Gujarat High Court
Deceased Ratanlal Maganlal Doodhwala & ... vs Mamlatdar And Alt & 5 on 4 April, 2016
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/12002/2001 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12002 of 2001
[On note for speaking to minutes of order dated 30/03/2016 in
C/SCA/12002/2001 ]
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DECEASED RATANLAL MAGANLAL DOODHWALA & 3....Petitioner(s)
Versus
MAMLATDAR AND ALT & 5....Respondent(s)
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Appearance:
MR BS PATEL, ADVOCATE for the Petitioner(s) No. 1 - 1.1.4 , 1.2 - 1.4
MRS RANJAN B PATEL, ADVOCATE for the Petitioner(s) No. 1 - 1.1.4 , 1.2 - 1.4
GOVERNMENT PLEADER for the Respondent(s) No. 1 - 2
MR MANAN BHATT FOR MR ASIM J PANDYA,ADVOCATE for Respondent No.3.1 - 3.5,4- 5
MR BIPIN I MEHTA, ADVOCATE for the Respondent(s) No. 6
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
Date : 04/04/2016
ORAL ORDER BELOW NOTE FOR SPEAKING TO MINUTES
1. The Note for Speaking to Minutes has been preferred by Mr.Asim J. Pandya, learned advocate for respondents Nos.3/1 to 3/5 and respondents Nos.4 and 5, indicating that in the judgment dated 30.03.2016, passed by this Court in Special Civil Application No.12002/2001, a typographical error has occurred in paragraph2, more specifically the fourth line of the said paragraph, wherein Revenue Survey No.901 has been mentioned instead of 910.
2. It is submitted that the said mistake may be Page 1 of 2 HC-NIC Page 1 of 21 Created On Tue Apr 05 00:41:41 IST 2016 1 of 21 C/SCA/12002/2001 ORDER rectified.
3. Having heard Mr.Manan Bhatt, learned advocate for Mr.Asim J. Pandya, learned advocate for respondents Nos.3/1 to 3/5 and respondents Nos.4 and 5, and as it is clear from the memorandum of the petition (paragraph3.1) that the correct Revenue Survey number is 910, the following order is passed:
In the fourth line of paragraph2 of the above judgment, Revenue Survey No.901, which has been wrongly typed, shall be shown as 910. The Registry to incorporate the above correction in the judgment and issue a fresh Writ thereof, at the earliest.
The Note for Speaking to Minutes is disposed of.
(SMT. ABHILASHA KUMARI, J.)
Gaurav+
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 12002 of 2001 FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI ========================================================== 1 Whether Reporters of Local Papers may be allowed No to see the judgment ?
2 To be referred to the Reporter or not ? No 3 Whether their Lordships wish to see the fair copy of No the judgment ?
4 Whether this case involves a substantial question of No law as to the interpretation of the Constitution of India or any order made thereunder ?
========================================================== DECEASED RATANLAL MAGANLAL DOODHWALA & 3....Petitioner(s) Versus MAMLATDAR AND ALT & 5....Respondent(s) ========================================================== Appearance:
MR CHIRAG B PATEL, ADVOCATE FOR MR BS PATEL, ADVOCATE for the Petitioners MRS RANJAN B PATEL, ADVOCATE for the Petitioners MR UDIT MEHTA, ASSISTANT GOVERNMENT PLEADER for Respondents Nos. 1 - 2 MR ASIM J PANDYA, ADVOCATE for the Respondents Nos. 3.1 - 3.5 , 4 - 5 MR BIPIN I MEHTA, ADVOCATE for Respondent No. 6 ========================================================== CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 30/03/2016 ORAL JUDGMENT
1. This petition under Articles 226 and 227 of the Page 1 of 19 HC-NIC Page 3 of 21 Created On Tue Apr 05 00:41:41 IST 2016 3 of 21 C/SCA/12002/2001 JUDGMENT Constitution of India has been preferred, praying for the issuance of a Writ of Certiorari, quashing and setting aside the order dated 19.06.1990, passed by the Mamlatdar and ALT (respondent No.1 herein) in Tenancy Case No.7084/1989, the order dated 28.06.1993, passed by the Deputy Collector (Land Reforms) Appeal, Vadodara (respondent No.2 herein) in Appeal No.TEN/D/REVI/76A/24/92 and the order dated 07.03.2001, passed by the Gujarat Revenue Tribunal, in Revision Application No.TEN/BA/907/1993.
