Gujarat High Court
Ambubhai Shivabhai Chauhan S/O Late ... vs State Of Gujarat on 6 October, 2020
Author: Bhargav D. Karia
Bench: Bhargav D. Karia
C/SCA/8506/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 8506 of 2020
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AMBUBHAI SHIVABHAI CHAUHAN S/O LATE SHIVABHAI CHATURBHAI
CHAUHAN
Versus
STATE OF GUJARAT
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Appearance:
MR UDAY M JOSHI(380) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 6
DELETED(20) for the Respondent(s) No. 3
MR MEET THAKKAR, AGP for the Respondent(s) No. 1
MS TRUSHA K PATEL(2434) for the Respondent(s) No. 7
NOTICE NOT RECD BACK(3) for the Respondent(s) No. 8
NOTICE SERVED(4) for the Respondent(s) No.
2,4,5,6.1,6.2,6.3,6.4,6.5,8.1,8.2,8.3
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CORAM: HONOURABLE MR. JUSTICE BHARGAV D. KARIA
Date : 06/10/2020
ORAL ORDER
1. Heard learned advocate Mr. Uday Joshi for the petitioners, learned advocate Ms. Trusha Patel for respondent no.7 and learned Assistant Government Pleader Mr. Meet Thakkar for the respondent State through video conference.
2. By this petition under Articles 226 and 227 of the Constitution of India, the petitioners have prayed for the following reliefs :
"(A) Your Lordship may be pleased to admit and allow this petition;Page 1 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER
(B) Your Lordship may be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction, for quashing order dated 24.12.2019 made by respondent No.3 in Revision Application No.TEN/BA/2014.09;
(C) Pending admission hearing and final disposal of this petition, Your Lordship may be pleased to stay the execution, implementation and operation of impugned order dated 24.12.2019 made by respondent No.3 in Revision Application No.TEN/BA/2014.09;
(D) Your Lordship may be pleased to grant an ex parte adinterim relief in terms of para 9(C) above;
(E) Your Lordship may be pleased to pass such other and further orders in the interest of justice as may be deemed fit, just and proper in the peculiar facts and circumstances of this case."
3. The brief facts of the case are as under:
3.1) Petitioners are legal heirs of late Bai Jhaver who was the widow of late Shivabhai Chaturbhai Chauhan and tenant / occupant of land bearing Survey No.42 of Village: Sama, Vadodara, admeasuring 2 acres and 29 guntha.
3.2) On 22.6.1964, a notification was issued by the competent authority including the limits of Village: Sama within the limits of Municipal Corporation of Vadodara.
3.3) It is the case of the petitioners that Page 2 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER the said land was owned by one Ardeshar Fitter who passed away leaving behind him two legal heirs viz. Ratibai and Gulbai.
3.4) Since late Shivabhai Chaturbhai, father of petitioners, was a tenant on the said land prior to 1957, a claim of tenancy was raised.
The said case registered as Tenancy Case No.238/Sama/75 was decided by the Mamlatdar on 1.8.1975.
3.5) Shivabhai Chaturbhai passed away and therefore, his heirs had initiated proceedings before the Mamlatdar under provisions of Section 32G of the Act.
3.6) The said decision dated 1.8.1975 was taken up in revision by Ardeshar Fitter, owner of the land before the Deputy Collector, who allowed the same, vide order dated 13.3.1980 and remanded the proceedings to Mamlatdar. On 13.10.1982, the Mamlatdar closed inquiry as the aforesaid land became a part of the limits of Municipal Corporation of Vadodara.
3.7) It is the case of the petitioners that another revision application was filed challenging order dated 13.10.1982 which was quashed and once again the proceedings were remanded to the Mamlatdar.
Page 3 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER3.8) Thereafter, the Mamlatdar in Tenancy Case No.5522 of 1984 came to a conclusion and decided that widow of late Shivabhai Chaturbhai, i.e. Bai Jhaver was entitled to purchase land under Section 32 of the Gujarat Tenancy and Agricultural Lands Act.
