Gujarat High Court
Hemant Pragjibhai Patel vs State Of Gujarat on 30 April, 2018
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/15745/2017 CAV ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15745 of 2017
With
CIVIL APPLICATION NO. 1 of 2018
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HEMANT PRAGJIBHAI PATEL Versus STATE OF GUJARAT ========================================================== Appearance:
MR SHALIN MEHTA, SR. ADVOCATE WITH MR VIMAL A PUROHIT(5049) for the PETITIONER(s) No. 1 DS AFF.NOT FILED (N)(11) for the RESPONDENT(s) No. 2,3,4,5.1,5.2 MR MANAN MEHTA, AGP (1) for the RESPONDENT(s) No. 1 MR PERCY KAVINA, SR. ADVOCATE WITH MR P P MAJMUDAR(5284) for the RESPONDENT(s) No. 4.1 ========================================================== CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA Date : 30/04/2018 CAV ORDER IN IA This Civil Application is filed under Article 226(3) of the Constitution by the applicant - original respondent No.4.1 in the Special Civil Application, praying to vacate ad-interim order granted by dated 19th September, 2017 passed in the main petition.
1.1 Heard learned senior advocate Mr.Percy Kavina with learned advocate Mr.P.P. Majmudar for the applicant, learned senior advocate Mr.Shalin Mehta with learned advocate Mr.Vimal Purohit for the original petitioner - opponent No.5 herein, and learned Assistant Government Pleader Mr.Manan Mehta for the respondent - State and its authorities.Page 1 of 14
C/SCA/15745/2017 CAV ORDER
2. The sole ground urged, argued and pressed and on which the prayer for vacation of interim relief was rested, was that the original petitioner could not be said to be "a person aggrieved" to be entitled to challenge the orders impugned in the main petition and that the petitioner lacked locus standi in law.
3. In order to consider whether this preliminary objection is required to be countenanced, an eyeview of the controversy and the orders under challenge in the main Special Civil Application No.15745 of 2017 would be necessary.
3.1 In the Special Civil Application No.15745 of 2017, two orders are brought under challenge. First is order dated 30th December, 2015 passed by the Deputy Collector, Patan in Ganot Case No.25 of 2015, whereby the Deputy Collector set aside order of the year 1964 passed by the Mamlatdar & Agricultural Land Tribunal, and remanded the case to the Mamlatdar. The second order challenged is the order dated 18th January, 2016 of the Mamlatdar & Agricultural Land Tribunal in Tenancy Remand Case No.32G/2 of 2016. By the said order, the Mamlatdar held that in the land in question the tenancy right of Ishwarbhai Khodabhai
- respondent No.5 was terminated and the land was ordered to be given back to the landlord - the applicant herein - original respondent No.4.1 Arvindbhai Babubhai Patel (hereinafter referred to as 'respondent No.4.1'). The Mamlatdar further directed that the effect of this order of astinguishment of Page 2 of 14 C/SCA/15745/2017 CAV ORDER the tenancy rights and reverting back the land to respondent No.4.1 shall be mutated in the record of rights.
3.2 The land which is subject matter of the said impugned orders bears Survey No.416 and is situated at Village Kuder, Taluka Patan (hereinafter referred to as 'the Kuder land'). As per the above order of the Mamlatdar, in view of reverting back of the land to the ownership of respondent No.4.1, he would be able to claim status of agriculturist.
3.3 While considering the preliminary objection about the locus standi of the original petitioner hereinafter referred to as the 'petitioner'), the rival contentions qua the aforesaid two orders impugned in the petition and the merit aspects thereof do not become relevant, however, may be briefly stated for better comprehension of controversy. It is the case of the original petitioner that by instituting the Ganot Case before the Deputy Collector, sought to be challenged was the order dated 05th January, 1964 passed by the Mamlatdar & ALT whereby in respect of the said Kuder land, proceedings under Section 32G were taken out, the tenancy claim was set at rest and the land was vested in the State Government. The land remained in the name of the State Government in the revenue records since 1988 onwards till 2016. It is the case of the petitioner that after 51 years, the said order of the Mamlatdar passed in 1964 was sought to be re-opened which was abuse of tenancy machinery by original Page 3 of 14 C/SCA/15745/2017 CAV ORDER respondent No.4.1. The say of the original respondent No.4.1 is that the said order of 1964 was not passed in accordance with provision of Section 32G of the Act.
3.4 One of the contentions of the original petitioner is also that since the original respondent No.4.1 wanted to acquire status of agriculturist and to capitalize such status in the other tenancy proceedings in respect of different subject-matter land between the parties, he calculatively invoked challenge against the order passed in the year 1964 and initiated Ganot Case No.25 of 2015 which now resulted into the order of the Mamlatdar as above.