2. The brief factual background in which the petition has been filed is that, the petitioners claim to be the owners of lands bearing Revenue Survey Nos.887, 901, 574/1, 874/2, admeasuring HectareAreSq.mtr. 0911, 02529, 01518, and 01214, situated in village Bapod, Taluka Vadodara (the land in question). Respondents No.3 (since deceased, now represented by his heirs, respondents Nos.3/1 to 3/5) as well as respondents Nos.4 and 5, filed an application under Section 70B of the Gujarat Tenancy and Page 2 of 19 HC-NIC Page 4 of 21 Created On Tue Apr 05 00:41:41 IST 2016
4 of 21 C/SCA/12002/2001 JUDGMENT Agricultural Lands Act, 1948 ("the Tenancy Act"
for short) before the first respondent to be declared as tenants of the land in question. Respondent No.1 passed an order dated 19.06.1990, declaring respondents Nos.3 to 5 as tenants upon the said land. Aggrieved by the order of the Mamlatdar, the petitioners preferred an appeal before the second respondent, who, by an order dated 28.06.1993, confirmed the order passed by the first respondent, and rejected the appeal. The petitioners preferred a revision application before the Gujarat Revenue Tribunal ("the Tribunal" for short) against the order passed by respondent No.2. The said application has been rejected by an order dated 07.03.2001. Aggrieved by the abovementioned orders, the petitioners have approached this Court.
3. It transpires from the record that, initially, this very petition had been allowed by an order dated 06.10.2003, passed by this Court (Coram:
Hon'ble Mr.Justice K.A.Puj), on the basis of the Consent Terms jointly filed by the petitioners Page 3 of 19 HC-NIC Page 5 of 21 Created On Tue Apr 05 00:41:41 IST 2016
5 of 21 C/SCA/12002/2001 JUDGMENT and respondents Nos.3 to 5. Thereafter, respondents Nos.3 to 5 filed an application, being Miscellaneous Civil Application No.3326 of 2006, for the recall of the order dated 06.10.2003, on the ground that the Consent Terms had been obtained fraudulently by the petitioners, who had not acted in accordance with the settlement. This Court, passed an order dated 24.08.2007, in the Miscellaneous Civil Application, recalling the order dated 06.10.2003 passed in the petition, and restored the petition. The petition has thus been revived and is at the stage of final hearing.
4. During the pendency of the petition, an application for joining as party respondent was filed by respondent No.6 herein, which has been allowed. The case of respondent No.6 is to the effect that the petitioners have sold a part of the land in question to him, by a registered Sale Deed dated 16.09.2004. Respondent Nos.3 to 5 have been declared as tenants over this parcel of land by way of the impugned orders. According to respondent No.6 he, being a purchaser of the Page 4 of 19 HC-NIC Page 6 of 21 Created On Tue Apr 05 00:41:41 IST 2016 6 of 21 C/SCA/12002/2001 JUDGMENT land, has an interest over it, which ought to be protected.
5. In the above factual background, learned counsel for the respective parties have made detailed submissions before this Court.
6. Mr.Chirag B. Patel, learned advocate appearing for Mr.B.S.Patel, on behalf of the petitioners, has submitted that respondent No.1 has passed the impugned order without considering the fact that the land in question is within the limits of Vadodara Municipal Corporation, therefore, the provisions of the Tenancy Act are not applicable. That respondent No.2, as also the Tribunal, have not considered this aspect in proper perspective, and have ignored the provisions of Section 121 of the Gujarat Town Planning and Urban Development Act, 1976 ("the Town Planning Act"), which clearly provides that wherever the Town Planning Scheme is made applicable, the provisions of the Tenancy Act would not come into play. On the above grounds, it is submitted that the impugned orders suffer Page 5 of 19 HC-NIC Page 7 of 21 Created On Tue Apr 05 00:41:41 IST 2016 7 of 21 C/SCA/12002/2001 JUDGMENT from a basic flaw and are unsustainable in law.
7. Mr.Udit Mehta, learned Assistant Government Pleader appearing for respondents Nos.1 and 2, has supported the impugned orders passed by respondents Nos.1 and 2, by submitting that there are concurrent findings of two revenue authorities and the Tribunal against the petitioners. The impugned orders suffer from no legal infirmity or irregularity, therefore, the petition may be rejected.
