Gujarat High Court
Shankerbhai Somabhai Prajapati vs State Of Guajrat Thr' Secretary & 3 on 18 October, 2005
Author: M.R. Shah
Bench: M.R. Shah
SCA/21055/2005 1/9 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION No. 21055 of 2005
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SHANKERBHAI SOMABHAI PRAJAPATI - Petitioner(s)
Versus
STATE OF GUAJRAT THR' SECRETARY & 3 - Respondent(s)
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Appearance :
MR AJ PATEL for Petitioner(s) : 1,
GOVERNMENT PLEADER for Respondent(s) : 1,
None for Respondent(s) : 2 - 4.
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CORAM : HONOURABLE MR.JUSTICE M.R. SHAH
Date : 18/10/2005
ORAL ORDER
In this petition under Article 227 of the Constitution of India the petitioner has challenged the legality and validity of the judgment and order passed by the Gujarat Revenue Tribunal dated 30th August 2005 in Revision Application TEN.B.A. No. 623/1996 in allowing the said revision application by quashing and setting aside the order passed by the Deputy Collector (LR), Appeals, Ahmedabad dated 11.4.1996 in Tenancy Appeal No. 139/1995 by which the Deputy Collector has quashed and set aside the order passed by the Mamlatdar and ALT dated 24.7.1989 in appeal which was filed after a period of 8 years of passing the order by the Mamlatdar and ALT under Section 84C of The Bombay Tenancy and Agricultural Lands Act.
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SCA/21055/2005 2/9 ORDER
2. The dispute is with regard to land bearing Survey No. 178/2 situate at Village-Thaltej, Taluka- Dascroi, District-Ahmedabad and the petitioner purchased the said disputed land by registered Sale Deed dated 15.5.1967. It appears that the Mamlatdar and ALT, City initiated proceedings under Section 84- C of The Bombay Tenancy and Agricultural Lands Act [hereinafter referred to as "the Tenancy Act") as according to the Mamlatdar the transaction between the petitioner and the original landowner was hit by Section 63 of the Tenancy Act. It also appears from the record that the petitioner as well as the landowner were served with notices and even the petitioner appeared through his Advocate. However, inspite of the fact that the matter was adjourned time and again neither the petitioner nor his Advocate remained present and ultimately by order dated 24.7.1989 the Mamlatdar and ALT City, declared the said transaction as invalid and in violation of Section 63 of the Tenancy Act and the land was ordered to be vested in the State Government with the further order to dispose it of under original Section 84-C of the Act. It also appears from the record that necessary Entry was mutated in the Revenue record with regard to the said order dated 24.7.1989 and vesting the land in the State Government in the year 1999 itself. It also further appears that subsequently after the aforesaid order of 24.7.1989 a further consequential order came to be passed by the Mamlatdar and ALT, Dascroi under Section 84-C(4) of the Act disposing of the land in question and the HC-NIC Page 2 of 9 Created On Thu Oct 06 01:41:13 IST 2016 SCA/21055/2005 3/9 ORDER land came to be allotted in favour of the respondent No.5 Raimalbhbai Desai by order dated 19.7.1993 in Tenancy Case No. 79/1993; the respondent No.5 also paid the price on 4.8.1993; and even a Sale Certificate in Form No. 2-A under Rule 21(A) of the Bombay Tenancy Rules also came to be issued in his favour on 11.11.1993. After a period of 8 years of passing the order by the Mamlatdar and ALT City dated 24.7.1989 in declaring the sale transaction between the petitioner and the original landowner as invalid and in violation of Section 63 of the Act and vesting the land in the State Government, and after a period of 2 years of passing of the order under Section 84- C(4) of the Act, i.e., disposing of the land and allotting it in favour of respondent No.5, the petitioner preferred appeal before the Deputy Collector (Land Reforms), Ahmedabad being Appeal No. 139/1995, and the Deputy Collector (Land Reforms), Ahmedabad, by his order dated 11th April 1996 not only condoned the delay but quashed and set aside the order passed by the Mamlatdar and ALT City dated 24.7.1989 under Section 84-C of the Tenancy Act as well as the order passed by the Mamlatdar and ALT, Dascroi, dated 19.7.1993 allotting the land in favour of respondent No.5. Being aggrieved and dissatisfied with the order passed by the Deputy Collector, Land Reforms, Ahmedabad, dated 11th April 1996 in Tenancy Appeal No. 139 of 1995, the respondent No.5 herein preferred revision application before the Gujarat Revenue Tribunal being Revision Application TEN.B.A No. 623/1996 and the Tribunal by judgment and order HC-NIC Page 3 of 9 Created On Thu Oct 06 01:41:13 IST 2016 SCA/21055/2005 4/9 ORDER dated 30th August 2005 allowed the said revision application quashing and setting aside the order passed by the Deputy Collector (Land Reforms), Ahmedabad, dated 11th April 1996 in Tenancy Appeal No. 139/1995 and restoring the orders passed by the Mamlatdar and ALT-City, Dascroi dated 24.7.1989 as well as the order passed by the Mamlatdar and ALT, Dascroi, dated 19.7.1993. Being aggrieved and dissatisfied with the judgment and order passed by the Gujarat Revenue Tribunal dated 30th August 2005 in Revision Application TEN.B.A. No. 623/1996, the petitioner has preferred the present Special Civil Application under Article 227 of the Constitution of India.
