Kanaiyalal Mafatlal Patel vs The State Of Gujarat

2023 INSC 1052 Non-Reportable

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

Civil Appeal No. …………... of 2023 (@ Special Leave Petition (C) No. 6536 of 2022)

Kanaiyalal Mafatlal Patel … Appellant

Versus

The State of Gujarat and others. … Respondents

JUDGMENT

SANJAY KUMAR, J

1. Leave granted.

2. The appellant was unsuccessful before the Gujarat High Court

in his challenge to the orders passed by the authorities holding that the sale

transaction in his favour was in breach of the provisions of the Gujarat

Prevention of Fragmentation and Consolidation of Holdings Act, 1947 (for Signature Not Verified Digitally signed by Vijay Kumar Date: 2023.12.06

brevity, ‘the Act of 1947’), and directing his summary eviction from the land 16:49:38 IST Reason:

in question. Hence, this appeal.

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3. While ordering notice on 13.04.2022, this Court required the

parties to maintain status quo with regard to possession of the subject land.

4. Ancestral agricultural land admeasuring 4755 square metres,

bearing Block No. 521 (New Block Survey No. 805), situated in Village

Ambapur, Taluka and District Gandhinagar, Gujarat, was inherited by one

Shankarbhai Dungardas. He died in the year 1952 leaving behind three

sons - Becharbhai, Prabhudasbhai and Lalbhai. Becharbhai died on

24.04.1993, leaving behind his widow, Surajben (Respondent No. 14) and

progeny - Shardaben (Respondent No. 10), Mafatbhai (Respondent No.

11), Kokilaben (Respondent No. 12), Manjulaben (Respondent No. 13) and

Sakarben (Respondent No. 15). Prabhudasbhai died on 21.01.2007,

leaving behind his widow, Dahiben (Respondent No. 8), along with two

sons and a daughter - Jayantibhai (Respondent No. 6), Keshavlal

(Respondent No. 7) and Belaben (Respondent No. 9). Lalbhai died on

04.08.1996, leaving behind his widow, Gangaben (Respondent No. 19),

two sons and a daughter - Ghanshyambhai (Respondent No. 16), Rajubhai

(Respondent No. 17) and Vinaben (Respondent No. 18).

5. It is the case of the appellant that the larger extent of 4755

square metres, owned by Shankarbhai, was partitioned amongst the

families of his three sons, whereby 2377.50 square metres fell to the share

2 of Prabhudasbhai and Respondent Nos. 6 to 9 while the remaining extent

of 2377.50 square metres was allotted to the other two branches,

comprising Respondent Nos. 10 to 19. The appellant further claims that

Respondent Nos. 10 to 19 executed Agreement of Sale dated 29.09.2006

in his favour proposing to sell their share of land, viz., 2377.50 square

metres, to him for a sale consideration of ₹17,51,000/- and Prabhudasbhai,

the husband/father of Respondent Nos. 6 to 9, who was still alive at that

time, signed this agreement as a confirming party, certifying that he had a

half-share in the larger extent of land, which he had not sold, and confirmed

that he had not received any amount from the sale consideration.

Thereafter, Respondent Nos. 10 to 19 executed a Registered Sale Deed in

favour of the appellant on 12.07.2007, alienating their share of the land in

his favour. Notably, the Agreement of Sale dated 29.09.2006 recorded that

Respondent Nos. 10 to 19 had received the entire sale consideration of

₹17,51,000/- in cash and through cheques gradually, whereas the Sale

Deed dated 12.07.2007 noted the sale consideration as ₹1,07,000/- only.

Pursuant thereto, Entry No. 6129 was made on 25.07.2007 in the revenue

records carrying out mutation in his favour. The names of Respondent Nos.

6 to 9 were also mutated, vide Entry No. 6167 dated 26.12.2007, after the

death of Prabhudasbhai on 21.01.2007.

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6. Respondent Nos. 6 to 9 then filed Case No.

PO/Fragmentation/SR/02/2010 in March, 2010, before the Prant Officer,

Gandhinagar, challenging the sale transaction of the year 2007 in favour of

the appellant, alleging that it was in violation of the provisions of the Act of

1947. By order dated 17.05.2012, the Prant Officer held the sale

transaction to be illegal on the ground that it was in breach of Section 31(1)

(b) of the Act of 1947. In consequence, he ordered cancellation of the

appellant’s sale deed and payment of a fine of ₹250/- by him. He also

directed initiation of proceedings to remove the appellant from the land.

