Gujarat High Court
Heirs Of Bai Manchi W/O Gulabji Mohanji & ... vs State Of Gujarat & 13 on 5 May, 2017
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/15817/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 15817 of 2016
With
SPECIAL CIVIL APPLICATION NO. 15818 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
================================================================
1 Whether Reporters of Local Papers may be allowed to No 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 ?
================================================================ HEIRS OF BAI MANCHI W/O GULABJI MOHANJI & 4....Petitioner(s) Versus STATE OF GUJARAT & 13....Respondent(s) ================================================================ Appearance:
MR MEHUL S SHAH,SENIOR COUNSEL WITH MR HITESH N ACHARYA, ADVOCATE for Petitioner(s) No. 1 - 1.1.1 , 2 - 2.4 , 3 - 3.2 , 4 - 4.2 , 5 MR VISHRUT JANI, ASST.GOVERNMENT PLEADER for Respondent(s) No. 1 - 3 MR JITENDRA M PATEL FOR MR JAYRAJ CHAUHAN, CAVEATOR for Respondent No. 4 - 5.8 , 6 - 6.5 , 7 - 13 MR JITENDRA M PATEL FOR MR TRILOK J PATEL,CAVEATOR for Respondent No.14 ================================================================ CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI Date : 05/05/2017 COMMON CAV JUDGMENT
1. Rule. Mr.Vishrut Jani, learned Assistant Government Pleader waives service of notices of Rule Page 1 of 38 HC-NIC Page 1 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT for respondents Nos.1 to 3, in each petition.
Mr.Jayraj Chauhan, learned advocate, waives service of notices of Rule for respondents Nos.4 to 5/8, 6 to 6/5 and 7 to 13, in each petition. Mr.Trilok J. Patel, learned advocate, waives service of notice of Rule for respondent No.14, in each petition.
2. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties the petitions are being heard and decided finally. As the facts of the cases and parties are the same and the challenge in both petitions is to the same judgment of the Gujarat Revenue Tribunal, the petitions are being heard and decided together by a common judgment. For the sake of convenience, reference will be made to the facts narrated in Special Civil Application No.15817/2016.
3. The challenge in these petitions under Articles 226 and 227 of the Constitution of India, is to the order dated 09.05.2016, passed by the Gujarat Revenue Tribunal (the Tribunal) in TEN/BA/185/2014 and TEN/BA/186/2014, whereby the said Revision Applications preferred by respondents Nos.4 to 5/8, 6 Page 2 of 38 HC-NIC Page 2 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT to 6/5, 7 to 13, the original land owners and by respondent No.14, the purchaser of the land in question, have been allowed.
4. A brief narration of the facts of the case is as follows :
4.1 The present respondents Nos.4 to 13 are the original owners of the land bearing Revenue Survey No.218/5, Survey No.218/6, Survey No.218/7 and Survey No.218/8, each survey number admeasuring 1Acre 5½ Gunthas, situated in village Lilapur, Taluka Dascroi, Ahmedabad (the subject land). Respondent No.14 is the purchaser of the land from respondents Nos.4 to 13.
The petitioners claim to be the heirs and legal representatives of Galabji Mohanji, who, according to them, was the deemed tenant of the subject land. According to the petitioners, the purchase price of the subject land was fixed at Rs.1,000/ and the amount was deposited and a Certificate under Section 32(M) of the Gujarat Tenancy and Agricultural Lands Act, 1948 (the Tenancy Act), was issued, though this Certificate is not traceable on record. Revenue entry No.630 was mutated in this regard and certified on 03.05.1971. The petitioners claim to be in possession Page 3 of 38 HC-NIC Page 3 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT of the land which they state was cultivated by them since the year 195152. It is further the case of the petitioners that after the death of Galabji Mohanji, the names of his heirs have been mutated in the revenue record and the entry has been certified. Distribution of the land took place between the brothers and entry No.688 dated 25.04.1972 was mutated and certified on 30.12.1974. The petitioners assert that their names are shown in the Village Form No.7/12, which lends support to their stand that they are deemed tenants of the subject land.
4.2 It is the case of the petitioners that despite their status as deemed tenants, respondents Nos.4 to 13 herein, being the owners of the subject land, sold it by a registered Sale Deed to respondent No.14 on 22.12.2005. These respondents will be referred to as the private respondents for the sake of convenience.