3.9) The aforesaid order dated 26.12.1985 passed by the Mamlatdar was challenged by way of an appeal by heirs of original owner, Ardeshar Fitter. However, the said appeal was also dismissed vide order dated 30.6.1986.
3.10) The said order dated 30.6.1986 was taken in revision before respondent No.3 by the heirs of original owner Ardeshar Fitter which was registered as Revision Application No.TEN.B.A/831/86. However, the said appeal was rejected vide order dated 18.10.1991 whereby order dated 26.12.1985 passed by the Mamlatdar came to be confirmed.
3.11) Against the said order of revision, review was also preferred which came to be dismissed vide order dated 31.5.2007.
3.12) It is the case of the petitioners that as heir of late Shivabhai Chaturbhai was already Page 4 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER declared to be a tenant, an order was passed for fixing purchase price in Tenancy Case No.69/64. Pursuant to this, on 15.12.1997, Mutation Entry No.6554 was posted entering names of heirs of late Shivabhai as occupants of the aforesaid land. The Deputy Collector thereafter vide order dated 15.12.1998 also confirmed the aforesaid order of Mamlatdar dated 30.12.1996 fixing the purchase price. On 27.4.2003, Mutation Entry No.7908 was posted in records whereby facts of issuance of certificate under Section 32M of the Act came to be recorded.
3.13) A writ petition being SCA No.29259 of 2007 was preferred in this Court challenging the said order dated 31.5.2007 passed by respondent No.3 wherein vide order dated 26.12.2007, this Court remanded the matter to respondent No.3 to decide the issue on merits afresh in accordance with law and after giving notices to the parties.
3.14) On 2.3.2009, the aforesaid review application filed for review of order dated 31.5.2007 came to be withdrawn.
3.15) It is the case of the petitioners that the legal heir of late Ardeshar Fitter, Ratibai, executed an agreement to sell pertaining to said land in favour of respondent No.4 on 4.4.1986 Page 5 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER who paid Rs.2.71 lakh. However, since the tenancy proceedings were pending, sale deed was not executed in favour of respondent No.4.
3.16) Thereafter, respondent No.4 filed a suit for specific performance which was registered as Regular Civil Suit No.52 of 2009 in the competent Court since an agreement to sell was executed by the legal heir of the original owner with him.
3.17) Respondent No.4 also filed Revision Application No.TEN.B.A/214/2009 challenging order dated 26.12.1985 passed by the Mamlatdar. The aforesaid order dated 30.6.1986 was also taken in revision whereby appeal filed by heirs of original owner late Ardeshar Fitter challenging order dated 26.12.1985 was dismissed. Respondent No.4, in addition to this, also filed Review Application No.TEN.C.A/50/09 challenging the order dated 2.3.2009 whereby review application was permitted to be withdrawn by the original owner.
3.18) Respondent No.4 on 30.11.2010 also filed appeal which was registered as Vashi/6349/10 challenging order dated 30.12.1996 fixing purchase price in Tenancy Case No.69/64. However, the said appeal was dismissed by the Deputy Collector on the ground of delay caused Page 6 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER in filing the same, vide order dated 16.12.2010.
3.19) It is the case of the petitioners that on 27/28.6.2012, respondent No.2 passed an order converting the land in question as non agricultural land for residential purpose on terms and conditions as mentioned therein, i.e. payment of premium which was accordingly paid on 11.9.2012.
3.20) On 2.11.2012, the land in question was sold by Bai Jhaver and other legal heirs of late Shivabhai Chaturbhai, including petitioners, to one Aawas Developers.
3.21) Prior thereto on 5.3.2012, respondent No.4 assigned his rights to respondent No.7 by way of an agreement, which he had derived from Ratibai, legal heir of original owner, Ardeshar Fitter vide agreement to sell dated 4.4.1986.
