Gujarat High Court
Madhuben Nagindas Jariwala & 2 vs State Of Gujarat & on 17 February, 2016
Author: Anant S. Dave
Bench: R.Subhash Reddy, Anant S. Dave
C/LPA/57/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 57 of 2016
In
SPECIAL CIVIL APPLICATION NO. 19781 of 2015
With
CIVIL APPLICATION NO. 1014 of 2016
In
LETTERS PATENT APPEAL NO. 57 of 2016
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MADHUBEN NAGINDAS JARIWALA & 2....Appellant(s)
Versus
STATE OF GUJARAT & 11....Respondent(s)
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Appearance:
MR RR MARSHALL SENIOR ADVOCATE WITH MR ARPIT A KAPADIA,
ADVOCATE for the Appellant(s) No. 1 - 3
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CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE ANANT S. DAVE
Date : 17/02/2016
ORAL ORDER
(PER : HONOURABLE MR.JUSTICE ANANT S. DAVE) 1 The challenge in this appeal filed under clause 15 of the Letters Patent is the order dated 01.12.2015 passed by the learned Single Judge in Special Civil Application No.19781 of 2015, whereby prayers of the petitioner to issue a writ of prohibition or any other appropriate writ, order or direction to quash and set aside Page 1 of 13 HC-NIC Page 1 of 13 Created On Sun Feb 21 01:42:33 IST 2016 C/LPA/57/2016 ORDER proceedings of Tenancy Case No.3 of 2014 pending before the Mamlatdar and ALT (Tenancy) Choryasi Prant, District Surat along with issuance of writ of mandamus to declare the Tenancy Case No.3 of 2014 before the very court under Section 32G of The Bombay Tenancy & Agricultural Lands Act, 1948 [for short, `Tenancy Act, 1948'] is not maintainable by holding that the land is included in the urban agglomeration as the land is now survey No.407/2 of Mouje Dumas, Taluka Choryasi, District Surat. Inter alia, it was prayed to declare that the declaration under Section 70(b) of the Tenancy Act, 1948 made by the authority in favour of respondent Nos. 6 and 7 is void ab initio as neither notice nor opportunity of hearing was given to the appellants / petitioners. The appellants have also prayed for interim and ancillary reliefs.
2 The learned Single Judge upon adverting to the facts stated in the petition, submissions made by learned counsels for the parties and referring to the earlier proceedings undertaken by one of the respondents under Section 70(b) of the Tenancy Act, 1948 held that the petition was de void of merit and to arrive at such conclusion cogent reasons were assigned.
3 Mr. R.R.Marshall, learned Senior Advocate appearing with Mr. Kapadia, learned advocate for the appellants, would contend that Page 2 of 13 HC-NIC Page 2 of 13 Created On Sun Feb 21 01:42:33 IST 2016 C/LPA/57/2016 ORDER admittedly in the proceedings under Section 70(b) of the Tenancy Act, 1948, the appellants were not given any opportunity of being heard since they were not joined as party, and therefore, the findings arrived in the proceedings initiated by aggrieved persons, who happened to be brother of the appellants, are not binding upon the appellants and the scope of inquiry is always open to challenge at any point of time. The above writ petition came to be rejected, but the fact remains that the appellants were not party at all to those proceedings up to this Court. Inter alia, it is contended that the learned Judge has failed to consider that the appellants being proper and necessary parties being owners, occupiers and interested persons in the land in question pendency of application for joining party in Tenancy Application No.21 of 2009 filed under Section 32G of the Tenancy Act, 1948 would not be a ground by itself to reject the writ petition in which substantial challenge was to the proceedings undertaken earlier before the revenue authorities as well as this Court. It is further submitted that by virtue of appellants being daughters of original owner Nagindas Jariwala, who owned the land and further by virtue of amendment in Section 6 of the Hindu Succession Act in the year 2006, right of female inheritor is now statutorily recognized, the prayer made in the petition ought to have been considered in favour of the appellants. It is Page 3 of 13 HC-NIC Page 3 of 13 Created On Sun Feb 21 01:42:33 IST 2016 C/LPA/57/2016 ORDER next submitted that pursuant to subject land included in the urban agglomeration and plans sanctioned by the State of Gujarat under Sections 29, 34 and 49 of the Gujarat Town Planning Urban Development Act, 1976, the prayers before the learned Single Judge were within the time and same ought to have been considered accordingly. It is further submitted that for the land included in the urban agglomeration and amalgamation entry was also mutated in the revenue record and permission under Section 29 of the Gujarat Town Planning Urban Development Act, 1976 is granted by Surat Urban Development Authority, way back in the year 2004 i.e before the order under Section 70[b] of the Tenancy Act, 1948 came to be approved by the higher authority, now the inquiry under Section 32G of the Tenancy Act, 1948 will become redundant and, therefore, even application for joining party filed would serve no purpose. Collectively based on the above grounds, it is submitted that the order passed by the learned Single Judge deserves to be quashed and set aside.
