Gujarat High Court
Milankumar Ramanlal Shah vs State Of Gujarat on 12 August, 2024
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
NEUTRAL CITATION
C/SCA/11032/2024 ORDER DATED: 12/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11032 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 11512 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 11551 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 11655 of 2024
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MILANKUMAR RAMANLAL SHAH & ANR.
Versus
STATE OF GUJARAT & ANR.
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Appearance:
MR VIMAL A PUROHIT(5049) for the Petitioner(s) No. 1,2
SHRENIK R JASANI(9486) for the Petitioner(s) No. 1,2
for the Respondent(s) No. 2
MR JK SHAH AGP for the Respondent(s) No. 1 (SCA No.11032/2024)
MR NIKUNJ KANARA AGP for the Respondent(s) No.1 (SCA No.11512,
11551 and 11655 of 2024)
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 12/08/2024
COMMON ORAL ORDER
1. Heard learned advocate Mr. Vimal Purohit for the petitioners and learned AGPs Mr. J.K. Shah and Mr. Nikunj Kanara for the respondent No.1.
2. Since the facts of all four petitions are similar, all four matters are taken up for hearing jointly.
3. The petitioners, by way of these petitions, challenge notice issued to the petitioners under Section 84(c) of the Gujarat Tenancy and Agricultural Land Act, more particularly, for breach of Section 63 of the Act in question.
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4. Learned AGPs raise a preliminary objection of the maintainability of the writ petitions, more particularly, relying upon the order of the learned Coordinate Bench of this Court dated 05.03.2024 in the first round of litigation with regard to the very issue. Learned AGPs would submit that a perusal of order of learned Coordinate Bench, clearly reflects that the learned Coordinate Bench, had while setting aside the order passed under Section 84(c) of the Tenancy Act, in the first round of proceedings, had remanded the matter back for fresh consideration and whereas there is no liberty reserved in favour of the petitioners to challenge the show cause notice. Learned AGPs would submit that in absence of such a liberty, the present petitions not being maintainable, the same may be rejected.
5. Learned AGPs would also press into service observations of this Court in the decision dated 31.07.2024 in Special Civil Application No.11122 of 2024 in support of their submissions.
6. As against the same, learned advocate Mr. Purohit for the writ petitioners would submit that the learned AGPs are attempting to read the order passed by learned Coordinate Bench, in the first round of proceedings narrowly. Learned advocate Mr. Purohit would submit that the order of this Court clearly reflects that while the learned Coordinate Bench, had set aside the order passed by the Mamlatdar & ALT dated 23.01.2024, and had remanded the matter back to the Mamlatdar, thereafter, the Court had observed that all the rights and contentions of all the parties are kept open. Learned advocate would submit that the said liberty reserved by the Court, would also empower the petitioners to file present writ petitions, more particularly upon a fresh notice being issued.
7. Additionally, learned advocate Mr. Purohit would try and distinguish observations of this Court in the order dated 31.07.2024 in Special Civil Page 2 of 9 Uploaded by Y.N. VYAS(HC00207) on Tue Sep 03 2024 Downloaded on : Fri Sep 06 20:59:20 IST 2024 NEUTRAL CITATION C/SCA/11032/2024 ORDER DATED: 12/08/2024 undefined Application No.11122 of 2024, more particularly by submitting that in the said case, this Court had noted that the learned advocate for the petitioners in the first round of proceedings, had withdrawn the writ petitions. Learned advocate would submit that upon the learned advocate having withdrawn the writ petition, the said petitioner would not be treated as having given up their rights to agitate against the show cause notice and whereas it is submitted by the learned advocate that in the instant case, the matter was disposed of and there was no withdrawal by the petitioners. Learned advocate would therefore, submit that the scope and tenor of the orders passed by the learned Coordinate Benches in both the present petitions as well as in the decision dated 31.07.2024 being completely different, the observations of this Court in the said decision may not come in the aid to the learned AGPs.
8. Heard learned advocates for the respective parties and perused the documents on record including the order passed by learned Coordinate Bench dated 05.03.2024. At this stage, it is observed that since the order dated 05.03.2024 would be very material to understand the scope, ambit and context of the issue in question, therefore, the decision of the learned Coordinate Bench of the said date in Special Civil Application No.675 of 2024 is relatable to Special Civil Application No.11032 of 2024 is reproduced herein below for benefit.
