Gujarat High Court
State Of Gujarat vs Deputy Collector (Lr) & on 20 March, 2013
Author: Harsha Devani
Bench: Harsha Devani
STATE OF GUJARAT....Petitioner(s)V/SDEPUTY COLLECTOR (LR) C/SCA/2614/2012 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 2614 of 2012 FOR APPROVAL AND SIGNATURE: HONOURABLE MS.JUSTICE HARSHA DEVANI ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================================ STATE OF GUJARAT....Petitioner(s) Versus DEPUTY COLLECTOR (LR) & 14....Respondent(s) ================================================================ Appearance: MS NISHA THAKORE, ASSTT. GOVT PLEADER for the Petitioner MR AJ PATEL for the respondents ================================================================ CORAM: HONOURABLE MS.JUSTICE HARSHA DEVANI Date : 20/03/2013 ORAL JUDGMENT
1. By this petition under Articles 226 and 227 of the Constitution of India, the petitioner State of Gujarat has challenged the order dated 9th April, 2010 passed by the Gujarat Revenue Tribunal, Ahmedabad in Revision Application No.TEN/BA/11/2009, whereby the revision preferred by the State against the order dated 29.06.2004 passed by the Deputy Collector in Tenancy- Appeal No.20/2004 has been rejected.
The facts of the case stated briefly are that the land bearing Survey No.336 of Village Chandlodiya, admeasuring Acres 0 14 Gunthas (hereinafter referred to as the subject land ) was owned by one Vallabhbhai Dhanjibhai Patel. Sometime in the year 1956-57, the name of one Manilal Kalidas came to be introduced as an ordinary tenant in respect of the subject land. It appears that in the year 1977, the Mamlatdar and Agricultural Land Tribunal (hereinafter referred to as the Mamlatdar and ALT), initiated proceedings under section 32-G of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as the Act ) by issuing notices to the landlord as well as Manilal Kalidas. In the said proceedings the statement of Manilal Kalidas came to be recorded on 6th July, 1977, whereby he had stated that the subject land was owned by Vallabhbhai Dhanjibhai Patel (the respondent No.7 herein) and that his name has been recorded as an ordinary tenant in the second rights column in the record of rights. However, in the past, he had never cultivated the land, nor was he presently cultivating the land. He has further stated that he is not aware as to under what circumstances, his name has been introduced as a tenant. That he has never cultivated the subject land and he does not desire to purchase the subject land. It appears that on the date of hearing the landlord was not present. The Mamlatdar and ALT, after examining the record of rights, observed that the same reflected that Manilal Kalidas was a registered tenant despite which Manilal Kalidas, in his deposition, has stated that he had never cultivated the subject land and was of the opinion that in view of the position as reflected in the record, his deposition could not be accepted. He, accordingly, by an order dated 3rd March, 1986, held Manilal Kalidas to be a deemed purchaser as he was a tenant on 1.4.1957. He further held that since the tenant was not desirous of purchasing the subject land, the sale had become ineffective and the subject land was, therefore, required to be disposed of under section 32-P of the Act.
The above order passed by the Mamlatdar and ALT came to be challenged by the landlord, viz. the respondent No.7-Vallabhbhai Dhanjibhai in Tenancy Appeal No.20 of 2004. Before the Deputy Collector, it was contended on behalf of the appellant therein that the Mamlatdar and ALT had not given him an opportunity of hearing and that despite the fact that the tenant had stated on oath that he had never cultivated the subject land, held him to be a deemed purchaser. The Deputy Collector, by an order dated 29.06.2004, allowed the appeal and set aside the order dated 03.03.1986 passed by the Mamlatdar. Against the said order, the petitioner filed a revision application before the Gujarat Revenue Tribunal, which by the impugned order dated 9th April, 2010, rejected the revision application and confirmed the order passed by the Deputy Collector, which has given rise to the present petition.
