Gujarat High Court
State Of Gujarat vs Smt.Savitrirani Atmaprakash Grover & 4 on 15 September, 2014
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/12122/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12122 of 2013
[On note for speaking to minutes of order dated 16/07/2014 in
C/SCA/12122/2013 ]
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STATE OF GUJARAT....Petitioner(s)
Versus
SMT.SAVITRIRANI ATMAPRAKASH GROVER & 4....Respondent(s)
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Appearance:
GOVERNMENT PLEADER for the Petitioner(s) No. 1
MR DILIP L KANOJIYA, ADVOCATE for the Respondent(s) No. 3
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 15/09/2014
ORAL ORDER
1. Learned advocate for the petitioner has filed note dated 10.09.2014 in the nature of speaking to minutes, which is circulated by office under office note dated 11.09.2014.
2. The petitioner has averred in the note that:-
" It was also mentioned in the said order that all contentions of the respondents including the contention that ground of delay is kept open and it would be open to both the parties to raise all contentions as may be available in law at the time of hearing.Page 1 of 2
1 of 10 C/SCA/12122/2013 ORDER However, at the last paragraph of the said order reads as:-
W " ith the aforesaid clarification and observations, present petition stands disposed of."
The said line was not dictated at the time of passing of the order and due to inadvertent error, the said line is transcribed. Hence, last line of the order dated 16.07.2014 is required to be deleted as the writ petition is still pending and this Hon'ble Court admitted the petition and granted interim relief in favour of the petitioner. Hence, be pleased to circulate this note for speaking to minutes before the appropriate Court for necessary orders."
3. In view of the said submission by learned Counsel for the petitioner, office is directed to delete the last line/sub paragraph of paragraph no.28 on page no.8 of the order dated 16.07.2014 i.e. the line/sub-paragraph, which reads thus:-
"With the aforesaid clarification and observations, present petition stands disposed of."
Note for speaking to minutes accordingly stands disposed of.
(K.M.THAKER, J.) Girish Page 2 of 2 2 of 10 C/SCA/12122/2013 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 12122 of 2013 ================================================================ STATE OF GUJARAT....Petitioner(s) Versus SMT.SAVITRIRANI ATMAPRAKASH GROVER & 4....Respondent(s) ================================================================ Appearance:
MR.P.K.JANI, GOVERNMENT PLEADER for the Petitioner(s) No. 1 MR.SANAJANWALA, LEARNED SENIOR COUNSEL FOR MR DILIP L KANOJIYA, ADVOCATE for the Respondent(s) No. 3 ================================================================ CORAM: HONOURABLE MR.JUSTICE K.M.THAKER Date : 16/07/2014 ORAL ORDER
1. Heard Mr.Jani, learned Government Pleader for the Petitioner-State and Mr.Sanjanwala, learned Senior Counsel with Mr.Kanojiya, learned advocate for the respondent.
2. The Petitioner-State has taken out present petition against the order dated 21.08.2009 passed by the learned Gujarat Revenue Tribunal and has prayed inter alia that:-
"4(B) This Hon'ble Court may be pleased to quash and set aside the order dated 21.08.2009 passed in Revision Application No.TEN/BA/827/1994 passed by GRT.
4(C) Pending admission, adjudication and hearing of this appeal, this Hon'ble Court may be pleased to stay the implementation, operation and execution of the impugned order dated 21.08.2009."
3. So far as factual matrix of facts is concerned, the petitioner has averred, inter alia, that:-
Page 1 of 83 of 10 C/SCA/12122/2013 ORDER "2.1 The petitioner prays that respondent no.1 to 3 had purchased the land bearing block no.110, revenue survey no.76, at Mauje Sutrel, Taluka Vagra, District Bharuch (hereinafter s " aid land").
The total measuring of the said land is 6 hectare - Are. The respondent purchased the said land by registered deed dated 11.031987 from the respondent no.2 and entry with respect toe the same was effected in the revenue record vide entry no.1353 dated 11.03.1987.
2.2 The petitioner states that the Mamlatdar and ALT initiated the proceedings under Section 84(c) of the Bombay Tenancy and Agricultural Lands Act of 1948. By way of order dated 01.02.1994 passed in Tenancy Case No.10 of 1993, the said land was vested in the State of Gujarat. The transaction in favour of respondent no.1 to 3 by respondent no.4 is gross violation of provisions of Section 2(6), 43 and 63 of the Bombay Tenancy and Agricultural Lands Act of 1948.