"1. By way of this petition, the petitioners have prayed for the following reliefs:-
(A) YOUR LORDSHIPS may be pleased to issue a writ of prohibition or any other appropriate writ, order or direction may be issued upon the learned Mamlatdar and ALT, Vadodara (Rural) to drop the impugned show cause notice dated 23.03.2023 issued by the learned Mamlatdar and ALT, Vadodara (Rural), in Ganot Case No. 22 of 2017 issued under the provision of Section 84 (C) of the Bombay Page 3 of 9 Uploaded by Y.N. VYAS(HC00207) on Tue Sep 03 2024 Downloaded on : Fri Sep 06 20:59:20 IST 2024 NEUTRAL CITATION C/SCA/11032/2024 ORDER DATED: 12/08/2024 undefined Tenancy and Agricultural Land Act, 1948; (Annexure-A) (B) YOUR LORDSHIP may be pleased to issue a writ of Certiorari quashing and setting aside show cause notice dated 23.03.2023 issued by the learned Mamlatdar and ALT, Vadodara (Rural), in Ganot Case No. 22 of 2017 purportedly issued under the the provision of Section 84 (C) of the Bombay Tenancy and Agricultural Land Act, 1948; (Annexure-A) (BB) YOUR LORDSHIPS may be pleased to issue writ of certiorari or any other appropriate write to quash and set aside the order dated 23.01.2024 passed by the Ld. Mamlatdar & ALT, Vadodara (Rural) in Ganot Case No. 22 of 2017.
(C) Pending hearing and Final Disposal of this Special Civil Application, YOUR LORDSHIPS may be pleased to stay the Implementation, operation and Further proceedings Pursuant to the show cause notice dated 23.03.2023 issued by the learned Mamlatdar and ALT, Vadodara (Rural), in Ganot Case No. 22 of 2017 issued under the the provision of Section 84 (C) of the Bombay Tenancy and Agricultural Land Act, 1948; (Annexure-A) (CC) Pending hearing and final disposal of Special Civil Application, YOUR LORDSHIPS may be pleased to stay the implementation, operation and execution of the order dated 23.01.2024 passed by the Ld. Mamlatdar & ALT, Vadodara (Rural) in Ganot Case No. 22 of 2017.
(D) Any other and further relief that may deem fit by this Hon'ble Court in the interest of justice;
2. At the outset, it is submitted by learned AGP Ms. Shruti Pathak appearing for the respondent - State who is assisted by Mr. M. B. Desai, concerned Mamlatdar and ALT, Vadodara (Rural) who is present in the Court alongwith the original file that certain lapses are noted in the proceedings and therefore, this Court may without assigning any reasons quash and set aside the impugned order dated 23.01.2024 in Tenancy Case No. 22 of 2017.
3. When the Court asked that if there are lapses, who will bear the cost of the litigation, upon instructions from the concerned Mamlatdar and ALT Mr. M. B. Desai, she submitted that the concerned Mamlatdar and ALT is ready and willing to bear personal cost of litigation in his personal capacity which is Page 4 of 9 Uploaded by Y.N. VYAS(HC00207) on Tue Sep 03 2024 Downloaded on : Fri Sep 06 20:59:20 IST 2024 NEUTRAL CITATION C/SCA/11032/2024 ORDER DATED: 12/08/2024 undefined quantified at Rs. 50,000/- to be paid to Advocates Association within a period of one week from today and undertaking to that effect shall be filed by the concerned Mamlatdar and ALT. Order accordingly.
4. In view of above submissions made by learned AGP Ms. Pathak, without assigning any reasons as the same has not been insisted upon by learned advocate Mr. Purohit also, the impugned order dated 23.01.2024 in Tenancy Case No. 22 of 2017 is hereby quashed and set aside and the matter is remanded back to the Mamlatdar and ALT for fresh consideration. All the rights and contentions of all the parties are kept open.