3. Shri AJ Patel, learned advocate appearing on behalf of the petitioner has vehemently submitted that when the Deputy Collector has found that the order passed by the Mamlatdar & ALT under Section 84C of the Act was illegal inasmuch as the said proceedings were initiated in the year 1989 after unreasonable period and unfortunately the learned advocate appearing on behalf of the petitioner did not remain present before the Mamlatdar and ALT in a proceeding under Section 84-C of the Act and for the negligence and/or fault on the part of the Advocate the petitioner should not be made to suffer. For that purpose, he has relied upon the judgment of the Hon'ble Supreme Court in the case of State of West Bengal V. M.R. Mondal and Another, reported in AIR HC-NIC Page 4 of 9 Created On Thu Oct 06 01:41:13 IST 2016 SCA/21055/2005 5/9 ORDER 2001 S.C. Page 3471 and submitted that nothing is on record to show that the petitioner was served with the order passed by the Mamlatdar and ALT dated 24.7.1989 and therefore the Deputy Collector was justified in entertaining the appeal after a period of 8 years and as the same was filed after the petitioner came to know about the order of 1989. It is also further submitted that the petitioner is in possession of the land in question and no order has been passed as contemplated under Section 73 of the Tenancy Act and/or Section 84C(4) of the Tenancy Act for restoring possession of the land in question and/or taking over possession from the petitioner after 1989 and/or 1993 and therefore it is requested to allow the present Special Civil Application.
4. I have gone through the order passed by the Mamlatdar and ALT, Dascroi, as well as the order passed by the Deputy Collector (Land Reforms), Ahmedabad, and the judgment and order passed by the Gujarat Revenue Tribunal. It is not in dispute that the order of 1989 passed by the Mamlatdar & ALT City under Section 84-C of the Act declaring the transaction between the petitioner and the original landowner as invalid and in breach of Section 63 of the Tenancy Act and vesting the same in the State Government came to be challenged by the petitioner after a period of 8 years. It is also required to be noted that in the Revenue record the entry was already mutated with regard to the order passed by the Mamlatdar and ALT, City Taluka dated 24th July HC-NIC Page 5 of 9 Created On Thu Oct 06 01:41:13 IST 2016 SCA/21055/2005 6/9 ORDER 1989. Under the circumstances it cannot be believed that the petitioner was not aware of the order passed by the Mamlatdar and ALT City Taluka dated 24th July 1989 in 84-C Tenancy Case No. 61/1987. It is also required to be noted that even after 1989 a further order came to be passed by the Mamlatdar and ALT, Dascroi, under Section 84-C(4) of the Act and the land in question came to be allotted in favour of respondent No.5 herein by order dated 19th July 1993 and respondent No.5 has paid the purchase price and even the sale certificate in his favour came to be issued on 11.11.1993 in Form No. 2A under Rule 21(3) of the Bombay Tenancy Rules. Thus, even before the petitioner challenged the order of 1989 before the Deputy Collector in the year 1995 order under Section 84-C(4) was already passed in the year 1993 and the land was allotted in favour of respondent No.5 in the year 1993, and even the petitioner has also challenged the order of 1993 before the Deputy Collector (Land Reforms) along with challenging the order of 1989. In view of the above, when third party's right was already created and the land was already transferred/allotted in favour of respondent No.5 the Deputy Collector was not justified in entertaining the said appeal after a period of 8 years of passing of the original order particularly when a further order under Section 84-C(4) was already passed. On going through the order passed by the Deputy Collector (Land Reforms) what has been weighed with the Deputy Collector is that there is no acknowledgment to show that the petitioner was HC-NIC Page 6 of 9 Created On Thu Oct 06 01:41:13 IST 