3.22) Respondent No.7 in view of the aforesaid agreement to sell, filed Special Civil Suit No.263 of 2014 before the competent Court seeking specific performance of the agreement dated 5.3.2012 as well as sought cancellation of sale deed dated 2.11.2012 executed by Bai Jhaver, widow of Shivabhai Chaturbhai.
Page 7 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER3.23) Respondent No.7 also filed application for being joined as party in tenancy proceedings bearing No.TEN.B.A.214/09 as well as Review Application No.5/09 which was allowed by respondent No.3 on 13.10.2014 joining respondent No.7 as party in both proceedings.
3.24) On 21.11.2014, respondent No.4 submitted a withdrawal purshis / application for withdrawal of tenancy proceedings bearing No.TEN.B.A.214/09 as well as Review Application No.5/09. However, this was objected to by respondent No.7 who requested for transposing himself as the applicant.
3.25) On 11.12.2014, Review Application No.5/09 was permitted to be withdrawn. However, no order was passed on revision application bearing No.TEN.B.A.214/09. However, after hearing respondent No.7, the objections raised by respondent No.7 were dismissed by respondent No.3.
3.26) Thereafter, a writ petition being SCA No.2290/2015 came to be filed in this Court by respondent No.7 challenging order dated 11.12.2014 passed in revision application bearing No.TEN.B.A.214/09. Similarly, a writ petition being SCA No.2291/2015 was filed challenging order dated 11.12.2014 passed in Page 8 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER Review Application No.5/09.
3.27) The aforesaid writ petitions were decided by this Court vide orders dated 26.9.2016, wherein the impugned orders passed by respondent No.3 Revenue Tribunal were set aside and the matter was remanded to respondent No.3 for deciding the applications afresh in accordance with law.
3.28) Petitioners thereafter filed Letters Patent Appeal challenging aforesaid orders passed by this Court dated 26.9.2016 being LPA No.1084 of 2016 in SCA No.2290 of2015 and LPA No.1089 of 2016 in SCA No.2291 of 2015 on various grounds. The said LPA No.1084 of 2016 came to be disposed of vide order dated 18.2.2019, whereby the proceedings came to be remanded by this Court directing respondent No.3 Tribunal to decide the application filed by Ratibai (through legal heir Behram Shapurji Khandadiya) within the time limit as stated therein.
3.29) Subsequent thereto, respondent No.3, after hearing the parties, which were represented, passed order dated 24.12.2019 in Revision Application No.TEN/B.A/2014/09, by which respondent No.7 was directed to be added as applicant No.2 and deleted as opponent No.4 Page 9 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER in the said proceedings. Accordingly, respondent No.7 was directed to be added as applicant No.2 in the revision proceedings and transposed accordingly.
3.30) Being aggrieved by the aforesaid order dated 24.12.2019 of transposing respondent no.7 as applicant in the revision proceedings pending before the respondent no.3 Revenue Tribunal, the petitioner has preferred the present petition.
4. Learned advocate Mr.Uday Joshi appearing for the petitioners submitted that the petitioners are aggrieved with the impugned order passed by the respondent No.3 as the respondent No.3 has erred in not appreciating the provisions of Order 23, Rule 1A of the Code of Civil Procedure, 1908 (for short 'the Code') which provides that where a suit is withdrawn or amended by a plaintiff, one of the defendants may apply to the court to transpose himself as a plaintiff under Order 1, Rule 10 and on consideration thereof having due regard to the question whether such an applicant has substantial question to be decided against any other defendants but in the facts of the case, the respondent No.7 has no right to be transposed as the original applicant sought permission to withdraw the revision whereas the respondent no.7 has no right to continue the proceedings as the respondent No.7 had enter Page 10 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER into an assignment deed with respondent No.4 who did not have any substantive right as he was only having an agreement to sale in his favour. Mr. Joshi further submitted that respondent No.3 Revenue Tribunal has thus erred in permitting the respondent No.7 to transpose as petitioner in the revision application by allowing the application of the respondent No.7 and not permitting the respondent No.4 to withdraw the revision application.