According to the petitioner, he is required to challenge the said orders as between him and respondent No.4.1 tenancy proceedings in respect of other lands have been going on, in which the impugned order would be used against him by respondent No.4.1 to project the status of agriculturist.
3.5 Now, the other proceedings in respect of the another land between the petitioner and respondent No.4.1, to be juxtaposed to search the answer of preliminary issue about the locus standi of the petitioner, are in relation to land bearing Survey No.962 at Village Bhayali, and Survey No.159 at Village Raipura, Taluka Vadodara (referred to as 'Vadodara land'). These two lands were purchased by the registered sale deed of May, 2007 and September, 2008 respectively by the petitioner - Hemantbhai Pragjibhai. As per the allegations in the controversy Page 4 of 14 C/SCA/15745/2017 CAV ORDER in respect of these lands, respondent No.4.1 got created a power of attorney as if the power-of- attorney was executed by petitioner in his favour. On the basis of power-of-attorney dated 22nd September, 2008, a registered sale deeds came to be executed in favour of respondent No.4.1 in respect of land survey No.962 as also in respect of other land Survey No.159. It appears that civil suit instituted by the petitioner is pending.
3.6 In respect of dispute regarding above Vadodara land between the parties, in course of the revenue proceedings carried on, the Deputy Collector, Patan, at one stage directed to initiate inquiry for examining the question whether original respondent No.4.1 Arvindbhai was an agriculturist or not. The proceedings of RTS Appeal etc. went on, and at particular stage on 15th April, 2017 Deputy Collector, Patan, held that original respondent No.4.1 was not an agriculturist in respect of land Survey No.571 situated at Balisana, Taluka Patan. Respondent No.4.1 was claiming to be agriculturist with reference to this Balisana land in the said proceedings. Against this order dated 15th April, 2017, respondent No.4.1 has approached Gujarat Revenue Tribunal by way of Revision Application, which is pending.
3.7 Now as far as Survey No.571 at Village Balisana, Patan is concerned (referred to as 'Balisana land'), respondent No.4.1 wanted his name to be entered into revenue records to acquire the status of agriculturist. In respect of Balisana land Page 5 of 14 C/SCA/15745/2017 CAV ORDER also, the tenancy proceedings before the Mamlatdar and Deputy Collector are pending.
3.8 The presently impugned orders in the main petition which are in relation to land of Kuder Village, are being relied on by respondent No.4.1 to claim his status as agriculturist, in the proceedings relating to the Vadodara land. The Balisana land proceedings are also relied on in the Vadodara land proceedings to assert the status of agriculturist by respondent No.4.1. It is in this context it is the say of the petitioner that his rights stands prejudiced and his defence is adversely affected in the proceedings of Vadodara land, and which necessitated for him to challenge the orders passed in relation to Kuder land.
4. learned senior advocate for the applicant - original respondent No.4.1 submitted that the opponent No.5 - original petitioner could not have challenged the impugned orders and that he had no locus standi to file the petition in asmuch as he was not party to the proceedings which culminated into the impugned orders. It was submitted that the ground that the impugned orders would affect him in the other proceedings would not confer on the petitioner entitlement to challenge these proceedings and it would not imply that the petitioner was an aggrieved person. It was submitted that in order to maintain private litigation, the petitioner has to show that he has suffered injury in law and that he has legal right in respect of the subject matter. It was Page 6 of 14 C/SCA/15745/2017 CAV ORDER submitted that when the Kuder land and Vadodara land are different subject matter, the petitioner could not be permitted to raise challenge in respect of one proceedings on the ground of adversial effect in the other proceedings.
4.1 Learned senior advocate relied on decision of the Supreme Court in Adi Pherozshah Gandhi v. H.M. Seervai, Advocate General of Maharashtra, Bombay [1970 (2) SCC 484] more particularly observations in paragraphs 32 and 35 thereof to submit that the petitioner did not have any independent right to challenge the impugned orders. He further pressed into service order of the Division Bench of this Court in Laljibhai Abhabhai Chaudhary through POA Jorabhai L. Chaudha v. Chaudhary Laxmanbhai Parthibhai being Letters Patent Appeal No.1291 of 2011 decided on 09th November, 2011 to buttress his proposition.