2016 SCA/21055/2005 7/9 ORDER actually served with the order passed by the Mamlatdar and ALT dated 24.7.1989. However, the Deputy Collector has not considered the fact that even necessary entry was already posted in the Revenue record with regard to the order passed by the Mamlatdar and ALT City Taluka dated 24.7.1989 in declaring the sale invalid and vesting the land in the State Government in the year 1989 itself. As rightly held and considered by the Gujarat Revenue Tribunal in its judgment, it is not believable that the petitioner was not aware of even the aforesaid Entry, as even at the time of payment of the revenue he was supposed to have knowledge of the said Entry. Under the circumstances and considering the above facts of the case, the Deputy Collector was not justified in entertaining the appeal after a period of 8 years more particularly when the order under Section 84-C(4) was passed whereby the land was allotted in favour of respondent No.5 and the sale certificate was issued in his favour on payment of purchase price. Under the provisions of Tenancy Act issuance of certificate is a conclusive proof by which a person in whose in favour the land is allotted becomes the owner.
4.1. So far as the reliance placed upon the judgment of the Hon'ble Supreme Court on the proposition that in case of negligence on the part of an advocate a litigant should not suffer, is concerned, the same will not be of any assistance to the petitioner, as in the present case third party's HC-NIC Page 7 of 9 Created On Thu Oct 06 01:41:13 IST 2016 SCA/21055/2005 8/9 ORDER right is already created and in the meantime the land is already allotted in favour of the respondent No.5 and on payment of purchase price sale certificate in his favour is also issued. So far as the reliance placed upon Section 73 of the Tenancy Act is concerned, the said argument is required to be rejected outright as Section 73 of the Act would be applicable with regard to execution of some orders passed by the Mamlatdar and in execution possession is to be restored. In the present case, such a situation is not there. Though it is the contention on behalf of the petitioner that the petitioner is in possession of the land in question inspite of the fact that the land is allotted to the respondent No.5 as far back as in 1993, no documentary evidence has been produced on behalf of the petitioner to establish the same. Not only that but the petitioner has also not produced even the Village Form No. 7/12 for the subsequent years.
5. Considering the aforesaid facts and circumstances when the Gujarat Revenue Tribunal has allowed the Revision Application by quashing and setting aside the order passed by the Deputy Collector (Land Reforms), it cannot be said that the Gujarat Revenue Tribunal has committed any error and/or jurisdictional error much less an error of law which may require interference by this Court in exercise of power under Article 227 of the Constitution of India. The judgment and order passed by the Gujarat Revenue Tribunal is neither illegal, HC-NIC Page 8 of 9 Created On Thu Oct 06 01:41:13 IST 2016 SCA/21055/2005 9/9 ORDER nor perverse and/or contrary to the evidence on record and therefore the same is not required to be interfered with by this Court exercising power under Article 227 of the Constitution of India. On the contrary, it appears that the Gujarat Revenue Tribunal is justified in allowing the revision application and considering the order passed by the Deputy Collector (Land Reforms) by which the Deputy Collector had entertained the appeal after a period of 8 years and more particularly when in the meantime the order passed by the Mamlatdar and ALT City Taluka was implemented and a further order came to be passed under Section 84-C (4) of the Act disposing of the land and allotting in favour of the respondent No.5.
6. For the foregoing reasons, the present Special Civil Application is required to be dismissed and it is accordingly dismissed.
[ M.R. Shah, J. ] RMR.
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