7. A revision under Section 35 of the Act of 1947 was thereupon

filed in the name of the appellant before the Gujarat Government, assailing

the aforestated order dated 17.05.2012. Significantly, the appellant claims

that he never filed this revision. In any event, the same was taken on file as

Case No. MVV/Con/Ten/3/2013 by the Additional Secretary, Revenue

Department (Appeals), Government of Gujarat, and it was dismissed, vide

order dated 10.07.2015. The appellant claims that he came to know of the

order dated 17.05.2012 only in May, 2018, and filed a revision in Case No.

MVV/Con/Ten/4/2018 before the Gujarat Government. This revision was

dismissed by the Additional Secretary, Revenue Department (Appeals),

Government of Gujarat, vide order dated 06.09.2018.

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8. Therein, apart from holding that the impugned order dated

17.05.2012 was proper and lawful, the revisional authority held that the

principle of res judicata would be applicable as the issue already stood

decided by the order dated 10.07.2015 in Case No. MVV/Con/Ten/3/2013.

Aggrieved, the appellant approached the Gujarat High Court under Article

226 of the Constitution, vide Special Civil Application No. 2709 of 2020. By

judgment dated 24.12.2021, a learned Judge of the Gujarat High Court

dismissed the said writ petition.

9. Assailing this judgment, the appellant preferred Letters Patent

Appeal No. 14 of 2022 before a Division Bench of the Gujarat High Court,

but only to meet with the same fate as the said appeal was dismissed by

order dated 12.01.2022. Therein, the Division Bench stressed on the delay

on the part of the appellant in preferring a revision in the year 2018 against

the order dated 17.05.2012. Reference was made to the observations in

the judgment under appeal in the context of the address of the appellant

vis-à-vis his claim that he was never served with notice and that he never

preferred the first revision. Further, the Division Bench held that

Respondent Nos. 6 to 9 had the locus to challenge the sale as the land

remained joint and there was no partition, whereby there could be

demarcation thereof and sale of a specific portion to the appellant.

5 Referring to Section 31(1)(b) of the Act of 1947, the Division Bench

affirmed that transfer of the land in favour of the appellant without the prior

permission of the Collector was in breach thereof, and that the authorities

as well as the learned Judge had committed no error in deciding the case.

It is against this order that the appellant filed this appeal.

10. Perusal of the material on record reflects that the order dated

17.05.2012 passed by the Prant Officer, Gandhinagar, in the case filed by

Respondent Nos. 6 to 9, noted the address of the appellant as under:

‘Res: B/51, Sanskar Society, Shahibaug, Ahmedabad - 380004’.

The first revision filed in the name of the appellant against this

order also reflected the very same address. Surprisingly, though the

appellant claimed that he did not reside at the aforestated address, his

revision filed in the year 2018 again reflected the same address. He,

however, filed a criminal complaint on 18.12.2019 alleging that some

person had impersonated him and filed the first revision. It appears that no

action was taken thereon due to the pendency of this litigation. The

appellant claims that his actual address is ‘B/9, Sadbhav Bungalow,

opposite Om Tower, Shahibaug, Ahmedabad – 380004’. It is stated that the

address reflected in the order dated 17.05.2012 was repeated in the

revision filed in the year 2018 as the cause title of the revision necessarily

6 had to tally with the cause title in the impugned order. However, in the

revision, he did not raise the issue of his correct address while contending

that he was not served with any notice.

11. Section 31 of the Act of 1947, to the extent relevant, reads thus:

“[(1)] Notwithstanding anything contained in any law for the time being in force, no holding allotted under this Act, nor any part thereof, shall be-

(a) ……..

(b) sub-divided (including sub-division by a decree or order of a Civil Court or any other competent authority) except with the permission in writing of the [Collector] (2) Nothing in sub-section (1) -

(a) shall apply to a transfer of a holding allotted under this Act where the transfer is of the entire holding, not involving any sub-division thereof, or to a sub-division of a holding allotted under this Act where such sub-division is made to provide for the shares of persons entitled thereto on the death of the owner, and does not create any fragment; or…….”

