Gujarat High Court
Saktaji vs State on 12 July, 2011
Author: S.R.Brahmbhatt
Bench: S.R.Brahmbhatt
Gujarat High Court Case Information System
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SCA/8338/2011 16/ 16 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 8338 of 2011
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SAKTAJI
RAJAJI ODD & 3 - Petitioners
Versus
STATE
OF GUJARAT & 1 - Respondents
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Appearance :
MR
HARDIK C RAWAL for Petitioners : 1 - 2, 2.2.1, 2.2.2, 2.2.3, 2.2.4,
2.2.5, 2.2.6,2.2.7 - 4.MRS MH RAWAL for Petitioners : 1 - 2, 2.2.1,
2.2.2, 2.2.3, 2.2.4, 2.2.5, 2.2.6,2.2.7 - 4.
MS. MINI NAIR, LD.
AGP for Respondent: 1,
None for Respondents : 2,2.2.1
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CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 12/07/2011
ORAL
ORDER
Heard learned advocate Shri Hardik Rawal for the petitioners and Ms. Mini Nair, learned AGP for respondent State on advance copy.
The petitioners, the revision applicants in Revision Application No. TBN/BA/194/1992 have approached this Court challenging the order dated 6/3/2009 dismissing the revision application and confirming the order assailed in the revision application.
The petitioners have in this petition under Article 226 & 227 of the Constitution have made the following prayers:
" (B) be pleased to issue a writ of certiorari or any other appropriate writ, order or direction by quashing and setting aside the following impugned judgment / orders:
1.
Order dated 6-3-2009 passed by Gujarat Revenue Tribunal, Ahmedabad in Revision Application no. TEN.BA.194/1992 by virtue of which the Revision Application is dismissed and orders of both lower Authorities / Courts are confirmed at Annexure-B to this petition.
2. Order dated 14-2-1992 passed by Deputy Collector (L.R.), Appeals, Ahmedabad in Tenancy Appeal No. 91of 1991 at Annexure-C to this petition.
3. Order dated 7-12-1987 passed by the Mamlatdar & ALT, city in Ganot / Tenancy Case no. 63 of 1987 under Sec. 84 (C) of the Tenancy Act at Annexure-D to this petition."
The facts of the petitioners as narrated in the memo of the petition goes to show that this petitioners have preferred Special Civil Application No. 13644 of 2010 with identical challenges but the same was withdrawn with a liberty to file fresh petition on the same subject matter. Said petition was thus permitted to be withdrawn by this Court (Coram: M.R. Shah) vide order dated 1/3/2011, wherein it is observed that the permission to withdraw the petition was granted with a liberty to file fresh petition on the same subject matter with correct documents and annexures.
(emphasis supplied) The petitioners have averred in the memo of the petition that the controversy pertains to the land bearing Survey No. 307/3 admeasuring 0-70 gunthas situated at Taluka Thaltej, Village Daskroi. The present petitioners purchased the aforesaid land by registered sale deed dated 25/1/1980. The revenue entry to this effect came to be mutated on 8/6/1980 being Revenue Entry No. 5496. The petitioners have averred that father of the petitioners was a born agriculturist and had purchased adjoining land being Survey No. 307/4 by registered sale deed bearing No. 4820 dated 26/5/1965. The entry to this effect has been made in the revenue record. Petitioners father passed away in 1974 and the petitioners names were entered as legal heirs on 16/7/1979 vide Entry No. 5382 and the same was certified. Thus the petitioners and the father of the petitioners were in possession as agriculturists were entitled to purchase the agricultural land. The concerned authority to the utter shock & surprise of the petitioners, as mentioned in the memo of the petition, on 7/12/1987 passed an order under section 84-C of the Bombay Tenancy & Agricultural Lands Act 1948 cancelling the same and confiscating the land into the State. Petitioners being aggrieved there from filed Tenancy Appeal No. 91 of 1991. Dy. Collector, L.R. (Appeals) by invoking section 74 of the Bombay Tenancy & Agricultural Lands Act 1948 (herein after referred to as "Tenancy Act" for brevity), rejected the same, confirming the order passed by Mamlatdar & ALT dated 7/12/1987. This order of rejection of appeal dated 14/2/1992 was assailed in Revision Application No. 194 of 1992 before Gujarat Revenue Tribunal, who has also dismissed the revision confirming the orders of the two authorities vide its order dated 6/3/2009, which was assailed in the earlier petition being Special Civil Application No. 13644 of 2010, in which, though notice was issued earlier by this Court, as there were some errors (typographical) in the annexures, the Court permitted withdrawal of the same, with a liberty to file fresh petition. The petitioners also averred in para-3 of the petition that the land in question is still in possession of the petitioners and the petitioners have already filed civil suit against the new allottee in the Civil Court, Ahmedabad (Rural) being Civil Suit No. 589 of 2005.
