BABIBEN RIKHAVCHAND DOSHI Vs. DEPUTY COLLECTOR THARAD

JUDGEMENT

(1.) The petitioner Babiben purchased agricultural land bearing Survey No. 78 admeasuring 14 acres 22 gunthas of village Garambdi Taluka Wav on 31st May 1975 for Rs. 6 0 from respondent Manabhai Narsangbhai Patel since deceased. Admittedly while purchasing this land no permission of the Collector or an officer authorised by the State Government in that behalf was obtained before the execution of the sale deed. The question which therefore arose for consideration was whether the sale in favour of the petitioner was invalid in view of Section 63 of the Bombay Tenancy and Agricultural Lands Act 1948 (hereinafter called the Act). The Mamlatdar came to the conclusion that the petitioner was an agriculturist and therefore it was not obligatory to secure the permission of the Collector or the authorised officer before the purchase of the land in question. He therefore upheld the sale transaction by his order dated 15th July 1977 Exhibit 8. The Deputy Collector Tharad however entertained some doubt in this behalf and initiated suo motu proceedings in exercise of revisional jurisdiction conferred upon him by the statute and by his order dated 31st March 1978 he came to the conclusion that the sale was invalid inasmuch as the petitioner was not an agriculturist and had not obtained the prior permission of the Collector or the authorised officer for the purchase of the land. Against this order of the Deputy Collector the petitioner preferred a Revision Application No. TEN. B.A. 435 of 1978 (Ahmedabad) which was disposed of in her favour by the Gujarat Revenue Tribunal on 3rd August 1978 The Revenue Tribunal came to the conclusion that the petitioner was an agriculturist and hence the Deputy Collector was not justified in interfering with the order passed by the Mamlatdar. The Revision Application was allowed and the order of the Deputy Collector was set aside and the order of the Mamlatdar was restored. It appears that thereafter on the application of the original owner Manabhai Narsangbhai Patel the order was reviewed by the Revenue Tribunal on 25th April 1979. By the said order the Tribunal came to the conclusion that the petitioner was not an agriculturist and hence the sale was invalid as hit by Section 63 of the Act. It is against that order that the present petition is preferred under Article 227 of the Constitution.

(2.) Section 63 insofar as it is relevant for our purpose reads as under:

(3.) The case put up by the petitioner is that her father as well as grandfather were agriculturists. Her father expired leaving behind agricultural land which she and her brothers inherited in law. In respect of land bearing Survey No. 804 of Wav admeasuring about 1 acre 18 gunthas a mutation entry No. 236 dated 7th January 1971 came to be made and she and her brothers have been shown as the joint `Kabjedars of that land. That land is indisputably being cultivated by her brothers Chhotalal and Kantilal as family members on behalf of all the co-owners thereof There is no dispute so far as the correctness of this entry No. 236 dated 7th January 1971 is concerned. It is therefore obvious from this entry that the petitioner is a co-owner with her brothers so far as Survey No. 804 of Wav is concerned. It is her case that the land is being cultivated by her two brothers for and on behalf of all the co-owners-Kabjedars and therefore so far as she is concerned she can be said to be personally cultivating the land within the meaning of Section 2(6)(ii) of the Act. She has indisputably proprietary interest in the land bearing Survey No. 804 of Wav. Her interest in that land is joint with that of her two brothers Chhotalal and Kantilal. This undivided interest in the land is being looked after by her two brothers inasmuch as the two brothers are cultivating the land for and on behalf of all the Kabjedars. That being so the question is whether the petitioner could be said to be cultivating the land personally by the labour of a family member(s). The Mamlatdar reached the conclusion that since the interest of the petitioner in the land bearing Survey No. 804 was being looked after by her brothers who were cultivating the land for and on behalf of all the joint Kabjedars there could be no doubt that she was personally cultivating the land within the meaning of Section 2(6)(ii) of the Act. He therefore took the view that she was an agriculturist within the meaning of Section 2(2) and hence was entitled to purchase the agricultural land in question without obtaining prior permission of the Collector or authorised officer as required by Section 63 of the Act. In taking this view the Mamlatdar thought that the fact that the petitioner was married to a shop-keeper and was living in another village was not at all relevant. In this view that he took he upheld the sale The Deputy Collector however 847 in suo motu proceedings held that after marriage a Hindu woman ceases to be a member of the joint family of her father and merely because her name is entered in the revenue records by entry No. 236 dated 7th January 1971 as one of the heirs of her deceased father she cannot be considered to be personally cultivating the land bearing Survey No. 804 and hence the sale in her favour under the registered document dated 31st May 1975 is invalid as being violative of Section 63 of the Act. The Revenue Tribunal by its first order dated 3rd August 1978 came to the conclusion that Survey No. 804 originally belonged to Tribhovandas the grandfather of the petitioner and on his death it was mutated in the names of nine persons who inherited the property and thus the petitioner became a joint holder/owner of that land and hence the Mamlatdar was right in holding that she was an agriculturist at the date when she purchased the land in question under the document of 31st May 1975. The contention that because the applicant was not staying with the members of her fathers family she could not be said to be cultivating the land personally was rejected and the Revenue Tribunal held that simply because she is not residing with the members on her fathers family she does not lose her proprietary title in the land. The Revenue Tribunal therefore upheld the order of the Mamlatdar but on review the Revenue Tribunal after referring to the provisions alluded above came to the conclusion that although the petitioner is entitled to a share in Survey No. 804 merely by inheriting an agricultural land she cannot be said to be cultivating it personally because the other major sharers of land are cultivating the land and along with their shares share of the applicant is being looked after. This observation of the Revenue Tribunal makes it abundantly clear that the other sharers while cultivating the land are also looking after the petitioners undivided share in the land. The Tribunal then proceeds to observe that admittedly she does not stay in the village and since her marriage thirty years ago she is staying in another village and her husband being a shop-keeper who has never cultivated land she by merely inheriting a share in the agricultural property cannot claim to be an agriculturist. With respect this line of reasoning betrays confusion. The Tribunal then proceeds to refer to a judgment of this Court in Special Civil Application No. 1199 of 1966 decided on 18th June 1970 (Per J. B. Mehta J.) wherein it is observed that the word family must be construed in a wider sense to include all persons related by blood or marriage but brushes aside this observation on the plea that it relates to the interpretation of Section 4 of the Act. Reference is then made to a Division Bench judgment in Special Civil Application No. 15 of 1962 and after extracting a paragraph therefrom the Tribunal proceeds to observe that even brothers can be considered as deemed tenants of the land of the sister. Now that was also a case under Section 4 of the Act but the Tribunal relying on the passage extracted from the judgment held that since brothers can be tenants of sisters land the sister cannot be an agriculturist. It is on this line of reasoning that in review the Tribunal came to the conclusion that the petitioner was not an agriculturist and hence the sale was in contravention of Section 63 of the Act.