12. In the context of Section 31(2) of the Act of 1947, a ‘fragment’,

as defined under Section 2(4) thereof, means a plot of land of less extent

than the appropriate standard area determined under the Act of 1947. In

terms of such determination in so far as irrigated land is concerned, a

‘fragment’ would mean an extent less than Ac 0.20 Guntas. As he was sold

an extent of Ac 0.23 Guntas, the appellant contends that it is not a fragment

and Section 31(1)(b) of the Act of 1947 would have no application to the

sale transaction in his favour. He also contends that, though the Division

7 Bench recorded a finding that there was no demarcation of the larger

extent of land pursuant to a partition, it is a matter of record that

Respondent Nos. 6 to 9 executed a sale agreement, titled ‘Earnest Deed

without possession’, on 11.11.2014 proposing to sell their share of land,

quantified as 0-23-77.5, to a third party. He would argue that this act on

their part foreclosed any argument that there was no partition or

demarcation of the larger extent, whereby Respondent Nos. 10 to 19 could

have sold him their half-share of land which tallies with the half-share

claimed by Respondent Nos. 6 to 9 in the sale agreement.

13. Reference is also made by the appellant to the entries in the

revenue records in relation to the subject land, showing that dry crops were

grown in 2 acres while rice was cultivated in an extent of Ac 0.20 Guntas

and an extent of Ac 0.20 Guntas was a garden. These entries are relied

upon to show that the land was irrigated. On the other hand, Respondent

Nos. 6 to 9 place reliance on Village Form No. 12, relating to the years

2006-2007 and 2007-2008, wherein it is stated that there was no source of

irrigation for the larger extent of 0-47-55. Countering this, the appellant

would point out that the earlier entries, from the year 1951 onwards upto

the year 1964, show that paddy, cotton, millets and aniseed were grown in

the land, indicating that it had a source of irrigation.

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14. Given the aforestated sequence of events, it is manifest that the

appellant did not take adequate care to establish his case. However, the

fact also remains that he was never given a proper hearing on merits by the

authorities before holding against him. The initial order dated 17.05.2012

merely stated that notice was served upon the parties and, admittedly, no

opportunity of hearing was afforded to the appellant. The controversy as to

the correct address of the appellant need not trouble this Court, despite his

filing a revision with the same address as was shown in the first revision.

The irrefutable fact is that he was not given a full hearing on merits either

by the original authority or by the revisional authority.

15. The findings recorded by the High Court that there was no

partition and that the land was never demarcated, whereby a portion

thereof could have been sold to the appellant, do not take into account the

fact that Respondent Nos. 6 to 9 themselves executed a sale agreement in

the year 2014 and the contents thereof support the appellant’s claim that

Respondent Nos. 10 to 19 were entitled to sell him their half-share. The

issue as to whether the land sold to the appellant would constitute a

‘fragment’ in terms of Section 31(1)(b) read with Section 2(4) of the Act of

1947 and more so, in the context of whether the said land is irrigated land

or dry land, has also not been examined extensively or in depth.

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16. Reduction of the sale consideration in the appellant’s

documents from ₹17,51,000/- to ₹1,07,000/- would have to be examined in

the light of the appellant’s claim that his vendors wanted him to show a

reduced sale consideration in the sale deed for the purpose of registration

charges. The issue as to whether Respondent Nos. 6 to 9 were entitled to

reopen the sale transaction of 2007 in the year 2010, despite the

appellant’s claim that Prabhudasbhai knew of and approved the sale

transaction, would also have to be examined as it is claimed by

Respondent Nos. 6 to 9 that the sale agreement in which Prabhudasbhai

was shown as a confirming party never saw the light of day earlier. All

these aspects would require verification and adjudication upon evaluation

of evidence. The parties would be in a position to adduce proper evidence

in support of their respective cases only if they are given opportunity to do

so before the original authority, viz., the Prant Officer, Gandhinagar.

17. Further, having purchased the land in the year 2007 after

parting with valuable consideration, the appellant cannot be condemned

without providing him a full opportunity to put forth his case with supporting

evidence. Accordingly, we allow this appeal and set aside the orders

passed by the Gujarat High Court as well as the orders passed by the

authorities and remand the matter for consideration afresh on facts and

10 law. Case No. PO/Fragmentation/SR/02/2010 filed by Respondent Nos. 6

to 9 before the Prant Officer, Gandhinagar, State of Gujarat, shall stand

restored to the file. The Prant Officer shall give due notice to both parties

fixing an appropriate date for taking up the case; allow them full opportunity

to adduce evidence, oral and documentary; and thereafter take a reasoned

decision in the matter in accordance with law. This exercise shall be

completed expeditiously and preferably within six months from the date of

receipt of a copy of this order.

Pending miscellaneous applications shall stand disposed of.

In the circumstances, parties shall bear their own costs.

………………………..,J (C.T. RAVIKUMAR)

………………………..,J (SANJAY KUMAR) December 6, 2023.

New Delhi.

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