Learned advocate appearing for the petitioners contended that the order impugned is passed without appreciating the legal aspects going to the root of the matter. The order of the revisional authority dated 6/3/2009 and the order of the appellate authority dated 14/2/1992 as well as the order of Mamlatdar & ALT dated 7/12/1987 are therefore required to be quashed and set aside.
Learned advocate appearing for the petitioners submitted that the order of Mamlatdar & ALT dated 7/12/1987 was passed on suo motu proceedings initiated after a gap of six years which was impermissible in view of the catena of decisions of this Court a well as of the Apex Court. In support of his submission, learned advocate relying upon the decision of this Court in case of Patel Rameshbhai Ramabhai & Anr. Vs. State of Gujarat & Anr., reported in 2008 (3) GLR pg. 2049, and in case of Gujarat Khet Kamdar Union Vs. State of Gujarat & Ors, reported in 1999 (3) GLR pg. 2044, contended that delay of six years in initiating suo motu proceedings was impermissible and hence the same ought to have been appreciated by the concerned authorities and the order of Mamlatdar & ALT should have been quashed and set aside.
Learned advocate appearing for the petitioners submitted that the Mamlatdar & ALT did not comply with the provision of section 84-C (1) and 84-C (2) nor did he comply with section 84-B of the Tenancy Act in as mush as the plain reading of the order is sufficient to indicate that without there being appropriate inquiry the order impugned came to be passed. Non compliance of the mandatory provision would render the order dated 7/12/1987 illegal, and hence the same could not have been enforced in any manner.
Learned advocate appearing for the petitioners submitted that the entire Act, viz. Bombay Tenancy & Agricultural Lands Act, 1948 is inuring for poor agriculturists and therefore lack of knowledge on their part or their ignorance cannot be held against them for defeating their rights - qua agricultural land.
Learned AGP Ms. Mini Nair appearing on advance copy, relying upon two decisions of this Court, in case of Govindbhai Somabhai Nai & Ors. Vs. State of Gujarat & Ors, reported in 1987 (2) GLR 760, and in case of Uma Small Scale Industrial Co. Op. Society Ltd Vs. Collector, Surat & Ors., reported in 2002 (1) GLR pg. 226, submitted that the ratio laid down by this Court in aforesaid two decisions would squarely be applicable to the facts of the present case also, as the plain reading of the order of Mamlatdar & ALT as well that of Dy. Collector in appeal would clearly show that the petitioners could not prove that they were agriculturists so as to save their transaction from section 63 of the Act.
This Court has heard learned advocate for the petitioners as well as learned AGP. Before adverting to the rival contentions, it would be most appropriate to point out certain indisputable aspects that have emerged there from, namely :-
The petitioners have approached this Court under Article 226 & and also under Article 227 of the Constitution of India. Learned advocate for the petitioners has submitted that both the Articles are required to be invoked as the orders impugned were per se illegal and hence it also amounted to error apparent on the face of the record, therefore the petition was filed under Article 226 as well as under
Article 227 of the Constitution of India.
The prayer clause indicate that the petitioners sought quashing of all the orders in this petition.
The petitioners have made averments in the memo of the petition at two places indicating that on account of typographical error in the annexure the earlier petition being Special Civil Application No. 13644 of 2010 was required to be withdrawn. However while seeking permission for withdrawal thereof specific liberty was sought for filing fresh petition, which was granted as could be seen from order dated 1/3/2011.
Petitioners in the petition has not joined any other authority whose orders are assailed, except the order of the Secretary, Revenue Department, Sachivalaya, Gandhinagar and the Respondent no.2 who happens to be private respondent. In other words the petitioners have joined the State through the Secretary, Revenue Department only. It may not be forgotten at this stage that the petitioners have filed this petition under Article 226 & 227 of the Constitution both and has prayed for quashing of all the orders which are narrated herein above.
Petitioners have made averments in para-3.2 on page-6 as under:
".....