8. Mr.Asim J.Pandya, learned counsel for respondents Nos.3 to 5, has strongly opposed the submissions advanced on behalf of the petitioners by submitting that the order of the first respondent is a detailed and reasoned one, having been passed after examining the entire oral and documentary evidence on record.
9. Regarding the applicability of Section 121 of the Town Planning Act, it is submitted by Mr.Pandya that the said provision has been deleted by Gujarat Act No.4 of 1986. Upon its deletion, the provisions of the Tenancy Act Page 6 of 19 HC-NIC Page 8 of 21 Created On Tue Apr 05 00:41:41 IST 2016 8 of 21 C/SCA/12002/2001 JUDGMENT would be applicable to a Town Planning Scheme. This aspect has been dealt with by the revenue authorities and the Tribunal in their respective orders in detail.
10. It is further submitted that there are concurrent findings of three revenue authorities in favour of respondents Nos.3 to 5, declaring them as tenants on the land in question, which may not be interfered with, in exercise of power under Article 226 of the Constitution of India. That, a Writ of Certiorari, as prayed for, is not warranted on the facts and circumstances of the case. It is submitted that a perusal of the impugned orders would show that none of the revenue authorities, or the Tribunal, have exceeded the jurisdiction vested in them, or violated the principles of natural justice. The impugned orders are not perverse and no such averment has been made in the petition. Neither is there an obvious error on the face of the orders to warrant the issuance of a writ of certiorari.
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11. It is contended that unless and until a strong case is made out on the above grounds, which is not the case in the present petition, the said orders may not be disturbed. As no grounds have been made out to sustain the challenge to the impugned orders, the petition may be rejected.
12. Mr.Bipin I. Mehta, learned counsel for respondent No.6, has vehemently submitted that the said respondent is a bona fide purchaser of a part of the land in question, to the extent of land admeasuring 11000 square feet of revenue Survey No.574/1/Paiki, through a registered Sale Deed dated 16.09.2004. The necessary revenue entries have been made in the Record of Rights, pursuant to the execution of the Sale Deed. According to him, respondent No.6 is in possession of the land. It is submitted that before purchasing the land, respondent No.6 had obtained a Title Clearance Certificated dated 25.06.2007, from an advocate. At the time of purchase, the petitioners had title over the land in question and respondents Nos.3 to 5 were not tenants, at the relevant point of time.
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13. It is contended that respondents Nos.3 to 5, while filing Miscellaneous Civil Application No.3326 of 2006, did not array respondent No.6 as a party, though the petitioners had already sold the land to the said respondent. Had this fact been brought to the knowledge of the Court, the order dated 06.10.2003, allowing the petition on the basis of the Consent Terms, may not have been passed.
14. It is further contended by Mr.Mehta that, the Consent Terms contain no stipulation regarding the amount paid to respondents Nos.3 to 5. The petitioners, who were the landlords, ought to have pointed out that they have sold the land to respondent No.6, which was not done. Respondent No.6 came to know of the pendency of the petitioner at a later stage and filed the application for joining as respondent.
15. It is submitted that the interest of respondent No.6, who is a genuine purchaser having paid full consideration to the petitioners, may be protected. The petitioner landlords had title Page 9 of 19 HC-NIC Page 11 of 21 Created On Tue Apr 05 00:41:41 IST 2016 11 of 21 C/SCA/12002/2001 JUDGMENT over the land when it was sold to respondent No.6 as the tenants (respondents Nos.3 to 5) had waived their rights by way of the Consent Terms.
16. The Court is informed by Mr.Asim Pandya, learned counsel for respondents Nos.3 to 5, that the said respondents have instituted a Civil Suit challenging the Sale Deed executed by the petitioners in favour of respondent No.6, which is pending.
17. This Court has heard learned counsel for the respective parties at length, perused the averments made in the petition, the contents of the other pleadings and the documents on record.