5. Mr. Joshi also submitted that the provisions of Order 23, Rule 1A of the Code, clearly provides that when the right of a person is not affected by withdrawal of the suit, then such person cannot be permitted to be transposed and step into the shoes of the original plaintiff. It was therefore submitted that the respondent No.7 was not having any better title then the respondent no. 4 as no sale deed had taken place in favour of respondent no.4 and under such circumstances, the Revenue Tribunal has committed a grave mistake by permitting the respondent No.7 to step into the shoes of the respondent No.4 original revisionist.
6. Mr. Joshi invited the attention of this Court to the order dated 9.02.2011 passed by this Court (Coram:Hon'ble Mr. Justice K.S. Jhaveri) in Appeal from Order No.38/2011 to submit that this Court while considering the order of rejection Page 11 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER passed below application Ex5 in Special Civil Suit No.50/2009 has held that the respondent No.4 Ashokbhai Ochchhavlal Parikh had no locus standi to prefer review application which was filed after filing of the suit. Reliance was placed on paragraph no.9 of the said judgment which reads as under:
"Thus, as found by the Trial Court the petitioner has no locus standi to prefer Review Application which is filed after filing the present suit. The prima facie case found by the trial Court is that the petitioner cannot claim any legal right, title or interest in the suit land on the strength of the Notarised Banakhat produced at Mark 4/4 under section 54 of the Transfer of Property Act. It is well settled that merely execution of an agreement to sell does not create any right to sell the property. Further, the petitioner has failed to make out a prima facie case, irreparable loss and balance of convenience. Learned advocate for the petitioner is not able to point out anything from the record to take a view of the matter. I am in complete agreement with the reasonings adopted and findings arrived at by the trial court. Hence the Appeal is dismissed."
7. Mr. Joshi therefore, submitted that in view of the above order passed by this Court, when respondent no.4 had no right or locus standi as found by the trial court in the Special Civil Suit No. 50/2009, in view of merely the execution of an agreement to sale which does not create any right to sell the property, the respondent no.7 cannot be said to have any right on the basis of assignment deed executed by the respondent no.4. It was therefore submitted that Page 12 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER when the original revisionist respondent No.4 had no right or locus standi, then respondent No.7 could not claim any right or locus standi when he has only assignment deed in his favour from respondent No.4 who in turn also had no sale deed in his favour. It was therefore prayed that the impugned order is required to be quashed and set aside.
8. On the other hand, learned advocate Ms. Trusha Patel appearing for the respondent No.7 submitted that the rights of the respondent No.7 would be affected, if he is not transposed in place of respondent No.4. She relied upon the chronology of events referred to in the affidavit in reply to submit that the original revisionist respondent no.4 assigned his right to respondent No.7 on 05.03.2012 by executing the assignment deed and in paragraph no. 3 of the assignment deed, it is stated that respondent no.4 Ashokbhai had undertaken that he would proceed with the proceedings filed before Revenue Tribunal vigilantly and with utmost care and that the executor would always support the assignee so as to protect his interest in the said property in litigation. In paragraph no. 4 of the assignment deed, it is also mentioned that the executor promised not to act against the interest of the assignee. Ms. Patel therefore, submitted that after taking consideration of Rs. 31 lakhs from the Page 13 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER respondent No.7, respondent No.4 Ashokbhai has filed an application before the Tribunal to withdraw the Revision Application and therefore, in such case, the right of the petitioner would be affected. It was pointed out that considering such facts, the Tribunal has passed the impugned order permitting the respondent No.7 to be transposed as revisionist in place of Ashokbhai respondent No.4.
9. Ms. Patel further pointed out that respondent No.4 did not raise any objection for transposing the respondent No.7 as revisionist. It was also submitted by Ms. Patel that this Court in order passed in Special Civil Application No. 29259/2007 directed the Tribunal to decide the matter on merits and as such, disposal of revision application only on the basis of withdrawal pursis without entering into the merits, cannot be permitted, more particularly, when the rights of the respondent No.7 are affected.