The petitioners submit that the land in question is still in possession of the petitioners and petitioners have already filed a Civil Suit against the new allottee in the Civil Court, Ahmedabad (Rural) bearing Civil Suit No. 589 of 2005. Hence the present petition."
This averment is made, which according to the learned advocate to support his own submission. But except this averment the entire petition is conspicuously silent qua "new allottee".
The order of Mamlatdar & ALT in Tenancy Case of No. Ganot 84-C/63/87 is produced on page-25 in the compilation of the petition. Said order contains following:-
(a) The notices were issued to the parties and the first hearing was slated on 8/1/1986.
(b) It has also been mentioned in the said order that proper opportunities were granted for verifying the proposal of Mamlatdar in respect of illegal transaction.
(c) None of the parties have remain present and none has produced or attempted to produce any documentary evidence.
(d) On 7/12/1987 the matter was slated and as no one remain present the order was passed.
(e) The land in question is said to have been transferred on account of the entry which has also been certified.
(f) There appeared to be no documentary evidence of any permission under section 63 before the transfer was effected.
(g) There exist no evidence indicating that the purchaser happens to be an agriculturist.
(h) No consent for restoring position is available. Hence the order for confiscating the land was passed.
The said order is passed on 7/12/1987.
The petitioners, and their mother, who is not a party in this petition and who is not one of the purchaser of the land in question, preferred Tenancy Appeal No. 91/91 before the Dy. Collector under section 74 of the Tenancy Act. In that appeal Mamlatdar & ALT is joined as Respondent no.1 and original land owner is joined as Respondent No.2. In that appeal the concerned authority has recorded in the order dated 14/2/1992 as under.
(a) The reason for condonation of delay have been shown in para-5.
(b) Intimation of the order qua Melaji Raja and Sakraji Raja were given to someone.
(c) Said authority has further observed that it was argued on behalf of the defendant / original owner that the original owner had passed away seven years ago and the petitioner, i.e. purchaser had given notice of intimation of order on 9/11/1987.
(d) Applicants were informed by registered post of the order which came back with an endorsement "refused".
(e) The authority has further recorded that this order is in fact said to have been served on 7/12/1987 upon the applicant.
It is required to be noted at this stage that the purchase of land in question is said to be on 25/6/1984, though it is argued that it was in the year 1980. But, even in Mamlatdar & ALT order also said date is reflected.
(f) The appellate authority has further recorded that looking to page-17 of the record of Mamlatdar & ALT it becomes clear that notice dated 7/12/1987 was issued and the said notice on behalf of Saktaji Rajaji Odd and for Rupaji Rajaji Odd were accepted by said Rupaji Rajaji Odd (Said Rupaji Odd is petitioner no.4 herein above).
(g) The appellate authority has further observed that said Rajaji Rupaji Odd is one of the purchaser of the land in question. The Court has said that thus there was knowledge and information and notice to all. Despite the knowledge and notice, parties have not cared to remain present.
(h) The appellate authority has also recorded that the record indicates that the intimation of the order was taken out and it was sent by registered Post A.D., to Saktaji Rajaji Odd (who happens to be petitioner no.1 in this petition) and whose thump impression is on the record on page-25. The envelop sent to Melabhai Odd was returned with the endorsement "not found". Intimation sent to Gandabhai Rajabhai and Rupabhai Rajabhai are on page-35 and 37 of the record.
(i)The appellate authority has further recorded in its judgment & order that even the land bearing survey no. 307/4, which is sought to be made basis for intimating that the petitioners were agriculturists, whereas the land in question was purchased by them and the revenue entries contain noting to the effect that it was contrary to the fragmentation law and it was originally given for 'Garkhed'. The authority further recorded in its finding that land bearing survey no. 307/4 was also was purchased by them. The authority has further observed that the land in question had already been transferred to one cooperative society known as Saraswati Smruti Sahkari Mandali (that order of allotment is not assailed).
(j) There is a finding that there is breach of section 63 of the Act and the appeal was rejected vide order dated 14/2/1992.
The revisional authority in its order dated 6/3/2009 has observed as under.
(a) The land in question came to be sold to the present applicants and entry No. 5496 came to be mutated in village form no.6. Doubts were expressed whether the applicants were agriculturists within the meaning of section 63 of the Act. Thus there was basis for raising inquiry. (Once again it is required to be noted that the purchase date 25/7/1984 is shown in this order also).