2.3 Being aggrieved and dissatisfied by the order passed by the Mamlatdar and ALT the respondent nos.1 to 3 preferred an appeal before the Deputy Collector, Bharuch being Tenancy Appeal No.5 of 1994. The Deputy Collector after considering all the relevant records, vide order dated 23.05.1994 quashed and set aside the order passed by the Mamlatdar and ALT and remanded to initiate the proceeding s under Section 84(c)(2) of the said Act.
2.4 Being aggrieved and dissatisfied with the order passed by the Deputy Collector dated 23.05.1994, the respondent nos.1 to 3 preferred the Revision Application before the GRT being Revision Application No.TEN/BA/827/1994. The learned Tribunal vide judgment and order dated 21.08.2009 allowed the Revision Application filed by the respondent no.1 to 3 and quashed and set aside order passed by the Mamlatdar and ALT passed in Tenancy Case No.10 of 1993 and order passed by the Deputy Collector, Bharuch in Tenancy Appeal No.5 of 1994 and directed to accept the premium of the respondent no.1 to 3 after considering the position on 11.03.1987.
2.5 At the time of hearing the revision application by respondent nos.1 to 3 learned Tribunal passed an interim stay order by way of order dated 17.08.1994.
2.6 The Mamlatdar and ALT were already issued notice to the respondent on 06.10.1994 for breach of provision of the said act. As per the decision of the Tribunal, the Tribunal counted delay of more than six years. Mainly on the ground of delay, the Tribunal passed the order in favour of respondent nos.1 to 3."
4. The respondent has opposed the petition and filed affidavit, wherein the respondent has averred, inter alia, that:-
"3. I say and submit that as per the direction, the respondent herein has filed an application dated 24.03.2014 to determine the amount of premium before the Collector, Bharuch. Pursuant to the Page 2 of 8 4 of 10 C/SCA/12122/2013 ORDER above application and as per the order passed by the Hon'ble Gujarat Revenue Tribunal, written reply was given 17.04.2014 to the petitioner by the Collector whereby it has been conveyed to him that the State authorities have preferred Special Civil Application No. 12122 of 2013 before the Hon'ble Gujarat High Court and is pending.
4. Subsequent to aforesaid in view of the interim order passed by the Hon'ble Court dated 24.04.2014, the office of Collector has already initiated proceedings for determining the amount of premium. For deciding the premium amount, case is required to place before the district valuation committee.
5. I say and submit that pursuant thereto, on dated 05.06.2014 proposal is already forward to the Mamlatdar, Vagra and Town Planning Officer, Bharuch.
5. In this background, Mr.Jani, learned Government Pleader, submitted that the respondent, who is not an agriculturist, purchased agricultural land from the seller who held the same on n " ew tenure" or r " estricted" basis.
6. Mr.Jani, learned Government Pleader submitted that it is not in dispute that the land in question, which the respondents herein purchased, is the new tenure land and that therefore, the conditions prescribed under Section 43 of the Bombay Tenancy and Agricultural Lands Act,1948, are attached to the said land in question.
7. Mr.Jani, learned Government Pleader submitted that despite that fact that the land in question is what is commonly known and referred to as "new tenure land", the respondents herein purchased the land without obtaining prior permission in accordance with relevant provisions under the Act.
8. The disputed transaction was entered into and executed in March-1987 and the entry recording the transaction came to be mutated at No.1353 on 11.03.1987 in the revenue record of the village.
Page 3 of 85 of 10 C/SCA/12122/2013 ORDER
9. In this background, and more particularly, having regard to the fact that the disputed transaction in respect of new tenure land, the Mamlatdar and ALT initiated proceedings and after hearing the parties, the Mamlatdar and ALT passed order dated 01.02.1994 in Tenancy Case No.10/93. By the said order, the Mamlatdar and ALT directed that the land shall vest in the State.
10. Mr.Jani, learned Government Pleader submitted that at the stage when the hearing in respect of the said Tenancy Case No.10/93 was instituted and even in the order dated 01.02.1994, there was no issue of payment of any premium i.e. regularizing the transaction by payment of premium.
11. According to the learned Government Pleader, the said aspect was not subject to the proceedings and it was not even considered and decided by the authority. Actually, it was not even raised for consideration by the authority even at the behest of present respondent or anyone, much less by the State.
12. Mr.Jani, learned Government Pleader submitted that aggrieved by the order passed by the Mamlatdar & ALT, the respondent nos.1 to 3 preferred an appeal before the Deputy Collector, who, vide order dated 23.05.1994 quashed and set-aside the order passed by the Mamlatdar and ALT and remanded the proceedings to the Mamlatdar with direction to institute appropriate proceedings.