The said respondents filed applications before the third respondentMamlatdar and ALT for the deletion of the names of the petitioners from the revenue record. The Mamlatdar and ALT, by his order dated 21.05.2007 held in favour of the respondents herein and directed the deletion of the names of the petitioners from the Page 4 of 38 HC-NIC Page 4 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT second rights column. Aggrieved by this order, the petitioners preferred an appeal before the second respondentDeputy Collector who, by his order dated 12.09.2008, remanded the matter to the third respondent. Upon remand, the third respondent passed the order dated 23.10.2009 in Tenancy Case No.160/2008 (Remand) holding that the tenancy rights of the petitioners are not cancelled and hence, they are entitled to purchase the land under Section32(G) of the Tenancy Act. For this purpose, an application be made within a month from the date of the order.
Respondents Nos.4 to 13 preferred appeals before the second respondent who rejected them vide the order dated 23.07.2014. Dissatisfied by the above order, the private respondents approached the Tribunal. By the impugned orders dated 09.05.2016, the Tribunal quashed and set aside the order of the second respondent. It is in this background that the petitioners are before this Court.
5. Mr.Mehul S. Shah, learned Senior Advocate with Mr.Hitesh Acharya, learned advocate appearing on behalf of the petitioners, has made detailed submissions. It is submitted that respondents Nos.4 to Page 5 of 38 HC-NIC Page 5 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT 13, the original owners of the land, filed an application before the Mamlatdar to delete the entries in favour of the petitioners only on 17.12.2005, after a period of more than fiftysix years. The name of Galabji Mohanji, the predecessorininterest of the petitioners, is running in the revenue record as a deemed tenant in the second rights column ever since the year 195152. Upon remand, the Mamlatdar has rightly held so, which order has been confirmed by the Deputy Collector. After the death of Galabji Mohanji, the names of the petitioners are entered in the revenue record as his heirs. This aspect has not been considered by the Tribunal. The tenancy rights of the petitioners have not been cancelled and the purchase price fixed at Rs.1,000/ after the death of Galabji Mohanji, was paid by his widow Bai Manchi. Merely because the certificate below Form9 is not to be found on record, the entry has been wrongly cancelled. The Mamlatdar has rightly held that the petitioners are entitled to purchase the land.
5.1 It is further submitted that respondents Nos.4 to 13 have no claim over the land as the petitioners are deemed tenants. Similarly, respondent No.14, to whom Page 6 of 38 HC-NIC Page 6 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT the original owners have sold the land cannot claim any equity as he has purchased the land without verifying the factual position from the revenue record.
5.2 That there are revenue entries in favour of the petitioners as deemed tenants. One such entry is entry No.362 in Village Form No.6 dated 14.11.1952 in respect of Survey Nos.218/5 and 218/8, which was certified on 21.07.1953. Further, entry No.413 dated 09.08.1956 has been certified on 04.10.1956 in respect of Survey Nos.218/6 and 218/7. These entries have not been challenged by anyone till date.
5.3 It is contended that the application filed by the original owners is not an appeal challenging the said entries, but it seeks to remove the effect of entry No.413 mutated on 09.08.1956 from the revenue record on the ground that the petitioners were never tenants and have given up the possession of the land. The original owners have not shown any procedure whereby the petitioners have lost their tenancy rights. Even if it is assumed that the petitioners have not paid the purchase price as there is no certificate under Page 7 of 38 HC-NIC Page 7 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT Section32(M) of the Tenancy Act on record, the rights of the petitioners as deemed tenants are not extinguished. The challenge by the original owners to the entry recording the fixation of the purchase price has been rejected by the Mamlatdar and there is no appeal against the said order.
5.4 Learned Senior Counsel for the petitioners submits that there are errors apparent on the face of the impugned judgment of the Tribunal. There was no requirement for the Tribunal to go into the validity of the payment of the purchase price as an entry is mutated to this effect. Until the said entry remains, the Tribunal could not have gone into this aspect. The Tribunal has not considered that the original owners have not shown that any prescribed procedure was followed by the petitioners to give up their tenancy rights. As no material has been produced, it follows that the tenancy rights of the petitioners continue. 5.5 That the entries in favour of the petitioners are presumed to be correct in view of the presumption under Section135(J) of the Code of Civil Procedure, 1908 ("the Code", for short). This presumption has not Page 8 of 38 HC-NIC Page 8 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT been displaced by the original owners.