Ms. Nisha Thakore, learned Assistant Government Pleader vehemently assailed the impugned order as well as the order passed by the Deputy Collector, by submitting that both the authorities below had erred in entertaining the appeal on merits despite the fact that there was a considerable delay on the part of the respondent No.7 Vallabhbhai Dhanjibhai Patel in challenging the order passed by the Mamlatdar and ALT. It was emphatically argued that the Mamlatdar and ALT had passed the order on 3rd March, 1986, whereas the appeal had been preferred before the Deputy Collector on 17th March, 2004, that is, after a period of about sixteen years. Under the circumstances, the Deputy Collector was not justified in condoning the delay in filing the appeal. It was pointed out that pursuant to the order passed by the Mamlatdar and ALT, corresponding mutation entry also came to be made in the year 1996.
Referring to the impugned order passed by the Tribunal, Ms. Thakore pointed out that according to the Tribunal, though in view of the fact that the notices had been sent by Registered Post A.D., the same could be held to have been served, however, as the landlord has not been served with a notice through the Talati, there is reason to believe that the landlord was not informed about the proceedings in respect of the subject land as well as the order passed thereon. It was submitted that such findings recorded by the Tribunal are perverse, inasmuch as, they are contrary to the record of the case, which clearly reveals that the landlord had been duly served by Registered Post A.D. It was argued that the landlord, having chosen not to remain present before the Mamlatdar and ALT as well as not to appeal against the order passed by the Mamlatdar at the relevant time, the authorities below were not justified in condoning the delay and deciding the matter on merits. According to the learned Assistant Government Pleader, undue prejudice is caused to the State Government by way of loss of premium on account of the delay having been condoned. It was further submitted that the order passed by the Mamlatdar and ALT was based on the record of the case and was just, legal and proper and therefore, even on merits, there was no warrant for any intervention. Under the circumstances, the impugned orders passed by the Tribunal as well as by the Deputy Collector are required to be quashed and set aside, and the order passed by the Mamlatdar and ALT is required to be restored. In support of her submissions, Ms. Thakore placed reliance upon a decision of the Supreme Court in the case of Chairman-cum-Managing Director, Coal India Limited and others v. Ananta Saha and others, (2011) 5 SCC 142, for the proposition that if the show cause notice is sent by Registered Post, it can be presumed that the noticee received it.
Vehemently opposing the petition, Mr. A. J. Patel, learned counsel for the respondents No.8 to 14, who are subsequent purchasers of the subject land, supported the impugned orders, by submitting that both the authorities below have, after examining the record of the case, found that there was no due service of notice on the landlord. It was contended that when the Manilal Kalidas Patel, the so-called tenant had made a statement on oath before the Mamatdar and ALT that he had never cultivated the subject land, the Mamlatdar was not justified in going by the revenue record and holding him to be a deemed purchaser. In support of such submission, the learned counsel placed reliance upon the decision of the Bombay High Court in the case of Shri S. A. Rahim and others v. Shidu Laxman Ramoshi and others, 1999 (3) B.L.R. 483, for the proposition that the purchase can only be said to be ineffective in the case of a tenant, who satisfies the conditions laid down under section 32 and shows his inability to purchase the land. Reliance was also placed upon the decision of the Supreme Court in the case of Sita Ram Bhau Patil v. Ramchandra Nago Patil (dead) by Lrs and another, AIR 1977 SC 1712, for the proposition that there is no abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct. It was, accordingly, urged that the impugned orders passed by the Deputy Collector as well as the Tribunal are just, legal and proper, and do not warrant any interference by this court.
From the facts noted hereinabove, it is apparent that the name of Manilal Kalidas came to be introduced in the revenue record in respect of the subject land sometime in the year 1957-58. Sometime in 1977, that is, after a period of about twenty years, the Mamlatdar and ALT initiated proceedings under section 32G of the Act. In such proceedings, the landlord did not appear, whereas the tenant-Manilal Kalidas had appeared and his statement came to be recorded on 06.07.1977, wherein he has categorically stated that he had never cultivated the subject land, either in the past or in the present, and that he was not aware as to how his name has been reflected as a tenant in respect of the subject land. He has also stated that he had never cultivated the land and did not desire to purchase the same. Despite the aforesaid categorical statement made by the Manilal Kalidas, the Mamlatdar and ALT by placing reliance upon the revenue record, held him to be a deemed purchaser on the ground that he had been registered as a tenant on 01.04.1957.