18. With regard to the submission advanced on behalf of the petitioners that the Town Planning Act would be applicable to the land in question and not the Tenancy Act, it is required to be noted that Section 121, as it then stood in the Gujarat Town Planning and Urban Development Act, 1976, read as below:
"121. Provisions of Tenancy Acts not to apply to areas under town planning scheme -
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The provisions of Bombay Tenancy and Agricultural Lands Act, 1948 (Bom.LXVII of 1948), and the Bombay Tenancy (Vidarbha Region and Kutch Area) Act, 1958 (Bom. XCIX of 1958) as in force for time being, shall not apply to any area included in a town planning scheme under this Act."
19. This provision has now been deleted by Section 5 of the Gujarat Act No.4 of 1986. By its deletion, the bar to the applicability of the Tenancy Act, to areas under the Town Planning Scheme, has been removed. The result is, that the Tenancy Act would be applicable to areas included in a Town Planning Scheme. This legal position, flowing from the deletion of Section 121 of the Town Planning Act, cannot be disputed. The submissions advanced by learned counsel for the petitioners in this regard, therefore, cannot be accepted. Both the first and the second respondents, have taken this aspect into consideration and rendered specific findings thereupon. These findings have been confirmed by the Tribunal, in its order. In the view of this Court, no flaw can be found in the legal position that after the deletion of Page 11 of 19 HC-NIC Page 13 of 21 Created On Tue Apr 05 00:41:41 IST 2016 13 of 21 C/SCA/12002/2001 JUDGMENT Section 121 in the Town Planning Act, the provisions of the Tenancy Act would be applicable to areas under the Town Planning Scheme. Both the revenue authorities and the Tribunal have rightly arrived at this conclusion.
20. A perusal of the impugned orders passed by the revenue authorities and the Tribunal, would indicate, that it has been the case of respondents Nos.3 to 5 throughout the proceedings, that they have been cultivating the land in question, as tenants. The order of the first respondent discusses, in detail, the evidence on record, both oral and documentary. On the basis of the said evidence, respondent No.1 has arrived at the conclusion that respondents Nos.3 to 5 have been cultivating the land for the past twentyfive years and are in possession thereof. After discussing the evidence in detail, respondent No.1 has declared respondents Nos.3 to 5 as tenants over the land in question, under the provisions of Section 70 B of the Tenancy Act. The second respondent Page 12 of 19 HC-NIC Page 14 of 21 Created On Tue Apr 05 00:41:41 IST 2016 14 of 21 C/SCA/12002/2001 JUDGMENT has, in his order, also discussed the evidence on record, while confirming the order of respondent No.1. Both the orders passed by respondents Nos.1 and 2 have been upheld by the Tribunal, vide the impugned order dated 07.03.2001. In the said order as well, there is a detailed discussion regarding the evidence on the basis of which respondents Nos.3 to 5 have been declared as tenants. After minutely scrutinising the orders passed by respondents Nos.1 and 2, the Tribunal has correctly arrived at the conclusion, that there is no justification to interfere with the said orders and has proceeded to reject the revision application preferred by the petitioners.
21. In the view of this Court, the findings arrived at by respondents Nos.1 and 2, as confirmed by the Tribunal, are just and proper on the facts and circumstances of the case and the evidence on record. Moreover, they are supported by the legal position that has followed the deletion of Section 121 of the Town Planning Act. No interference is, therefore, warranted from this Page 13 of 19 HC-NIC Page 15 of 21 Created On Tue Apr 05 00:41:41 IST 2016 15 of 21 C/SCA/12002/2001 JUDGMENT Court.
22. There are concurrent findings of two revenue authorities and the Tribunal against the petitioners and in favour of respondents Nos.3 to 5. The impugned orders suffer from no legal infirmity, irregularity or perversity. None of the authorities passing these orders have exceeded their jurisdiction in any manner. Full opportunity of hearing has been granted to the petitioners. This Court, therefore, does not consider the challenge advanced by the petitioners to the impugned orders, to be a fruitful one.