5.6 It is asserted that there is no question of any bar of res judicata in the order of the Deputy Collector stating that the petitioners are entitled to apply for purchase of the land, as held by the Tribunal.
6. Opposing the submissions advanced by learned Senior Counsel for the petitioners, Mr.Jitendra M. Patel, learned counsel for Mr.Jayraj Chauhan, learned advocate for respondents Nos.4 to 13 and Mr.Trilok J. Patel, learned advocate for respondent No.14, has made common submissions on behalf of the said respondents. 6.1 It is submitted that entry No.412 deleting the name of the tenant is correct. However, a mistake has occurred in recording entry No.413 on the very same day for two survey numbers, showing the name of the predecessor of the petitioners in the second rights column. This mistake has been categorically admitted by the petitioners not only by way of a "Kabulatnama" but also by making declarations. Moreover, the learned advocate for the petitioners has also admitted that the declarations have been made by them. It is Page 9 of 38 HC-NIC Page 9 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT vehemently contended by learned counsel for the private respondents that the petitioners have declared that they are not tenants of the land and have never been tenants. They have stated that they are not in possession of the land. Such voluntary admissions of a party cannot be ignored. Now that the petitioners realize that the land has become valuable, they are falsely asserting their claim over it.
6.2 It is further submitted that the order of the Mamlatdar dated 23.10.2009, after remand, is without jurisdiction. The application made by the private respondents was not under the Tenancy Act but under the Code and Rules for the deletion of the effect of the wrong entry. The Mamlatdar has wrongly converted the said proceedings into tenancy proceedings under Section70(B) and 70(O) of the Tenancy Act and given liberty to the petitioners to make an application under Section32(G) of the said Act. The proceedings from this point onwards for fixing the purchase price are without jurisdiction. The Mamlatdar failed to notice that the alleged tenancy rights of the petitioners had come to an end in the year 1956. 6.3 It is contended on behalf of the private Page 10 of 38 HC-NIC Page 10 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT respondents that the petitioners never initiated any proceedings to reassert their tenancy rights. The appeal filed by the petitioners under Section74 of the Tenancy Act is not maintainable, as it is filed as though in a tenancy case whereas the dispute initiated by the private respondents was not under the Tenancy Act.
6.4 It is further contended that the application filed by the private respondents for the deletion of the entry could either have been accepted or rejected. The Mamlatdar could not have converted it into a case for the declaration of the socalled tenancy of the petitioners, and passed the order in those proceedings, especially when the petitioners have never filed any such proceedings for declaration as tenants. Such a declaration could not have been made in proceedings initiated by the private respondents, and that too for a totally different purpose. It is submitted that the Mamlatdar could not have permitted the petitioners to purchase the land by holding that their rights as tenants have not been extinguished, in proceedings filed by the private respondents. The order of the Mamlatdar, therefore, is without Page 11 of 38 HC-NIC Page 11 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT jurisdiction.
6.5 On the aspect of raising the point of jurisdiction at this stage, learned counsel for the private respondents has relied upon a judgment of the Supreme Court in the case of Subhanrao V. Patankar and another Vs. Masu Daji Pote and others, reported in (1983) 1 SCC 400, wherein the Apex Court permitted a new plea to be raised by granting opportunity to the opponents to meet such plea.
6.6 To buttress the submission that the Mamlatdar could not have granted relief to the petitioners in an application filed by the private respondents, especially when such relief was never prayed for, learned counsel for the private respondents has relied upon the judgment of the Supreme Court in the case of Shehla Burney (Dr.) and others Vs. Syed Ali Mossa Raza (Dead) by Lrs. and others, reported in (2011) 6 SCC 529. The relevant extract of the judgment is reproduced below :
"15. Considering these rival submissions, this Court is of the view that some of the submissions of the learned counsel for the Page 12 of 38 HC-NIC Page 12 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT appellants deserve acceptance. The submissions of the learned counsel for the appellant that there is no prayer for decree of possession either in the original plaint or amended plaint against original defendant no.2 stands proved. The prayers in the original plaint and the amended plaint were placed before us.
16. The prayer in the amended plaint is set out hereinbelow: "(1) that a decree to be passed in favour of the petitioners against the defendant for possession of land measuring 2180 sq yd situate at village Shaikpet, Banjara Hills, Jubilee Hills, Hyderabad bounded by east:
road, west: plaintiff's land, north: Road No.3 and south: Road No.14, as per annexed plan attached to the plaint, in survey No.129/55 (old), New Survey No.165, situate at Shaikpet, village, Hyderabad Urban by demolishing the illegal structures on the land;"
It is clear that in the amended plaint the prayer is against the defendant, therefore, the prayer is only against Defendant 1 and not against Defendant 2.