In the backdrop of the facts noted hereinabove, examining the order of the Mamlatdar and ALT on merits, it is apparent that the same is erroneous, inasmuch as, despite the fact that Manilal Kalidas had appeared before him and had stated on oath that he had never cultivated the subject land and that he was not aware as to how his name was reflected in the record of rights, the Mamlatdar and ALT had chosen to place reliance upon the revenue record and had held that he (Manilal Kalidas) was a deemed purchaser. At this juncture, reference may be made to the decision of the Supreme Court in the case of Sita Ram Bhau Patil v.
Ramchandra Nago Patil (supra) wherein it has been observed as under :
20. With regard to the record of rights, counsel for the appellant said that presumption arises with regard to its correctness. There is no abstract principle that whatever will appear in the record of rights will be presumed to be correct when it is shown by evidence that the entries are not correct. Apart from the intrinsic evidence in the record of rights that they refer to facts which are untrue, it also appears that the record of rights have reference to the mutation entry that was made by the Circle Officer on 30th January, 1956. Counsel for the respondent rightly contended that no presumption could arise for two principal reasons. First, the oral evidence in this case nullified the entries in the record of rights as showing a state of affairs opposed to the real state of affairs and, second, no notice was ever given to the respondent with regard to mutation proceedings.
Therefore, the respondent is right in contending that no presumption can validly arise from the record of rights.
Thus, as held by the Supreme Court in the above decision, the oral evidence would nullify the entries in the record of rights as showing a state of affairs opposed to the real state of affairs. In the present case, though the revenue entries indicated that Manilal Kalidas was a tenant for the period referred to hereinabove, the oral evidence led by Manilal Kalidas nullified the entries in the record of rights as showing a state of affairs opposed to the real state of affairs namely that Manilal Kalidas was not never a tenant in respect of the subject land. Under the circumstances, the Mamlatdar was not justified in placing reliance upon the revenue entries as against the oral evidence led by Manilal Kalidas. As a natural corollary, when Manilal Kalidas was not a tenant, the question of determining the purchase price or the sale becoming ineffective because the tenant was not willing to purchase the subject land would not arise. Thus, the subject land would be available for disposal under section 32P of the Act, only if the condition precedent, namely that the sale has become ineffective is satisfied. In the aforesaid circumstances, when Manilal Kalidas was not a tenant, the question of proceeding further under section 32G of the Act and declaring the sale to be ineffective as he was not willing to purchase the subject land would not arise.
Insofar as the delay in preferring the appeal before the Deputy Collector is concerned, it is true that such order came to be challenged by the landlord after a delay of about sixteen years. However, it is by now well settled that when a statutory authority, being satisfied with the reasons for the delay, exercises discretion vested in it under law, by condoning the delay, the High Court in exercise of its jurisdiction under Article 226 will not review such order unless the order impugned is a perverse order or is passed in violation of the principles of natural justice. (See Commissioner of Trade Tax v. U.P. Paper Corpn. (P) Ltd., (2002) 9 SCC 585).
In N. Balaji v. Virendra Singh, (2004) 8 SCC 312, the Supreme Court has held that where the discretion had been exercised by the Central Registrar in the facts and circumstances of the case in condoning the delay, the exercise of the discretionary power can be interfered by the High Court only if the order passed is violative of some fundamental or basic principle of justice and fair play or suffers from any patent or flagrant error.