10. With regard to the contention of the petitioner that the order passed below Ex5 in Special Civil Suit No. 50/2009 and confirmed by this court whereby the application for interim relief was rejected, Ms. Patel submitted that dismissal of the interim injunction application would not affect the right of the respondent No.7, more particularly, when respondent No.7 Page 14 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER has already been joined in the pending proceedings before the Tribunal. It was also pointed out that respondent No.7 has filed Civil Suit No.263/2014 seeking specific performance and said civil suit is pending for adjudication before the Civil Court.
11. Ms. Patel further submitted that provision of Order 23, Rule 1A of the Code, is squarely applicable as the respondent No.7 has right to sue. It was submitted that Rule 1A of Order 23 only provides for transposing a party to be plaintiff, if substantial question is to be decided. In the facts of the case, the respondent No.7 has the same grievance as that of respondent No.4 Ashokbhai, for which the revision application was filed and as such, there is no infirmity in the impugned order passed by the Tribunal permitting the respondent No.7 to be transposed as revisionist.
12. It was also contended by Ms. Patel that the Tribunal while passing the impugned order has taken into consideration all the facts of the case and thereafter, has permitted the respondent No.7 to be transposed as revisionist and in that view of the matter, the petition is required to be dismissed.
13. Having considered the rival submissions and having gone through the materials on record, the Page 15 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER facts of the case are not in dispute. The respondent No.7 has entered into an assignment deed with the respondent No.4 Ashokbhai on 5.3.2012 by payment of Rs.31 lakhs. The Tribunal after considering the facts and materials on record has permitted the respondent No.7 to be transposed, as the original revisionist respondent No.4 Ashokbhai has preferred an application to withdraw the revision application. When it is not in dispute that respondent No.7 has entered into an assignment deed on 5.3.2012, the respondent No.7 would naturally step into the shoes of the original revisionist.
14. At this juncture, it would be germane to refer to provisions of Order 23, Rule 1A of the Code which reads thus:
"1A. When transposition of defendants as plaintiffs may be permitted. Where a suit is withdrawn or abandoned by a plaintiff under rule 1, and a defendant applies to be transposed as a plaintiff under rule 10 of Order 1, the Court shall, in considering such application, have due regard to the question whether the applicant has a substantial question to be decided as against any of the other defendants."
15. In view of the above provisions of the Code which are applicable to the proceeding before the Revenue Tribunal while deciding the revision application, the Tribunal has rightly applied Page 16 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER the same to the facts of the case permitting the respondent No.7 to be transposed as revisionist by the impugned order.
16. It is pertinent to note that the Tribunal earlier permitted the respondent No.4Ashokbhai to withdraw the revision application without considering the request of the respondent No.7 to be transposed in place of Ashokbhai respondent no.4 and respondent No.7 challenged such order by preferring Special Civil Application No. 2290/2015 which was allowed by this court vide order dated 26.09.2016 by quashing and setting aside the order passed by the Tribunal and remanded the matter back to the Tribunal to consider the application of the respondent No.7.
17. In such circumstances, the Tribunal cannot be said to have committed any error by passing the impugned order by considering the provisions of Order 1 Rule 10 (2) read with Order 23 Rule 1A. The Tribunal after giving an opportunity of hearing to all the parties, arrived at a conclusion that the rights of the respondent No.7 would be affected, if the application for withdrawal filed by the respondent No.4 is allowed and in that view of the matter, the Tribunal permitted the respondent No.7 to be transposed as revisionist. The order of the Tribunal is therefore, in accordance with law Page 17 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021 C/SCA/8506/2020 ORDER and there is no legal infirmity in the same so as to warrant interference by this Court while exercising extraordinary jurisdiction under Articles 226 & 227 of the Constitution of India.
18. The petition, therefore being devoid of any merit is hereby dismissed. Notice is discharged with no order as to costs.
(BHARGAV D. KARIA, J) RAGHUNATH R NAIR Page 18 of 18 Downloaded on : Thu Feb 25 09:09:51 IST 2021