4.2 On the other hand, learned senior advocate for original petitioner submitted that the petitioner was seriously affecting by virtue of the impugned orders passed in respect of Kuder land, since by virtue of those orders, respondent No.4.1 would become agriculturist and he would rely on such status in the proceedings between the parties in relation to the Vadodara land which are also under the tenancy law. He submitted that the petitioner could be said to have subsisting right and interest to challenge the orders impugned in the petition. He submitted that the petitioner's aggrievement is not merely Page 7 of 14 C/SCA/15745/2017 CAV ORDER pyschological or imaginary since his right is going to be jeopardized in the tenancy proceedings pending against respondent No.4.1.
4.3 Learned senior advocate relied on decision of the Apex Court in Ayaaubkhan Noorkhan Pathan v. State of Maharashtra [(2013) 4 SCC 465]. He next relied on another decision also of the Supreme Court in Jagdish Singh v. Heeralal [(2014) 1 SCC 479] more particularly paragraph 19 thereof which was in relation to the express 'any person' used in Section 17 of the SERFAESI Act for which the Court held that it was of wide import to include the borrower as well. Another decision pressed into service by senior counsel was in Hardevinder Singh v. Paramjit Singh [(2013) 9 SCC 261], to highlight the legal concept of aggrieved person.
5. In the conspectus of aforesaid facts, attendant aspects and the rival submissions, the moot question is whether the petitioner could be said to be 'a person aggrieved' to challenge the orders sought to be impugned in the petition and whether he could be clothed with locus standi to maintain the petition under Article 226 of the Constitution to challenge those orders. The question incidentally posed is whether the petitioner could be permitted to raise challenge in respect of the impugned orders which are in relation to the lands at Kuder village, for the reason that respondent No.4.1 could be able to employ the effect of the said order to claim his status as agriculturist in the proceedings pending Page 8 of 14 C/SCA/15745/2017 CAV ORDER between the two parties in connection with the different lands at Vadodara.
5.1 In Jashbhai Motibhai Desai v. Roshan Kumar, Haji Bashir Ahmed [(1976) 1 SCC 671] the Supreme Court elaborately expressed the concept of aggrieved person and observed that in order to have a locus standi to invoke certiorari jurisdiction, the petitioner should be an aggrieved person. It was observed that the express 'person aggrieved' would mean a person who had suffer a legal grievance. The Apex Court quoted with approval the following observations from James T. J. in Re Sidebothem [(1980) 14 Ch D 458, 465] which were the observations referred to by Saloman J. quoted therein.
"The words 'person aggrieved' do not really means a man who is disappointed of a benefit which he might have received if some other order had been made. A 'person aggrieved' must be a man who has suffered a legal grievance,'a man against whom a decision has been pronounced which has wrongfully deprived him of something, or wrong fully refused him something, or wrongfully affected his title to something."
(Para 30) 5.2 The following observations of the Apex Court in Ravi Yashvant Bhoir v. District Collector, Raigad [(2012) 4 SCC 407] explains the concept and the law.
"... ... ... A legal right is an averment of entitlement arising out of law. In fact, it is a benefit conferred upon a person by the rule of law. Thus, a person who suffers from legal injury can only challenge the act or omission. There may be some harm or loss that may not be wrongful in the eyes of law because it may not result in injury to a legal right or legally protected interest of the complainant but juridically harm of this description is called damnum sine injuria."
(Para 58) "The complainant has to establish that he has been Page 9 of 14 C/SCA/15745/2017 CAV ORDER deprived of or denied of a legal right and he has sustained injury to any legally protected interest. In case he has no legal peg for a justiciable claim to hang on, he cannot be heard as a party in a lis. A fanciful or sentimental grievance may not be sufficient to confer a locus standi to sue upon the individual. There must be injuria or a legal grievance which can be appreciated and not a stat pro ratione valuntas reasons i.e. a claim devoid of reasons."
(Para 59) 5.3 The Supreme Court in Bar Council of Maharashtra v. M.V. Dabholkar [(1975) 2 SCC 702] opined that meaning of the words 'person aggrieved' will have to be ascertained with reference to the purpose and the provisions of the statute. It observed that the words 'person aggrieved' correspond to the requirements of locus standi which arises in relation to judicial remedies.
