Gujarat High Court
Madhuben Nagindas Jariwala & 2 vs State Of Gujarat & on 1 December, 2015
Author: C.L. Soni
Bench: C.L. Soni
C/SCA/19781/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 19781 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE C.L. SONI
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1 Whether Reporters of Local Papers may be allowed to see No
the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any
order made thereunder ?
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MADHUBEN NAGINDAS JARIWALA & 2....Petitioner(s)
Versus
STATE OF GUJARAT & 11....Respondent(s)
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Appearance:
MR ARPIT A KAPADIA, ADVOCATE for the Petitioner(s) No. 1 3
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CORAM: HONOURABLE MR.JUSTICE C.L. SONI
Date : 01/12/2015
ORAL JUDGMENT
[1] Leave to amend prayer clause no.9(B) and (C) so as to correct number of tenancy case.
[2] It appears that this petition is sponsored litigation and initiated with ulterior motive just to part share in the price of the Page 1 of 6 HC-NIC Page 1 of 6 Created On Thu Dec 03 01:55:57 IST 2015 C/SCA/19781/2015 JUDGMENT property which has sky rocketed during recent times. [3] The facts in nutshell if are noticed and as per the say of learned advocate Mr.Kapadia for the petitioners declaration under section 70(b) of the Bombay Tenancy and Agriculture Lands Act, 1948 ("Tenancy Act" for short) in favour of respondent nos.6 and 7 was made by the competent authority, which as stated by learned advocate Mr.Kapadia came to be confirmed by this Court.
[4] The petitioners who claim that they are daughters of the original owners and have right in the property, have come with following prayers in paragraph no.9 in the present petition filed under Article 226 and 227 of the Constitution of India "9(A) Your Lordships may be pleased to admit and allow this petition.
(B) Your Lordships may be pleased to issue a writ of prohibition or any other appropriate writ, order or direction to quash and set aside the proceeding of Tenancy Case No.21 of 2009, pending in the Court of learned Mamlatdar and ALT (Tenancy), Chhoryasi Prant, Dist Surat.
(C) Your Lordships may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus or any other appropriate writ, order or direction to declare that Tenancy Case No.21 of 2009 in the Court of Mamlatdar and ALT (Tenancy), Chhoryasi Prant, Dist - Surat under section 32G of the Bombay Tenancy and Agricultural Lands Act, 1948 is not maintainable by holding that the land is included in the Urban Agglomeration as the land bearing Survey No.407 / 2 of Mouje Dumas, Taluka - Choryasi, Dist - Surat is being included in the amalgamation plan sanctioned by State of Gujarat under sections 29, 34 and 49 of the Gujarat Town Planning and Urban Development Act, 1976.
D) Your Lordships may be pleased to issue a writ of Mandamus or writ in the nature of Mandamus or any other appropriate writ, order or direction from this Honourable Court to declare that the declaration under Section 70(b) of the Tenancy Act made by the authority in favour of respondent Nos. 6 and 7 is voidabinitio as the present petitioners were not at all being issued notice or given an opportunity of hearing in an inquiry under Section 70(b) of the Act; (E) Pending admission, hearing and final disposal of this petition, Page 2 of 6 HC-NIC Page 2 of 6 Created On Thu Dec 03 01:55:57 IST 2015 C/SCA/19781/2015 JUDGMENT Your Lordships may be pleased to stay the further proceedings of Tenancy Case No. 21 of 2009 in the Court of Mamlatdar and ALT (Tenancy), Choryasi Prant, Dist - Surat under Section 32G of the Bombay Tenancy and Agricultural Lands Act,1948; (F) Your Lordships may be pleased to grant such other and further relied/s that may be deemed fit and proper in the interest of justice."
[5] Learned advocate Mr. Kapadia for the petitioners submitted that the petitioners being daughters of the original owners have full interest in the lands in question and for any proceedings under the provisions of Tenancy law, they were required to be heard. Mr.Kapadia submitted that in the proceedings now initiated by the Mamlatdar under Section 32G, the petitioners are required to be joined as parties and required to be heard as heirs of original owners. Mr. Kapadia submitted that for such purpose the petitioners have made application before the Mamlatdar. Mr. Kapadia submitted that no proceedings under the Tenancy law could be continued now in view of the fact that lands in question have become part of urban agglomeration and therefore, no right under section 32G could be confirmed to the tenants.
[6] The Court having heard learned advocate Mr.Kapadia for the petitioners finds that the petitioners have come at the stage when Mamlatdar is now holding proceedings under Section 32G for determination of the purchase price. For such purpose, Mamlatdar has issued notice to respondent nos.6 and 7, tenants and to the owners of the lands in question by registering Ganot Case No.3 of 2014, copy whereof is annexed at Annexure - O to the petition.