5. The Collector, Vadodara is directed to assign the proceedings of the Tenancy Case No. 22 of 2017 to any other Mamlatdar and ALT within a period of four weeks from today and in that proceedings, the concerned Mamlatdar and ALT shall issue fresh notice to the petitioner on the address given in this petition and same may be served upon the petitioner by way of R.P.Ad. 6. With the aforesaid observation and with a direction to file an undertaking as per what is stated before this Court within a period of two days from today, the present petition is disposed of without entering into the merits of the matter. Notice is discharged."
9. Considering the said order, it would appear that the learned Coordinate Bench at the very outset, records the statement of learned AGPs appearing for the State before the learned Coordinate Bench that the State would want to withdraw the impugned order dated 23.01.2024 passed by the Mamlatdar and whereas the learned Coordinate Bench was requested not to assign any reasons. It appears that thereafter, the learned Coordinate Bench upon noticing certain lapses as pointed out by the learned AGPs, had imposed personal cost of litigation upon the Mamlatdar in question.
10. The next para acquire importance inasmuch as after the submissions made by the learned AGP that no reasons may be assigned for setting aside of the order in question, learned advocate Mr. Purohit had also not insisted Page 5 of 9 Uploaded by Y.N. VYAS(HC00207) on Tue Sep 03 2024 Downloaded on : Fri Sep 06 20:59:20 IST 2024 NEUTRAL CITATION C/SCA/11032/2024 ORDER DATED: 12/08/2024 undefined for any reasoning and thereupon the impugned order dated 23.01.2024 was "remanded back" to the Mamlatdar & ALT for fresh consideration. The learned Coordinate Bench had observed that all rights and contentions of all the parties are kept open. Thereafter, the learned Coordinate Bench further directs the Collector, Vadodara, to assign proceedings of said Tenancy Case to any other Mamlatdar and whereas the concerned Mamlatdar was empowered to issue fresh notice to the petitioners on the address given in the writ petitions. The Court had thereafter, directed that an undertaking shall be filed within a period of two days from the date of the order and whereas while the requirement of filing undertaking, being upon any particular respondent is not stated, but it could be clearly curled out that such requirement was sought for from the concerned Mamlatdar, who was directed to pay cost from his own pocket. The Court, thereafter, disposed of the writ petition without entering into merits of the matter.
11. Upon conjoint reading of paras 4,5 and 6, it would appear to this Court that the learned Coordinate Bench has not reserved liberty in favour of the State Government to initiate proceedings afresh in that sense, what has been directed by the learned Coordinate Bench is to remand the matter back to the Mamlatdar after the impugned order dated 23.01.2024 was set aside. Incidentally, it is in this para that the learned Coordinate Bench observes that the rights and contentions of the parties are kept open. To this Court, it would appear that upon the learned Coordinate Bench setting aside order dated 23.01.2024 and further remanding the matter back and further observing that all the rights and contentions would be kept open, it would mean that upon the matter being remanded back to the Mamlatdar, the Mamlatdar was not required to issue a fresh show cause notice since the mater was to be taken up from the stage of show cause notice itself and whereas only an intimation of hearing was required to be issued to the parties. Furthermore, the Court having kept all the rights and contentions Page 6 of 9 Uploaded by Y.N. VYAS(HC00207) on Tue Sep 03 2024 Downloaded on : Fri Sep 06 20:59:20 IST 2024 NEUTRAL CITATION C/SCA/11032/2024 ORDER DATED: 12/08/2024 undefined open on the said paras also reflect the intent of the learned Coordinate Bench that the parties should have their rights decided in the proceedings before the Mamlatdar.
12. Again going further, it would appear that the learned Coordinate Bench issued direction to the Collector to change the Mamaltdar in question and direct any other Mamlatdar to decide the issue and whereas the Mamlatdar was permitted to issue a fresh notice to the petitioner on the address given in the petition. It would appear clearly that since there was some lapse on part of the concerned Mamlatdar, who had passed order dated 23.01.2024, cost had been issued upon the Mamlatdar in person and whereas probably it is under such circumstances that the Collector was directed to change in question, rather to send the remanded matter to a different Mamlatdar than the Mamlatdar, who had passed order dated 23.01.2024. Again it would appear as noticed by this Court hereinabove that the Court had permitted the Mamaltdar & ALT to issue a fresh notice, as against a fresh show cause notice, which would be issued, if the proceedings under Section 84(c) were to be initiated afresh as it is, since the matter was remanded back to the Mamlatdar upon order dated 23.01.2024 being set aside, then in normal course of thing, only notice of intimation as noted by this Court hereinabove, was required to be issued and no fresh notice was required as has been issued in the instant case.