5.4 In Ayaaubkhan Noorkhan (supra), relied on in Hardevinder Singh (supra), the Apex Court stated, "A 'legal right', means an entitlement arising out of legal rules. Thus, it may be defined as an advantage, or a benefit conferred upon a person by the rule of law. The expression, 'person aggrieved' does not include a person who suffers from a psychological or an imaginary injury; a person aggrieved must, therefore, necessarily be one whose right or interest has been adversely affected or jeopardised. (Vide Shanti Kumar R. Canji v. Home Insurance Co. of New York [(1974) 2 SCC 387] and State of Rajasthan v. Union of India [(1977) 3 SCC 592].)" (Para 10) 5.5 In Nahar Sing v. Mohan Kumar [AIR 1993 J&K 69] it was observed that the words 'person aggrieved' would include a person whose interests are prejudicially affected by a decision. A person who has a genuine grievance that the decision has adversely hit him, denied him something which was otherwise legally possible to be due to him and if Page 10 of 14 C/SCA/15745/2017 CAV ORDER the decision or action has imposed some burden on him to be discharged. It was similarly stated by the High Court of Orissa in Sri Santosh Kumar Agarwalla v. State of Orissa [AIR 1993 Orissa 217] that a person aggrieved in respect of order is one whose interests are prejudicially affected. In an English decision in A.G. Gambia v. N'Ji [(1962) ALL ER 504] it was stated that the words 'person aggrieved' are of wide import and should not be subjected to a restrictive interpretation. It was observed that these observations do not include of course, a mere busybody who is merely an intermeddler, however a person would be aggrieved who has a genuine grievance because an order has been made which prejudicially affects his interests.
5.6 Thus in the character of 'a person aggrieved', there must be an element of sufferance of legal right. It is the legal injury which makes a person an aggrieved person in eye of law to maintain particular proceedings. The principle apply are injuria sine damnum and not the damnum sine injuria. A damage suffered without legal injury would not give a right to sue, but converse is true. When it can be said that a legal injury is suffered, even in absence of apparent damage suffered by such injury, the sufferer of the injury would have to be accorded remedy and he would be invested with right to challenge conduct, action or order which may have resulted into causing a legal injury to him. Legal injury in other words is infringement of legal right. This right in the nature of legal injury may be a Page 11 of 14 C/SCA/15745/2017 CAV ORDER right to assert a particular thing, or it may be a right to raise defence on particular count. If the rights of these nature stand violated, the sufferer would be an aggrieved person able to claim locus standi in law.
6. Reverting to the facts of the case, the petitioner wants to challenge the orders passed by the tenancy authorities in respect of land Survey No.416 situated at Village Kuder, the reason for which is that respondent No.4.1 has been using these orders to establish his status as an agriculturist in the tenancy litigation which is pending between the petitioner and respondent No.4.1 in connection with the land bearing Survey No.962 and 159 at Village Bhayali and Raopura in Vadodara Taluka. Therefore the orders passed by the tenancy authorities in respect of the Kuder land whereby the respondent No.4.1 becomes an agriculturist would directly affect the petitioner in the said other proceedings, where the status of agriculturist of respondent No.4.1 would be a factor of decisive merit in favour of respondent No.4.1 and against the petitioner. This tantamount to an injury in law.
6.1 The right of the petitioner in respect of Vadodara land in the said litigation could undoubtedly be said to be prejudicially affected because of the orders passed in respect of Kuder land as above. There is a direct interaction of the question whether respondent No.4.1 is agriculturist in the said two proceedings. The petitioner rightly Page 12 of 14 C/SCA/15745/2017 CAV ORDER stands aggrieved because of the orders passed in relation to Kuder land as it cuts into his interest in the Vadodara land where the proceedings are between the same parties. With such facts attending the case of the petitioner, he cannot be denied the status of 'aggrieved person' to be able to secure locus standi in law for himself to file petition to challenge orders in relation to Kuder land.
7. In view of the foregoing discussion and reasons, the preliminary plea of the applicant has to be turned down. It is held that the original petitioner - opponent No.5 herein could be treated as 'person aggrieved' to be entitled to challenge orders of the Deputy Collector and Mamlatdar dated 30th December, 2015 and 18th January, 2016 respectively by way of Special Civil Application under Article 226 of the Constitution. Resultantly, the present Civil Application is dismissed.
8. However, it is clarified that the decision in this Civil Application is delimited only to the aforesaid point and all other aspects of merits including delay and acquiescence in lodging the challenge as well as the plea of availability of alternative remedy against the impugned orders, are kept open to be agitated in the main petition by the parties and that this Court has not gone into, nor expressed any opinion thereon.
9. As the arguments were heard in Civil Application No.01 of 2018 only and the order was Page 13 of 14 C/SCA/15745/2017 CAV ORDER reserved qua the Civil Application only, which is pronounced as above. Therefore, now, the main Special Civil Application shall be listed for hearing on merits on 15th June, 2018 as requested by the learned advocates for the parties.
(N.V.ANJARIA, J) Anup Page 14 of 14