4 Heard learned Senior Advocate for the appellants and perusal the record of the case, including order passed by the revenue authorities in proceedings under Section 70(b) of Tenancy Act, 1948. We are benefited by oral order dated 10.03.2014 passed by the learned Single Judge dismissing Special Civil Application No.2220 of Page 4 of 13 HC-NIC Page 4 of 13 Created On Sun Feb 21 01:42:33 IST 2016 C/LPA/57/2016 ORDER 2011 preferred by father of the appellants herein i.e. Ramanlal Nagindas Jariwala under Articles 226 and 227 of the Constitution of India challenging the orders dated 22.06.2009 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BS/53/2003 as well as the order dated 28.06.2010 passed by the Gujarat Revenue Tribunal in Review Appication No.TEN/CS/1/2010. For the sake of convenience, order dated 22.06.2009 is reproduced herewith:
"1. By way of this petition under Articles 226 and 227 of the Constitution of India, the petitioner has prayed for an appropriate writ, order and/or direction, quashing and setting aside the impugned judgment and order dated 22/06/2009 passed by the Gujarat Revenue Tribunal in Revision Application No.TEN/BS/53/2003 as well as the order dated 28/06/2010 passed by Gujarat Revenue Tribunal in Review Application No.TEN/CS/1/2010.
2. Facts leading to the present petition, in nutshell, are as under:
One Dahyabhai Vastabhai submitted the application before Mamlatdar & ALT, Choryasi declaring him as tenant/ganotia under Section 70(b) of the Bombay Tenancy Act. The Mamlatdar & ALT conducted the inquiry and by order dated 28/02/1989 in Tenancy Case No.72/88 decided to dismiss the said application by observing that though the said Dahyabhai was cultivating the land but it was not proved that he was cultivating the land in question as tenant. Being aggrieved by and dissatisfied with the order dated 28/02/1989 passed by Mamlatdar & ALT, Choryasi, the said Dahyabhai Vastabhai preferred Appeal before Assistant Collector, Page 5 of 13 HC-NIC Page 5 of 13 Created On Sun Feb 21 01:42:33 IST 2016 C/LPA/57/2016 ORDER Choryasi being Tenancy Appeal No.91/1989, who by impugned order dated 20/12/1989 allowed the said appeal and remanded the matter to the concerned Mamlatdar & ALT, Choryashi.
Being aggrieved by and dissatisfied with the order passed by the Assistant Collector, Choryasi, Dahyabhai preferred Revision Application before Gujarat Revenue Tribunal, which came to be dismissed by the Tribunal by judgement and order dated 19th July,1991. That thereafter and before the said application is finally decided and disposed of by the Mamlatdar & ALT, Choryasi, the said Dahyabhai died and, therefore, respondent Nos.1 & 2 claiming to be heirs of said Dahyabhai preferred application u/s.70(b) of the Bombay Tenancy Act before Mamlatdar & ALT, Choryasi to declare them as tenants as heirs of deceased Dahyabhai.
3. It appears that Notices were served upon the father of the petitioner i.e. Ramanbhai Nagindas Jariwala. However, he did not appear and did not contest the said application and on appreciation of evidence, the Mamlatdar & ALT, Choryasi allowed the said application declaring respondent Nos.1 and 2 as tenants of the land in question. It appears that the said order passed by Mamlatdar & ALT, Choryasi was taken in Suo motu revision by the Collector, Surat and the Collector, Surat confirmed the order passed by Mamlatdar & ALT, Choryasi declaring respondent Nos.1 & 2 as tenants of the land in question.
4. Despite the above, father of the petitioner preferred Appeal before Deputy Collector (Land Reforms) challenging the order dated 28/10/1997 passed by Mamlatdar & ALT, Choryasi in Tenancy Case No.11/1997, which was numbered as Tenancy Appeal No.49/2000 and the said appeal came to be dismissed by Deputy Collector (Land Reforms), Choryasi by order dated 30/10/2002 by observing that as the order impugned before him, was already Page 6 of 13 HC-NIC Page 6 of 13 Created On Sun Feb 21 01:42:33 IST 2016 C/LPA/57/2016 ORDER confirmed by the Collector, he has no jurisdiction and authority to consider the legality and validity of the order passed by the Mamlatdar & ALT, Choryasi, which is already confirmed by the Collector, Surat.