23. Learned counsel for respondent No.6, who is the purchaser of the land from the petitioners, has vehemently submitted that the interest of the said respondent should be protected as, according to him, the land was purchased at a point of time when the petitioners had title over the land and respondents Nos.3 to 5 had relinquished their status as tenants by entering into the Consent Terms with the petitioners Page 14 of 19 HC-NIC Page 16 of 21 Created On Tue Apr 05 00:41:41 IST 2016 16 of 21 C/SCA/12002/2001 JUDGMENT before this Court. This resulted in the quashing and setting aside of the orders that are challenged in the present petition. Learned counsel for respondent No.6, has mainly based his submissions on the aspect that he is a genuine purchaser who has paid full consideration and purchased a part of the land, namely Revenue Survey No.574/1/Paiki, through a registered Sale Deed dated 16.09.2004. Pursuant thereto, revenue entries have been made in the Record of Rights. As mentioned earlier, the petition was disposed of, by order dated 06.10.2003, on the basis of the Consent Terms arrived at between the parties. Respondents Nos.3 to 5 herein, thereafter filed Miscellaneous Civil Application No.3326 of 2006 for the review and recall of the said order, on the ground that the Consent Terms were obtained fraudulently and the petitioners have not acted in accordance with them. This Court, vide the order dated 24.08.2007, set aside the order dated 06.10.2003, restored the petition to its original status on file. Respondent No.6 did not Page 15 of 19 HC-NIC Page 17 of 21 Created On Tue Apr 05 00:41:41 IST 2016 17 of 21 C/SCA/12002/2001 JUDGMENT challenge the order dated 24.08.2007, recalling the order dated 06.10.2003.
24. A purchaser of land has to be vigilant and aware of the entire history attached to the land he intends to purchase. It is not possible to believe that respondent No.6 did not know of the tenancy of respondents Nos.3 to 5 over the land which he purchased, or of the orders passed by the revenue authorities and the Tribunal in favour of respondents Nos.3 to 5. The pendency of the writ petition would also be in the knowledge of respondent No.6. After having challenged the orders declaring respondents Nos.3 to 5 as tenants and after fighting a long, legal battle for years, the petitioners landlords entered into Consent Terms with respondents Nos.3 to 5 tenants. This Court passed an order quashing the orders of the revenue authorities and the Tribunal on 06.10.2003 and, almost immediately thereafter, the petitioners executed a Sale Deed dated 16.09.2004 in favour of respondent No.6. This would go to show that the petitioners have Page 16 of 19 HC-NIC Page 18 of 21 Created On Tue Apr 05 00:41:41 IST 2016 18 of 21 C/SCA/12002/2001 JUDGMENT derived advantage from the land which they would never have been able to, had the orders of the Revenue Authorities and the Tribunal stood as they were. The said orders were set aside by this Court on the basis of the Consent Terms and not on merits. The orders were restored when the petition was restored to file, by passing a reasoned order, as the Court was of the view that the Consent Terms were obtained fraudulently.
25. The main grievance of learned counsel for respondent No.6 can be said to be directed against the petitioners, who have sold the land to him, through their Power of Attorney, when respondents Nos.3 to 6 had been declared tenants over the said land. The aspect that the petition was disposed of on the basis of the Consent Terms and the impugned orders stood quashed when the Sale Deed was executed, would have no significance now, when the order disposing of the petition on the basis of the Consent Terms, has been recalled and the challenge to the impugned orders has been revived. It was open to Page 17 of 19 HC-NIC Page 19 of 21 Created On Tue Apr 05 00:41:41 IST 2016 19 of 21 C/SCA/12002/2001 JUDGMENT respondent No.6 to have challenged the order dated 24.08.2007 at the relevant point of time but he did not do so.
26. If respondent No.6 has any grievance against the petitioners, he can take recourse to appropriate proceedings before the appropriate forum. The transaction between the petitioners and respondent No.6 does not affect the impugned orders, which do not suffer from any legal infirmity. The said orders, based on the provisions of the Tenancy Act, cannot be set aside merely on the basis of the grievance which respondent No.6 may have against the petitioners. The socalled `interest' of respondent No.6 cannot be a ground to oust the legally declared tenants from the land in question, which is the attempt made by both the petitioners and respondent No.6. There may be more to the matter than meets the eye.
27. Having considered the above aspects, in conclusion, this Court is of the considered view that the challenge raised by the petitioners to Page 18 of 19 HC-NIC Page 20 of 21 Created On Tue Apr 05 00:41:41 IST 2016 20 of 21 C/SCA/12002/2001 JUDGMENT the impugned orders passed by respondents Nos.1 and 2, as well as the Tribunal, cannot be sustained.
28. The petition, being devoid of merit, deserves to be rejected. It is, accordingly, rejected. Rule is discharged. There shall be no orders as to costs.
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