13. Mr.Jani, learned Government Pleader submitted that though the said order was in favour of the respondent nos.1 to 3 inasmuch as the Mamlatdar's order directing Page 4 of 8 6 of 10 C/SCA/12122/2013 ORDER that the land shall vest in Government was set-aside and the proceedings were remanded to the Mamlatdar, the respondent nos.1 to 3 preferred revision application before the learned Tribunal, which came to be registered as Revision Application No.827/1994.
14. Mr.Jani, learned Government Pleader further submitted that though in the entire proceedings before the Mamlatdar and also before the Deputy Collector, there was no issue of payment of premium and the said aspect was never the subject matter of proceedings and was never considered and decided at civil stage, the learned Tribunal allowed the revision application by the impugned order dated 21.08.2009 and while setting aside the order passed by the Mamlatdar & ALT and by the Deputy Collector has issued the impugned directions, which are unjust and arbitrary and beyond the scope of the proceedings before the learned Tribunal.
15. Mr.Jani, learned Government Pleader alleged that the impugned direction is passed on irrelevant and extraneous consideration. He further submitted that, in the impugned order, there are material irregularity and the impugned order is vitiated by extraneous consideration, and when the Deputy Collector had remanded the entire matter for fresh decision, there was no occasion and/or justification to dispose of and allow the appeal by setting aside the order of remand and then going further - without any basis or justification - the learned Tribunal allowed the appeal and passed direction, which was not even subject/matter of appeal/revision.
16. therefore, the said order may be set-aside.
Page 5 of 87 of 10 C/SCA/12122/2013 ORDER
17. The petition is opposed by the respondents.
18. Mr.Sanajanwala, learned Senior Counsel submitted that the petition is hit by inordinate delay of about four years and that therefore, on the said ground, the petition does not deserve to be entertained.
19. Mr.Sanajanwala, learned Senior Counsel submitted that there is no default on the part of the respondent nos.1 to
3. He also submitted that purchasers i.e. respondent nos.1 to 3 are bonafide purchasers.
20. Mr.Sanajanwala, learned Senior Counsel submitted that entry was mutated in March-1987 and it was certified in May,1987, and the said entry was not disturbed until 1994. However, after delay of almost seven years, the Mamlatdar instituted the proceedings under Section 84(c) of the Act. He submitted that the said delay of almost seven years vitiates the proceedings initiated by the Mamlatdar.
21. Mr.Sanajanwala, learned Senior Counsel further submitted that the learned Tribunal passed the order, and thereafter, after delay of another five years, the Petitioner-State has challenged the order.
22. Mr.Sanajanwala, learned Senior Counsel also made reference of order dated 28.07.2004 passed in Special Civil Application No. 18166 of 2003 and order dated 24.04.2007 passed in Special Civil Application No. 10520 of 2006.
23. I have heard learned advocates for the contesting parties and also examined the material available on record and the impugned order.
Page 6 of 88 of 10 C/SCA/12122/2013 ORDER
24. It is true that on examination of the impugned order, it prima-facie appears that the issue related to payment of premium was not subject matter before the learned Tribunal.
25. It also prima-facie appears that when the disputed transaction is executed by committing breach of statutory provision, then there was no justification before the learned Tribunal to pass the impugned directions.
26. It also prima-facie appears that the learned Tribunal has, without recording any conclusion as to how the orders passed by the Mamlatdar and/or the Deputy Collector are incorrect and unjustified and without recording any reasons as to how and why the conclusion that the orders passed by the Malatdar and/or the Deputy Collector deserves to be set-aside, was reached and learned Tribunal without any justification and without recording reasons quashed the order passed by the Deputy Collector and passed the impugned order.
27. In this view of the matter, a question which arises, in light of respondent's objections, is whether the delay in taking out the petition should be allowed to stand in way of the challenge against the order or the explanation for cause which resulted in delay should be considered and the matter should be simultaneously examined on merits. A question also arises viz. whether, in view of the scope of the order by the Deputy Collector, which was under
challenge before the learned Tribunal and having regard to the fact that the said order came to be passed with reference to proceeding under Section 84(c), it was open Page 7 of 8 9 of 10 C/SCA/12122/2013 ORDER to the learned Tribunal, in its revisional jurisdiction, to pass impugned direction.
28. In that view of the matter, the petition deserves consideration. Therefore, below mentioned order is passed:-
RULE.
By way of ad-interim relief, operation of the impugned order dated 21.08.2009 is stayed.
It is however, clarified that all contentions of the respondents including the contention that ground of delay is kept open and it would be open to both the parties to raise all contentions, as may be available in law at the time of hearing.
With the aforesaid clarifications and observations, present petition stands disposed of.
(K.M.THAKER, J.) Girish Page 8 of 8 10 of 10