[7] The contention that such proceedings now cannot be initiated since lands have become part of urban agglomeration cannot be accepted as rights acquired under the tenancy law by the tenants could not be defeated simply because lands have become part of urban agglomeration. It is required to be noted that in the present petition, the Page 3 of 6 HC-NIC Page 3 of 6 Created On Thu Dec 03 01:55:57 IST 2015 C/SCA/19781/2015 JUDGMENT petitioners have also sought declaration that declaration made under section 70(b) of the Tenancy Act in favour of respondent nos.6 and 7 is voidabinitio. However, if such prayer is considered, it would amount to sitting in appeal over the decision of this Court and especially at the instance of the petitioners who have never thought it fit to either to be party in the proceedings under section 70(b) or to challenge the ultimate order passed confirming the declaration made under section 70(b) of the Tenancy Act.
[8] The main prayers in the petition are to quash notice issued by the Mamlatdar under section 32G of the Tenancy Act. The petitioners have already made application to be joined as parties in the proceedings pending before the Mamlatdar, copy whereof is annexed at Annexure P and as stated by Mr.Kapadia such application is pending.
[9] The Court finds that claim of the petitioners as regards their rights in the land in question could not be gone into in the present petition filed under Article 226 and 227 of the Constitution of India. It appears that the petitioners just sat on fence and onlooked the proceedings till finalized by High Court on declaration under section 70(b). Now when the Mamlatdar has issued notice to the original owners under section 32G for fixing purchase price, the petitioners have come with the present petition not only seeking to quash notice issued by the Mamlatdar but to declare that proceedings initiated by the Mamlatdar under section 32G are not maintainable. No such prayers could be granted at the instance of the petitioners who appear to have filed present petition with oblique motive.
[10] Learned advocate Mr.Kapadia however, relying on the judgment of this Court in the case of Pirsahabmiya Mohmedmiya v/s. Somabhai Haribhai Patel and Anr. reported in 1985 GLH 608 read Page 4 of 6 HC-NIC Page 4 of 6 Created On Thu Dec 03 01:55:57 IST 2015 C/SCA/19781/2015 JUDGMENT Head Note (A) and submitted that in the inquiry under Section 32G of the Act, not only landlord and tenant, but all interested persons are entitled to be heard. It is required to note that this Court is not examining the issue whether the petitioners could be said to be interested persons or not in the proceedings under section 32G. The application of the petitioners to be joined as parties in the proceedings under section 32G is still pending before the Mamlatdar and therefore, there is no question of considering decision rendered by this Court in the said case.
[11] In the case of Naginbhai Nathubhai Modi alias Bhagar v/s. Naginbhai Ranchhodbhai and Ors. reported in (1997) 10 SCC 407 relied by learned advocate Mr. Kapadia, the Hon'ble Supreme Court held that in order to stake the claim of becoming the owner of a tenanted land, a tenant is required to prove that he was cultivating possession of the tenanted area on the tillers' day i.e. 01.04.1957. Such issue also does not arise in the present case as issue under section 70(b) was already decided after hearing landlords and if the petitioners had any claim in the lands in question or interest in the lands in question, the petitioners could have challenged the orders made under section 70(b) of the Act and affirmed upto this Court.
[12] In above such view of the matter, there is no question of considering the issue that it was for the tenant to prove that he had become deemed purchaser on the tillers' day. Now when the Mamlatdar has initiated proceedings under section 32G for fixing of purchase price, the Court finds that filing of petition before this Court by the petitioners at this stage appears to be not bonafide.
[13] Learned advocate Mr.Kapadia at this stage submitted to consider the contention that in respect of land in question, development Page 5 of 6 HC-NIC Page 5 of 6 Created On Thu Dec 03 01:55:57 IST 2015 C/SCA/19781/2015 JUDGMENT permission is granted and therefore, at this stage Mamlatdar is not justified in initiating proceedings under section 32G of the Tenancy Act. When it was asked to Mr.Kapadia as to whether development permission is granted in favour of the petitioners, Mr.Kapadia said no. If such permission is granted to other persons, it could be said that the petition is sponsored one and the petitioners are playing as tools in the hands of somebody. In such facts situation, the Court would have imposed costs upon the petitioners, but would restrain itself from imposing costs. Suffice it to say that proceedings of the petition initiated by the petitioners are with some other consideration and not for claiming real rights in the property in question.
[14] The petition is therefore devoid of merits and hence, rejected.
(C.L.SONI, J.) satish Page 6 of 6 HC-NIC Page 6 of 6 Created On Thu Dec 03 01:55:57 IST 2015