13. Again if one considers that the Mamlatdar was empowered to issue a fresh show cause notice then also it does not appear that the petitioners were having any liberty reserved in their favour by the Coordinate Bench to challenge the fresh show cause notice. That if it was intent of the Court was to have left the matter to the discretion of the petitioners, to challenge the show cause notice or not, then appropriate opportunity would have been reserved in favour of the petitioners at that stage. As noted hereinabove, the Page 7 of 9 Uploaded by Y.N. VYAS(HC00207) on Tue Sep 03 2024 Downloaded on : Fri Sep 06 20:59:20 IST 2024 NEUTRAL CITATION C/SCA/11032/2024 ORDER DATED: 12/08/2024 undefined liberty reserved was in favour of the petitioners at the stage of remand proceedings and not at the stage of show cause notice.
14. The present issue could be considered from a different perspective. The writ petition being Special Civil Application No.675 of 2024 had been preferred by the petitioners inter alia challenging a show cause notice dated 23.03.2023 as could be made out from the prayer quoted by learned Coordinate Bench in order dated 05.03.2024. It would appear that originally, the learned Coordinate Bench vide an order dated 15.01.2024 had issued notice returnable on 21.02.2024 and whereas the petitioners were permitted to apply for adjournment. It is the allegation of the petitioners that in the interregnum i.e. vide an order dated 23.01.2024, the Mamlatdar had passed final order and whereas it is in such context that the learned Coordinate Bench had passed final order dated 05.03.2024 as referred to hereinabove. It would appear that the learned Coordinate Bench being conscious of the fact that the original challenge of the petitioners was to the show cause notice and the final order dated 23.01.2024 being passed after the learned Coordinate Bench had issued notice, had, yet, passed an order remanding the matter back to the Mamlatdar with certain directions and whereas the rights and contentions had kept open by this Court, was with regard to the remand proceedings. It would appear that neither the petitioners had sought for liberty to continue their challenge against show cause notice dated 23.03.2023, which would be revived upon final order dated 23.01.2024 being set aside nor liberty had been sought for to challenge any fresh show cause notice. Thus, it would appear to this Court that the petitioners are entitled to be heard by the Mamlatdar before passing of a final order and whereas all rights and contentions in that regard are kept open and whereas no liberty has been reserved in favour of the petitioners to challenge the show cause notice. Thus, it would appear that the petitioners have no right whatsoever to challenge the fresh show cause, since no right had been reserved by the learned Coordinate Bench in favour of the petitioners, while remanding the Page 8 of 9 Uploaded by Y.N. VYAS(HC00207) on Tue Sep 03 2024 Downloaded on : Fri Sep 06 20:59:20 IST 2024 NEUTRAL CITATION C/SCA/11032/2024 ORDER DATED: 12/08/2024 undefined matter back to the Mamlatdar.
15. Thus, in the considered opinion of this Court, the submissions of the learned AGPs deserve consideration. The intent of learned Coordinate Bench of this Court from the discussion hereinabove clearly appears to be that upon the impugned order dated 23.01.2024 being set aside, the Tenancy Case was remanded back to the Mamlatdar, who would afford an appropriate opportunity to all parties and take an appropriate decision. It does not appear that the learned Coordinate Bench ever intended any rights having been reserved in favour of the petitioners to have challenged the show cause notice afresh upon the remand proceedings starting afresh. Under such circumstances, in the considered opinion of this Court, the present petitions being absolutely misconceived and more particularly, since it appears that no opportunity has been reserved in favour of the present petitioners to have challenged the show cause notice the petitions being not maintainable, are hereby disposed of as rejected.
15. It is clarified that this Court has not gone into merits of the matter.
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