Thereafter, being aggrieved by and dissatisfied with the order dated 30/10/2002 passed by the Deputy Collector (Land Reforms), Surat in Tenancy Appeal No.49/2000, the petitioner being heir of Ramanbhai preferred Revision Application before the Gujarat Revenue Tribunal, which was numbered as Revision Application No.TEN/BS/53/2003 and after giving an opportunity to all concerned, Gujarat Revenue Tribunal by judgement and order dated 22/06/2009 dismissed the said Revision Application. It appears that thereafter the petitioner preferred Review Application before the Gujarat Revenue Tribunal, which was numbered as Review Application No.TEN/CS/1/2010, which also came to be dismissed by Gujarat Revenue Tribunal vide order dated 28/06/2010. Being aggrieved by and dissatisfied with the aforesaid two orders passed by the Gujarat Revenue Tribunal, petitioner heir of the Ramanbhai has preferred the present petition under Article 227 of the Constitution of India.
5. Ms.Brahmbhatt, learned advocate appearing on behalf of the petitioner has vehemently submitted that the impugned order passed by Gujarat Revenue Tribunal rejecting the Review Application summarily on the technical ground of delay, deserves to be quashed and set aside. It is further submitted by learned advocate appearing on behalf of the petitioner that findings given by the learned Tribunal that Ramanlal and his advocate had in one and other way admitted that Dahyabhai Vastabhai is in possession of the said land, is against the evidence on record. It is further submitted that all the authorities below have materially erred in declaring respondent Nos.1 and 2 as tenants of the land in question. By making above submissions, it is requested to allow Page 7 of 13 HC-NIC Page 7 of 13 Created On Sun Feb 21 01:42:33 IST 2016 C/LPA/57/2016 ORDER the present petition.
6. Heard learned advocates appearing on behalf of the respective parties at length. At the outset, it is required to be noted that before passing the order by Mamlatdar & ALT declaring respondent Nos.1 and 2 as tenants of the land in question, Notices were served upon the father of the petitioner i.e. Ramanbhai, who did not appear and did not contest the said application and thereafter on appreciation of evidence, the Mamlatdar and ALT, Choryasi allowed the said application declaring respondent Nos.1 and 2 as tenants of the land in question. That the said order was passed by Mamlatdar & ALT, Choryasi under Section 70B of the Bombay Tenancy Act on 28/10/1997. That at the relevant time, father of the petitioner was alive, who did not challenge the said order. It appears that thereafter the Collector, Surat took the aforesaid order dated 28/10/1997 passed by Mamlatdar & ALT, Choryasi in Suo motu Revision and the Collector, Surat confirmed the order passed by the Mamlatdar & ALT, declaring respondent Nos.1 and 2 as tenants of the land in question.
That thereafter after a period of three years, father of the petitioner preferred Appeal before the Deputy Collector (Land Reforms), challenging the order dated 28/10/1997 passed by Mamlatdar & ALT in Tenancy Case No.11/1997, being Tenancy Appeal No.49/2000 and the said appeal came to be dismissed by Deputy Collector (Land Reforms), vide order dated 30/10/2002 by observing that the order impugned before him, was already confirmed by the Collector and he has no authority to consider legality and validity of the order passed by the Mamlatdar & ALT, Choryasi. That thereafter, being aggrieved by and dissatisfied with the order passed by the Deputy Collector (Land Reforms), Surat, the petitioner has preferred Revision Application, which was dismissed by Gujarat Revenue Page 8 of 13 HC-NIC Page 8 of 13 Created On Sun Feb 21 01:42:33 IST 2016 C/LPA/57/2016 ORDER Tribunal confirming the orders passed by both the authorities below. There are concurrent findings of facts given by all the authorities below holding that the original applicant was cultivating the land in question. It is to be noted that even the petitioner herein also admitted that the original applicant was cultivating the land in question. However, according to him, he was not cultivating the same as tenant. The observations and findings given by learned Tribunal are on appreciation of evidence and considering the entire record inclusive of Mamlatdar's record, which are not required to be interfered with by this Court in exercise of power under Article 227 of the Constitution of India. The order passed by the learned Tribunal is a well reasoned order, which is not required to be interfered with by this Court in exercise of power under Article 227 of the Constitution of India. It is to be noted that as such father of the petitioner, who was served with the Notice of the proceedings before Mamlatdar & ALT did not appear and did not contest the same and, thereafter, on appreciation of evidence, the Mamlatdar & ALT declared respondent Nos.1 and 2 as tenants as heirs of original tenant.
7. In view of the above and for the reasons stated hereinabove, the petition deserves to be dismissed and is accordingly dismissed. No costs".
4.1 From the above, it is clear that dated 28.02.1989 passed in Tenancy Case No.72/88 was carried in appeal before the Assistant Collector in Tenancy Appeal No.91/89, which came to be allowed. However, the aggrieved person preferred revision application before Gujarat Revenue Tribunal, which came to be dismissed by the order dated 19.07.1991 and thereafter application came Page 9 of 13 HC-NIC Page 9 of 13 Created On Sun Feb 21 01:42:33 IST 2016 C/LPA/57/2016 ORDER to be finally decided and disposed of by the learned Mamlatdar and ALT and in the second round of litigation undertaken by the parties, up to this court it was held that declaration of tenant under provisions of Section 70(b) of the Tenancy Act, 1948 was just and proper and no illegality was committed.