17. In a case where prayer is not made against a particular defendant, no relief possibly can be granted against him."
6.7 It is further submitted on behalf of the private Page 13 of 38 HC-NIC Page 13 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT respondents that there is no error in the order of the Tribunal, which has been passed after properly appreciating the revenue record and the evidence. The Tribunal has rightly held that in remand proceedings the Mamlatdar could not have taken evidence afresh, especially as he was not directed to do so by the Deputy Collector. The Mamlatdar has further not taken into consideration the clear admission by the petitioners that they are not tenants and have no objection if their names are deleted. This aspect has been correctly considered by the Tribunal. 6.8 It is submitted that though the order of remand was not challenged by the private respondents at the relevant period of time, however, it is open to them to do so at the final stage. In support of this submission reliance has been placed upon the judgment of the Apex Court in the case of Kshitish Chandra Bose Vs. Commissioner of Ranchi, reported in AIR 1981 SC 707, wherein the Supreme Court has held as below :
"Where the High Court in second appeal though not having jurisdiction illegally reversed the concurrent finding of fact and ordered remand, the aggrieved party can, in an appeal to the Page 14 of 38 HC-NIC Page 14 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT Supreme Court from the final order of the High Court after remand, challenge even the first order of the High Court making remand and all the proceedings taken thereafter as a result of the illegal order of remand. The first judgment of the High Court ordering remand being illegal all the proceedings taken thereafter would become void ab initio."
6.9 Learned counsel for the private respondents has forcefully contended that without prejudice to the stand of the private respondents that the petitioners are not tenants, even if it is assumed that they are deemed tenants as per their say, their conduct may be seen. The petitioners have made declarations stating that they are not tenants and are not in possession of the land and that their names have been entered in the revenue record mistakenly. They have further declared that they have no objection if their names are removed. These declarations have been suppressed by the petitioners before this Court. Though the petitioners, as per their own say, are not tenants and have no title to the land, they have executed several Agreements to Sell in respect of the land and have pocketed consideration. Even if they were tenants, which aspect is denied, the petitioners could not have Page 15 of 38 HC-NIC Page 15 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT entered into any written agreement in contravention of the provisions of Section43 of the Tenancy Act, which prohibits not only the transfer of land without the previous sanction of the competent authority but also the entering into of any such agreement. The petitioners have not been declared as tenants in any proceedings and there is no order in their favour. In spite of this, they have collected huge sums of money by falsely claiming such status.
6.10 In support of the submission that statutory proceedings are required to be conducted before a person can be declared as a tenant by the competent authority, reliance has been placed upon the case of Dahyabhai Somabhai Vs. Ramaji Kesarji, reported in 1971 GLR 809, wherein this Court has held as below:
"If an issue arises for which the Mamlatdar functioning under the Tenancy Act is constituted an exclusive forum then such an issue cannot be decided or dealt with by the Mamlatdar while presiding over the Mamlatdars' Courts because the Mamlatdars' Courts is a civil Court and the jurisdiction of the civil Court to decide, settle or deal with such a question is ousted under Section85 of the Tenancy Act. It is also settled Page 16 of 38 HC-NIC Page 16 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT that the question whether a particular person is a tenant of a particular land within the meaning of the Tenancy Act can be decided or dealt with by the Mamlatdar under Section70 of the Tenancy Act as the Mamlatdar is constituted an exclusive forum for the decision of the said issue. Thus, if a question arises as to whether the person is a tenant of a particular land or not within the meaning of the Tenancy Act, the Mamlatdar functioning under the Tenancy Act will have an exclusive jurisdiction to decide that question. But if such an issue arises before a civil Court which includes the Mamlatdars' Court, the civil Court will have no jurisdiction to decide or settle or deal with the same. Even if an issue arises whether a party to the proceeding brought before the Mamlatdar under the Mamlatdars' Court Act is a tenant or not, that issue cannot be decided by the Mamlatdar while presiding over the Mamlatdars' Court and the issue will have to be referred to the competent authority, namely, the Mamalatdar functioning under the Tenancy Act."
6.11 Elaborating further on the conduct of the petitioners and the admission made by them, learned counsel for the private respondents has submitted that their conduct, itself, disentitles the petitioners to the grant of any discretionary relief, irrespective of the order of the Tribunal. In support of this Page 17 of 38 HC-NIC Page 17 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT submission, reliance has been placed upon a judgment of the Apex Court in G.M., ONGC Ltd. Vs. Sendhabhai Vastram Patel and others, reported in 2005 (6) SCALE
418. The relevant extract of the judgment is as under:
"23. It is now wellsettled that the High Courts and the Supreme Court while exercising their enquiry jurisdiction under Articles 226 and 32 of the Constitution as also Article 136 thereof may not exercise the same in appropriate cases. While exercising such jurisdiction, the superior courts in India even may not strike down a wrong order only because it would be lawful to do so. A discretionary relief may be refused to be extended to the Appellant in a given case although the Court may find the same to be justified in law. [See S.D.S. Shipping (P) Ltd. Vs. Jay Container Services Co. (P) Ltd. and Others (2003) 9 SCC 439]"
6.12 On the point of the admission made by the petitioners in the declarations that they are not tenants and their names have been mistakenly entered in the record, learned counsel for the private respondents has referred to the case of Thiru John Vs. Returning Office, reported in (1977) 3 SCC 540, and has submitted that the admission of parties is Page 18 of 38 HC-NIC Page 18 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT required to be taken into account. The relevant extract of the judgment is reproduced below :
"14. All these documents aforesaid contain admissions made by Shri John that he was born in 1946. In several of these documents he declared 14.5.1946 as his date of birth.
15. It is well settled that a party's admission as defined in Secs.17 to 20, fulfilling the requirements of Sec.21, Evidence Act, is substantive evidence proprio vigore. An admission, if clearly and unequivocally made, is the best evidence against the party making it and though not conclusive, shifts the onus on to the maker on the principle that "what a party himself admits to be true may reasonably be presumed to be so and until the presumption was rebutted the fact admitted must be taken to be established".
16. The above principle will apply with greater force in the instant case. Here, there are a number of clear admissions in prior declarations precisely and deliberately made in solemn documents by Shri John. These admissions were made ante litem motam during the decade preceding the election in question. These admissions were entitled to great weight. They had shifted the burden on the appellant (Shri John) to show that they were incorrect. The appellant had miserably failed to show that these admissions were Page 19 of 38 HC-NIC Page 19 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT incorrect. "
6.13 It is submitted that in the present case the petitioners have made clear declarations that they are not tenants of the land in question, which declarations are required to be taken into consideration as the petitioners have accepted the factual position. No proceedings have been initiated by them to declare themselves as tenants, therefore, the clear admission of the petitioners is extremely relevant. The declarations have not been denied by them and are binding upon them. It is only when the private respondents made an application for the deletion of the wrong entry did the petitioners change their stand as the land has now become valuable.
6.14 It is further urged that the Deputy Collector did not remand the case for fresh inquiry. Neither did he direct that fresh evidence be taken, therefore, the Mamlatdar could not have gone beyond the scope of the remand order and recorded statements anew.
6.15 On the basis of the above submissions, it is urged on behalf of the private respondents that the Page 20 of 38 HC-NIC Page 20 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT petition be dismissed with costs as the petitioners are seeking to make money out of litigation.
7. Mr.Vishrut R. Jani, learned Assistant Government Pleader, has supported the order of the Tribunal and submitted that the said order is based upon a proper application of the factual position and the material on record and, therefore, the petitions be rejected.
8. In rejoinder, Mr.Mehul S. Shah, learned Senior Advocate for the petitioners, apart from reiterating the submissions advanced by him earlier, has responded to the contention regarding lack of jurisdiction in the revenue authorities to pass the impugned order raised on behalf of the private respondents by stating that if the said orders are without jurisdiction, then it can be said that the entire proceedings, including the order of the Tribunal, are also without jurisdiction.
9. Learned Senior Counsel for the petitioners has distinguished the judgments relied upon by learned counsel for the private respondents by submitting that they are not applicable in the present case.Page 21 of 38
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10. Responding to the allegations regarding the conduct of the petitioners in entering into Agreements to Sell, it is submitted that if at all, it is the proposed vendors who would be the aggrieved parties and not the respondents. It is reiterated that the petitioners are tenants and once so declared, they remain as such. No declaration of theirs would take away the status conferred by law. It is contended that the remand order of the Deputy Collector was not challenged by the private respondents, therefore, it has already operated.
11. