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Gujarat High Court

Lh Of Harshadbhai Nathabhai vs State Of Gujarat on 11 April, 2022

Author: Nirzar S. Desai

Bench: Nirzar S. Desai

     C/SCA/7391/2021                             ORDER DATED: 11/04/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 7391 of 2021

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                       LH OF HARSHADBHAI NATHABHAI
                                   Versus
                             STATE OF GUJARAT

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Appearance:
DHRUVIK K PATEL(7769) for the Petitioner(s) No.
1,1.1,1.2,1.3,1.4,2,3,4,4.1,4.2,5,6
MR NV GANDHI(1693) for the Respondent(s) No. 7
MR NIKUNJ KANARA AGP for the Respondent(s) No. 1,2,3,4
NOTICE UNSERVED for the Respondent(s) No. 5
UNSERVED EXPIRED (N) for the Respondent(s) No. 6,8
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                             Date : 11/04/2022

                              ORAL ORDER

1. By way of this petition, the petitioner has prayed for quashing and setting aside the order dated 30.12.2020 passed by the Secretary, Revenue Department (Appeals), Ahmedabad in MVV / Tenant / GDHAN / 5 of 2019.

2. Heard learned advocate Mr.Dhruvik Patel for the petitioners, learned advocate Ms.Richa Shah for the Respondent No.7 and learned Assistant Government Pleader Mr.Nikunj Kanara for the respondent - State.

3.1 It is the case of the petitioner that both the lands bearing old survey No.55 / 2 [New Block No.76] owned by Nathabhai Punjabhai Bhangi, land bearing old survey No.60 / 1 [New Block No.83] owned by Methabhai Bhangi situated at Pratiya Taluka, Mouje Gandhinagar. It is the Page 1 of 9 Downloaded on : Tue Apr 12 21:13:54 IST 2022 C/SCA/7391/2021 ORDER DATED: 11/04/2022 case of the petitioners that Nathabhai Pujabhai got tenancy rights from the original owner of both the aforesaid lands. The third land bearing old survey No.60 / 2 [New Block No.84] owned by Pujabhai Amthabhai and after his death, name of his legal heir Nathabhai Pujabhai was also entered in the revenue record. The fourth parcel of land i.e. old survey No.66 [New Block No.91] was occupied by Nathabhai Pujabhai and in a 5th parcel of land also i.e. the land bearing old survey Nos.63 and 64 [New Block No.87] name of Nathabhai Pujabhai was mutated in revenue record as legal heirs.

3.2 Present petitioners are the legal heirs of deceased Nathabhai Punjabhai. All these five parcels of lands were decided to be sold by forefathers of the petitioners to one Amarsinh Magansinh. However, since there were some breach in respect of some of the conditions to the agreement-to-sale, Tenancy Case No.5870 of 1988 was initiated by the Mamlatdar & ALT. Vide order dated 23.02.1989, the Mamlatdar & ALT passed an order directing the party to restore the original position of land in question within a period of 90 days and if not done within a period of 90 days, then Mamlatdar & ALT ordered 84(c)(4) of the Gujarat Tenancy and Agricultural Lands Act, 1948 ('the Tenancy Act', for short) to take place.

3.3 The proposed purchaser of the land in question viz. Amarsinh Magansinh challenged the aforesaid order Page 2 of 9 Downloaded on : Tue Apr 12 21:13:54 IST 2022 C/SCA/7391/2021 ORDER DATED: 11/04/2022 before the Deputy Collector (Land Reforms) by way of appeal being Tenancy Appeal No.28 of 1996 which was rejected by Deputy Collector vide order dated 28.08.1997. The said order was challenged before the Gujarat Revenue Tribunal by way of Revision Application being No. TEN / BA / 429 of 1998 which also was rejected vide order dated 02.09.1999.

3.4 The order dated 02.09.1999 passed by the Gujarat Revenue Tribunal was subject matter before this Court by way of Special Civil Application No.1918 of 2000 and the said petition also rejected vide order dated 16.02.2001.

3.5 Pursuant to the rejection vide order dated 16.02.2001, the Mamlatdar & ALT took over the possession of the property in question and the proceedings under Section 84(c) of 'the Tenancy Act' were ordered to be initiated. Pursuant to the aforesaid instructions, a public notice, as per Rule 21(1) of the and 'Tenancy Rules, 1956' were issued on 26.12.2003. Pursuant to the aforesaid land, certain civil litigations before civil courts were also going on. However, those litigations attained finality only in the year 2011 and thereafter proceedings under Section 84(c)(4) of 'the Tenancy Act' were initiated and at that time the Respondent Nos.5 to 8 also submitted an application claiming their rights over the land as per priority list and ultimately land was allotted in their favour as claimed to be belonging to back-ward class.

Page 3 of 9 Downloaded on : Tue Apr 12 21:13:54 IST 2022

C/SCA/7391/2021 ORDER DATED: 11/04/2022 3.6 Ultimately, Mamlatdar & ALT, Gandhinagar vide order dated 28.03.2011 granted the land in question with restriction under Section 43 of 'the Tenancy Act' to the Respondents No.5 to 8 in exercise of powers under Section 84(c) (4) of 'the Tenancy Act' whereas the present petitioner also claimed that as per priority list they are entitled to get the land and, therefore, they challenged the order dated 28.03.2011 before the Deputy Collector (Land Reforms), Gandhinagar under Section 74 by way of preferring appeal being Tenancy Appeal SR No.14 of 2019. The Deputy Collector (Land Reforms), Gandhinagar rejected the appeal preferred by the present petitioner vide order dated 25.06.2019. However, the Deputy Collector (Land Reforms), in operative part of the order, stated that the appeal preferred by the petitioner is barred by res judicata and, therefore, the same is filed. However, the ultimate effect of that order would amount to rejection and, therefore, it is treated as rejected.

3.7 The petitioner challenged the aforesaid order passed by the Deputy Collector (Land Reforms), Gandhinagar before the Special Secretary (Revenue Department) by preferring Revision Application No. MVV / Ganot / GADHAN / 5 of 2019 which was also rejected by the Secretary, Revenue Department vide order dated 30.12.2020 which is subject matter of challenge before this Court.

3.8 In between, as per the record produced by the Page 4 of 9 Downloaded on : Tue Apr 12 21:13:54 IST 2022 C/SCA/7391/2021 ORDER DATED: 11/04/2022 petitioner, in the meantime, Amarsinh Magansinh also challenged the order dated 28.03.2011 passed by the Deputy Collector (Land Reforms) by way of preferring appeal before the Collector. Vide the order dated 08.10.2012, the order passed by the Deputy Collector was challenged vide Revision Application No.2 of 2012 before the Gujarat Revenue Tribunal and the Gujarat Revenue Tribunal also rejected his application vide order dated 07.05.2014.

3.9 All these three orders were challenged by Amarsinh Magansinh by way of Special Civil Application No.7912 of 2014. However, the aforesaid petition was dismissed by coordinate Bench of this Court vide order dated 27.11.2015 and even that order was carried in appeal being Letters Patent Appeal No.16 of 2016 which also came to be dismissed vide order dated 15.02.2016.

3.10 However, according to learned advocate Mr.Patel the petitioner was not a party to those proceedings and, therefore, petitioner had no occasion to put forward his case before this Court.

3.11 Learned advocate Mr.Patel submitted that the order passed by the Deputy Collector was an order under Section 74 of 'the Tenancy Act', however, because of some incorrect advice, the present petitioner challenged the same before the Special Secretary (Revenue Department) by filing Revision Application which was Page 5 of 9 Downloaded on : Tue Apr 12 21:13:54 IST 2022 C/SCA/7391/2021 ORDER DATED: 11/04/2022 ultimately deleted from the register by the learned Special Secretary (Revenue Department) vide order dated 30.12.2020.

3.12 Learned advocate Mr.Patel submitted that even if the petitioner has invoked wrong jurisdiction, because of some incorrect advice, it was duty of the Special Secretary (Revenue Department) not to exercise jurisdiction against the order passed under Section 74 of 'the Tenancy Act' and the authority could have relegated the petitioner to Gujarat Revenue Tribunal without exercising its jurisdiction. He further submitted that while jurisdiction not vested in the State Government, by exercising the same, the Special Secretary (Revenue Department) have committed an error and, therefore, the impugned order requires to be quashed and set aside and the petitioner may be permitted to approach the Gujarat Revenue Tribunal to challenge the order dated 25.06.2019 passed by the Deputy Collector (Land Reforms) in Tenancy Appeal No.14 of 2019.

4. Learned advocate Ms.Richa Shah for the private respondents submitted that they are bona fide purchasers of the land in question and they have already purchased the land as they were found to be in ahead of the present petitioner in priority list and ultimately the land in question was purchased by paying necessary consideration as per the prevailing policy of the State Government and, therefore, present petition requires to Page 6 of 9 Downloaded on : Tue Apr 12 21:13:54 IST 2022 C/SCA/7391/2021 ORDER DATED: 11/04/2022 be dismissed as they were in possession of the land since the year 2011.

5.1 Learned Assistant Government Pleader Mr.Kanara drew attention of this Court to the affidavit-in-reply filed by Respondent No.1 and drew attention of the averments made in paras:6 and 7 of the reply which read as under:

"6. It is submitted that the petitioner has challenged the order passed by the Mamlatdar and ALT, Gandhinagar dated 28/03/2011 whereby, the subject land came to be disposed of as per the provisions of Section 84(C)(4) of the Gujarat Tenancy and Agricultural Lands Act, 1948. It is also submitted that although the case title depicts that it is a case under 32 P viz. Ganot Case / 32 - P.6 / 11 but from the order it transpires that the order has been passed under 84(C)(4) of the Tenancy Act.

7. It is submitted that the principal order being passed under Section 84(C)(4) of the Gujarat Tenancy and Agricultural Lands Act, 1948 the appropriate forum shall be Gujarat Revenue Tribunal and not Special Secretary Revenue Department. To substantiate the said aspect, the deponent craves to rely upon the rules of business as notified by the state government which clearly demarcates appellate powers to be exercised by both the authorities. It is also submitted that the Schedule VII of the Revenue Tribunal. Annexed herewith and marked as 'Annexure R-1' is the copy of rules of business."

6.1 Having heard learned advocates for the parties and having gone through the material on record, more particularly in view of the affidavit-in-reply filed by Respondent - State, the proper forum to challenge the order passed by the Deputy Collector dated 25.06.2019 in Page 7 of 9 Downloaded on : Tue Apr 12 21:13:54 IST 2022 C/SCA/7391/2021 ORDER DATED: 11/04/2022 Tenancy Appeal No.14 of 2019 would be Gujarat Revenue Tribunal and not the Special Secretary (Appeals), Revenue Department and since the Special Secretary (Appeals) Revenue Department vide order dated 30.12.2020 has only deleted the case from the Register of Special Secretary (Appeals) Revenue Department, no further order in that respect is required to be passed. However, petitioner is permitted to prefer revision application before the Gujarat Revenue Tribunal challenging the order dated 25.06.2019 in Tenancy Appeal No.14 of 2019.

6.2 Since the Special Secretary (Appeals) Revenue Department has not observed anything on merits of the matter and has simply deleted the case from the register of Special Secretary (Appeals) Revenue Department, Gujarat Revenue Tribunal is directed to consider the revision application that may be preferred by the petitioner, on its own merits, on the basis of material available on record by taking into consideration the application of delay that the petitioner may prefer and the grounds that it may contain on its own merits.

7. With the above observations and directions, present petition is disposed of. Notice is discharged. No order as to costs.

8. It is made clear that this Court has not gone into the merits of the matter. The rights and contentions of all the Page 8 of 9 Downloaded on : Tue Apr 12 21:13:54 IST 2022 C/SCA/7391/2021 ORDER DATED: 11/04/2022 parties are kept open.

(NIRZAR S. DESAI,J) MISHRA AMIT V. Page 9 of 9 Downloaded on : Tue Apr 12 21:13:54 IST 2022