ble Apex Court in the State of U.P. vs. Pradhan Sangh Kshettra Samiti [1995 Supp 2 SCC 305] vide paragraph 51. The hearing which takes place after decision is arrived at, by the decision-making authority is known as pre-decisional hearing. A hearing which is held after effective decision is reached by the concerned authority is known as a post decisional hearing. As such, the finding recorded by the Collector could not have been sustained and it

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C/LPA/273/2021 JUDGMENT DATED: 16/11/2022

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has been rightly interfered with by the learned Single Judge. We do not find any infirmity in the order of the learned Single Judge to the extent noted hereinabove and as such reserving liberty to the State to proceed against the writ applicant, i.e. respondent No.1 in accordance with law if there being any violation of Section 63, with all just exceptions and reserving liberty to the writ applicant to urge all contentions including the issue regarding delay and maintainability if any and if he chooses to do so in the event of such proceedings were to be initiated against them, present proceeding is disposed of. We also make it clear that in the event of such proceedings being initiated against the writ applicant, the authority shall independently consider the same without being influenced by the observations made in the earlier round of litigation. Accordingly, appeal stands disposed of. All pending application stands consigned to records.

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(ARAVIND KUMAR,CJ)

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(ASHUTOSH J. SHASTRI, J)

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Bharat

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Page 16 of 16

State of Gujarat v. Jayantilal Jamnadas Thakkar

Case brief

What is this about?

What did the court decide?

State of Gujarat v. Jayantilal Jamnadas Thakkar

Case brief

What is this about?

What did the court decide?

What the court decided

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