(b) The revision authority in para-6 has observed that "Shri Shah could not say anything about the basis of his purchase of land bearing S.No. 307/4. This point has also been touched by the learned Deputy Collector in his order though reasoning of dismissal of the appeal before him is different. If the possession of S.No. 307/4 itself is not clean, that cannot help the applicants claiming status as agriculturists in respect of the suit land."
(c) The revisional authority has observed as under with regard to service of notice of hearing.
"Their absence has been dealt with at length by the Deputy Collector where he has clearly shown that the notice of hearing had been served upon the applicants, yet they have remained absent consistently."
The revisional authority has further observed that so far as the issue of notice under section 84-C beyond the period of one year is concerned, the principle that this issue cannot be raised in cases where the very basis is unlawful has been well settled.
(d) The revisional authority has further observed with regard to allotment of the said land to a society as under:
"It is also a fact that not only the land had been forfeited but it has also been disposed of in favour of a co-operative Society before the appeal was filed. Shri Shah, Learned Advocate for the applicants, though tried to argue out that the disposal of in favour of the society was not as per rules, yet, however, the disposal has not been challenged by anybody till now. The applicants had the alternative of joining the society as a party and, apart from challenging the order U/s. 84C, they could also have challenged the disposal of the suit land. They cannot now say that they were not aware of the order regarding disposal of the suit land. They have themselves admitted this fact in their appeal memo before the Deputy Collector. I, therefore, see nothing wrong in the orders of both the Lower Courts below."
This Court noticed on page-36 of the compilation that the appellants in the memo of the appeal, viz. Present petitioners with their mother, the purchasers of the land in question have all along stated that the land bearing Survey No. 307/4 was purchased by their predecessors as they were interested in agriculture. Now, in fact the document of registered sale deed placed on record indicate that the land in question was not purchased by the father or appellants of the appeal. This discrepancy is sought to be explained by learned advocate orally without any submission or averment in the memo of the petition that it was bonafide mistake of narration and the mistake is in fact not in any way advantageous to the petitioners, therefore this explanation is tendered.
Against the aforesaid backdrop of factual indisputable aspects, question arises as to whether this Court would exercise its extraordinary jurisdiction in favour of the present petitioners, which would result into setting aside all the orders in case if the petition is accepted, but not the order under which the cooperative society about which there is no averment except the averment in para-3 is likely to be affected.
The petitioners have chosen not to make any averment except the averment quoted herein above so far as the new allottee of the land in question is concerned. The submission on behalf of the petitioners that the order made under section 84-C itself being illegal the petitioners were not under duty to join the society, i.e. new allottee in any proceedings. The society's allotment is subject matter of separate suit about which the averments are made in para-3 of the petition. In fact as the record show the petitioners were aware about the allotment of this land to the society as in the memo of the appeal itself this facts have surfaced. The order of allotment is much prior to filing of the appeal as submitted by learned AGP for the State. When the land is already allotted in favour of a co-operative society and when the petitioner has filed civil suit, in my view the contention with regard to non requirement of society being joined as party herein being misconceived, the petition deserves to be rejected.
The petition is required to be otherwise also dismissed on the other grounds which are set out as under:
(a) The petitioners have by way of this petition assailed the order of 1987 and that order which has resulted into land being transferred to a cooperative society and when the society is not joined as party in any proceeding wherever the present petition arise, said petition would not be maintainable.
(b) The provision of Article 226 and for that matter Article 227 are so clear as to prevent this Court from exercising its discretion in favour of the petitioners, who are suffering from various infirmities narrated herein above. But non joinder of the society being not accepted in the order of Mamlatdar & ALT and the findings recorded by Dy. Collector thereof and confirmed by the revisional authority, cannot be subject matter of challenge without producing cogent evidence, which would be so clear as to avoid the plea of disputed question of facts. In the instant case on the contrary the clear finding of three authorities against the petitioners and the finding of Dy. Collector with regard to service of notice would dissuade this Court from exercising its jurisdiction in favour of present petitioners.
This brings this Court to deal with the submission with regard to delay. The decisions cited at the Bar by learned AGP reported in 1987 (2) GLR pg. 760 and 2002(1) GLR pg. 226 would go to show that patent illegality if any cannot be cured. It is otherwise also not permissible in eye of law that those who have done wrong can be permitted to be taken advantage of their own wrong.
In view of the aforesaid discussions, this Court is of the view that the petition is required to be dismissed and is accordingly dismissed. However there shall be no order as to costs.
[ S.R. BRAHMBHATT, J ] /vgn Top