Examining the facts of the present case in the light of the principles propounded in the above decisions, a perusal of the order passed by the Deputy Collector shows that on behalf of the landlord it had been contended that he was personally cultivating the subject lands and that on the basis of the 7/12 extracts for the year 1956-57, the Mamlatdar and ALT after a period of about thirty years, had issued notice under section 32G of the Act and passed the order dated 03.03.1986 without hearing him. That upon coming to know of the passing of such order, he had challenged the same. It was also submitted that the Mamlatdar and ALT had not heard the appellant-landlord nor had notice been properly served upon him and as such he had no personal knowledge about the passing of the said order and as such the bar of limitation would not come in his way. It was also contended that the order of the Mamlatdar and ALT was a nullity and had been passed merely on the basis of the revenue record without taking into consideration the delay in issuing notice under section 32G of the Act, and that no prejudice is caused to the State Government on account of any delay caused in preferring the appeal. The heirs of deceased Manilal Kalidas had appeared before the Deputy Collector and had reiterated the stand taken by him before the Mamlatdar and had submitted that they had no objection if the delay is condoned and the appeal is decided on merits. The Deputy Collector has examined the merits of the case and has found that the Manilal Kalidas had stated before the Mamlatdar and ALT that he had never cultivated the subject lands and that his name was wrongly shown in the revenue record and that his heirs had also reiterated the same. Referring to the procedure which is required to be followed in proceedings under section 32Gof the Act, the Deputy Collector has observed that the Mamlatdar and ALT was firstly required to frame an issue as to whether or not the person concerned was a tenant as on 1.4.1957 and it is only thereafter that the question of holding that the sale has become ineffective would arise, whereas in the facts of the present case the person whose name is reflected in the revenue record has categorically stated that he is not aware as to how his name has been registered as a tenant and that he had never cultivated the said lands, hence there was no reason to hold that he was a tenant of the subject lands. Consequently the order holding that the sale had become ineffective was without authority of law. Relying upon a decision of this High Court wherein it has been held that when an order is a nullity, the bar of limitation would not be applicable, the Deputy Collector has condoned the delay and allowed the appeal.
As can be seen from the impugned order, the Tribunal has upon a perusal of the record of the case found that in the revenue record the name of the respondent No.7 Vallabhbhai Dhanjibhai is shown for the period 1951-52 to 1955-56 and from 1964-65 to 1993-94. Thus the order passed by the Mamlatdar and ALT in the year 1986 has never been implemented. Had the said order been implemented the landlord would have become aware of such order. The Tribunal has taken note of the fact that the landlord has submitted that the order passed by the Mamlatdar and ALT was not communicated to him. In the proceedings under section 32G of the Act, the presence of the landlord has not been recorded. When the landlord was himself cultivating the land in the year 1986, it cannot be believed that he had remained absent against his own interests. That notice has been considered to have been served on the basis of the registered post, but notice has not been served on the landlord through the Talati. Hence there is reason to believe that the landlord was not informed about the proceedings as well as the order passed by the Mamlatdar. Thus, the Tribunal has given sufficient and cogent reasons for holding that the delay caused in preferring the appeal before the Deputy Collector had been rightly condoned. From the findings recorded by the Tribunal, it is apparent that no prejudice has been caused to the petitioner State on account of the delay caused in preferring the appeal, inasmuch as, the status of the subject land remained the same, namely, the landlord continued to hold the same and his name continued to be reflected in the revenue record.
In the above backdrop, it cannot be said that the orders passed by the Deputy Collector as well as by the Tribunal, are in any manner perverse or passed in breach of the principles of natural justice or are violative of some fundamental principle of justice and fair play or suffer from any patent and flagrant error. Under the circumstances, no infirmity can be found in the impugned order of the Tribunal in holding that the Deputy Collector had rightly condoned the delay and upholding the order passed by the Deputy Collector on merits.
At this stage it may be noted that the learned Assistant Government Pleader had vehemently contended that grave prejudice had been caused to the State Government in view of the fact that if the order passed by the Mamlatdar and ALT were to be sustained, the State Government would be in a position to collect the premium in respect of the sale of the subject land as the same would bear the characteristic of new tenure land. In response to the said contention, Mr. A. J. Patel, learned counsel for the contesting respondents submitted that his clients are ready and willing to pay the premium in respect of the subject land as obtaining today. Under the circumstances, even the said contention regarding prejudice on account of loss of premium no longer survives.
For the foregoing reasons, the petition fails and is, accordingly, dismissed.
(HARSHA DEVANI, J.) parmar* Page 12 of 12