4.2 Thus, by the above order dated 10.03.2011 passed in Special Civil Application No.2220 of 2011, legality and validity of the proceedings undertaken under the provisions of Section 70(b) of the Tenancy Act, 1948 attained finality. After about 4 years, now the appellants being daughters have lodged their claim by challenging the above proceedings, for which learned Single Judge has given cogent reasons and for the sake of convenience, paragraphs 9, 10 and 11 of the order dated 01.12.2015 are reproduced herein below:
"[9] The Court finds that claim of the petitioners as regards their rights in the land in question could not be gone into in the present petition filed under Article 226 and 227 of the Constitution of India. It appears that the petitioners just sat on fence and onlooked the proceedings till finalized by High Court on declaration under section 70(b). Now when the Mamlatdar has issued notice to the original owners under section 32G for fixing purchase price, the petitioners have come with the present petition not only seeking to quash notice issued by the Mamlatdar but to declare that proceedings initiated by the Mamlatdar under section 32G Page 10 of 13 HC-NIC Page 10 of 13 Created On Sun Feb 21 01:42:33 IST 2016 C/LPA/57/2016 ORDER are not maintainable. No such prayers could be granted at the instance of the petitioners who appear to have filed present petition with oblique motive.
[10] Learned advocate Mr.Kapadia however, relying on the judgment of this Court in the case of Pirsahabmiya Mohmedmiya v/s. Somabhai Haribhai Patel and Anr. reported in 1985 GLH 608 read Head Note (A) and submitted that in the inquiry under Section 32G of the Act, not only landlord and tenant, but all interested persons are entitled to be heard. It is required to note that this Court is not examining the issue whether the petitioners could be said to be interested persons or not in the proceedings under section 32G. The application of the petitioners to be joined as parties in the proceedings under section 32G is still pending before the Mamlatdar and therefore, there is no question of considering decision rendered by this Court in the said case.
[11] In the case of Naginbhai Nathubhai Modi alias Bhagar v/s. Naginbhai Ranchhodbhai and Ors. reported in (1997) 10 SCC 407 relied by learned advocate Mr. Kapadia, the Hon'ble Supreme Court held that in order to stake the claim of becoming the owner of a tenanted land, a tenant is required to prove that he was cultivating possession of the tenanted area on the tillers' day i.e. 01.04.1957. Such issue also does not arise in the present case as issue under section 70(b) was already decided after hearing landlords and if the petitioners had any claim in the lands in question or interest in the lands in question, the petitioners could have challenged the orders made under section 70(b) of the Act and affirmed upto this Court".
4.3 Thus, it is not in dispute that proceedings of Section 70(b) of the Tenancy Act, Page 11 of 13 HC-NIC Page 11 of 13 Created On Sun Feb 21 01:42:33 IST 2016 C/LPA/57/2016 ORDER 1948 attained finality up to this court. Not only that but even father of the petitioner was also given notice by the competent authority in which no grievance whatsoever was raised. The proceedings under Section 70(b) of the Tenancy Act, 1948 were initiated as early as in the year 1989 and it is unbelievable that appellants would be oblivious of the above fact for about 35 years.
Section 70(b) of The Bombay Tenancy & Agricultural Lands Act, 1948, reads as under:
"70. Duties of the Mamlatdar [b] to decide whether a person is or was a tenant or a protected tenant for a permanent tenant".
4.4 In view of the above, the observation of learned Single Judge that litigation undertaken by the appellants at the behest of some interested persons cannot be said to be improper and needs to be interfered in any manner whatsoever as the land in question originally belong to father of the appellants for which tenancy litigations are going on for all these years and it cannot be said that the appellants were not aware about it. Even filing of application for joining party under Section 32G is still pending before the Mamlatdar and same shall be considered on the strength of record and Page 12 of 13 HC-NIC Page 12 of 13 Created On Sun Feb 21 01:42:33 IST 2016 C/LPA/57/2016 ORDER evidence that may surface before that authority and simply because now the land in question included and formed part of urban agglomeration, is not a ground to declare proceedings under Section 70(b) of the Tenancy Act, 1948 as nullity and to issue writ of prohibition qua pending Tenancy Case No.3/2014.
5 In absence of any merit, this appeal is dismissed.
6 In view of the order passed in the main appeal, no order on Civil Application No.1014 of 2016 and accordingly it stands disposed of.
(R. SUBHASH REDDY, CJ) (ANANT S.DAVE, J.) pvv Page 13 of 13 HC-NIC Page 13 of 13 Created On Sun Feb 21 01:42:33 IST 2016