Gujarat High Court
Punambhai Hirabhai Thakore & vs Sabarmati Ashram Gaushala Trust & 5 on 2 September, 2015
Author: R.D.Kothari
Bench: R.D.Kothari
C/SA/177/2015 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 177 of 2015
With
CIVIL APPLICATION NO. 9405 of 2015
In
SECOND APPEAL NO. 177 of 2015
=========================================================
PUNAMBHAI HIRABHAI THAKORE & 1....Appellant(s) Versus SABARMATI ASHRAM GAUSHALA TRUST & 5....Respondent(s) ========================================================= Appearance:
MR VM DHOTRE, ADVOCATE for the Appellant(s) No. 1 2 DELETED for the Respondent(s) No. 3 , 6 MR DC DAVE, SR. ADVOCATE with MR JIGAR M PATEL, ADVOCATE for the Respondent(s) No. 1 ========================================================= CORAM: HONOURABLE MR.JUSTICE R.D.KOTHARI Date : 02/09/2015 ORAL COMMON ORDER
1. The appellants - tenants under the Bombay Tenancy and Agricultural Lands Act, 1948 being aggrieved by the dismissal of appeal i.e. Regular Civil Appeal No. 9 of 2007 has filed the present appeal.
2. At the time of initial hearing, the question arose whether the respondent - trust is in fact exempted under Section 88B of the Bombay Tenancy and Agricultural Lands Act or not ? The Court has asked the respondent - trust to produce a copy of the exemption certificate. Time was granted by the Court to produce Page 1 of 5 HC-NIC Page 1 of 5 Created On Mon Sep 07 01:10:46 IST 2015 C/SA/177/2015 ORDER a copy of the exemption certificate on the next date of hearing.
The learned advocate for the respondent - trust has shown the exemption certificate issued by the authority.
3. The learned advocate for the appellants objected to this certificate urging that the respondent - trust should file and produce the same along with the affidavit. This submission was not possible to accept since at the instance of the Court, the respondent - trust has produced the said certificate.
3.1. Today, the learned advocate for the appellants has made detailed submissions. The learned advocate for the appellants submitted that the certificate issued is doubtful as it is a xerox copy and it is not a xerox copy of the original. It does not bear any signature or date. Therefore, the certificate is not in the nature of inspiring confidence. Further, it was submitted that there is distinction in the name of the respondent - trust. In other words, the certificate issued to the trust, which bears another name and the respondent before this Court is different trust. Further the purpose for which the certificate is issued is only for education purpose and, therefore, the respondent - trust cannot rely upon the same herein. The principal submission of the learned advocate for the appellants is whether the appellants is monthly tenant or yearly tenant is to be decided exclusively by the revenue authority i.e. the Mamlatdar under the Bombay Tenancy and Agricultural Lands Act. In this regard, learned advocate for the appellants has relied upon the decision of Apex Court in the case of Gundaji Satwaji Shinde v. Ramchandra Bhikaji Joshi reported in AIR 1979 SC 653.
4. On the other hand, learned senior advocate Mr. Dave has Page 2 of 5 HC-NIC Page 2 of 5 Created On Mon Sep 07 01:10:46 IST 2015 C/SA/177/2015 ORDER submitted that the present appellants have moved the revenue authority as early as in the year 1979 to declare him as a deemed purchaser on the ground that they are tenants. The appellants application came to be rejected on the ground that the respondent - trust is exempted under the Act. The said order of the Mamlatdar of rejecting the appellants application came to be final. The said order was not carried further by the appellants. Thereafter, the present respondents have moved the revenue authority for eviction of the appellants. The respondents application came to be rejected by the Mamlatdar holding that since the respondent - trust is exempted, only the Civil Court has jurisdiction. The order of the Mamlatdar was carried before the Collector. The Collector rejected the appellants application on the same ground and thereafter the present respondent has filed Civil Suit being Regular Civil Suit No. 132 of 1993. Therein, the decree was passed in favour of the present respondents. The said order was carried in appeal and the appellate Court has confirmed the order of the learned trial Court and has dismissed the appeal.
5. In the circumstances of the case, suspicion and doubt expressed by the learned advocate for the appellants about the genuineness of the certificate, this Court at this stage in this proceeding would not consider. Prima facie, objections in this regard are of technical nature. The principal submission of the learned advocate for the appellants is whether the appellants are monthly tenant or yearly tenant is to be decided by the revenue authority namely the Mamlatdar and though this question was raised before the lower Court, the Courts below instead of referring the suit to the Mamlatdar, has proceeded to decide the suit and, therefore, there is apparent illegality committed by Page 3 of 5 HC-NIC Page 3 of 5 Created On Mon Sep 07 01:10:46 IST 2015 C/SA/177/2015 ORDER both the Courts. The learned advocate has drawn attention of the Court to the decision of the Apex Court in the case of Gundaji Satwaji Shinde (supra), more particularly paragraph nos. 8, 9 and 18.
6. It is not possible to agree with the submissions of the learned advocate for the appellants. If the respondent - trust is exempted under the Act, there is no question of deciding the nature of tenancy of the appellants. Secondly, learned senior advocate Mr. Dave has drawn attention that this Court in the matter of Sabarmati Ashram Trust v. Bhailalbhai Nanabhai i.e. in the case of the the present appellants itself has considered Section 85 of the Bombay Tenancy and Agricultural Lands Act and has held that the Civil Court is competent to decide the issue. The order of this Court was carried before Apex Court by the appellants and Special Leave to Appeal (Civil) No. 6203 of 2014 came to be rejected by the Apex Court.
7. In view of the above circumstances of the case, the question raised namely the appellants are the monthly tenant or yearly tenant ought to be decided by the Mamlatdar and non deciding of that by that authority vitiate the proceeding cannot be accepted.
8. There is no reason to interfere with the concurrent findings of two Courts below. Hence, the second appeal is summarily rejected.
9. At the request of the learned advocate for the appellants, it is clarified that it would be open for the appellants to take appropriate action in accordance with law, as available to the Page 4 of 5 HC-NIC Page 4 of 5 Created On Mon Sep 07 01:10:46 IST 2015 C/SA/177/2015 ORDER appellants.
9.1. At this stage, the learned advocate for the appellants prays for operation of this order for a period of six weeks. The learned senior advocate Mr. Dave seriously objects to this prayer and submits that in the circumstance, the appellants does not deserve stay of operation of the order of this Court. In the facts and circumstances of the case, the operation of this order is stayed for a period of four weeks from today. The parties shall maintain status quo till then.
10. In view of the order passed in the appeal, this civil application will not survive and the same is dismissed.
(R.D.KOTHARI, J.) /phalguni/ Page 5 of 5 HC-NIC Page 5 of 5 Created On Mon Sep 07 01:10:46 IST 2015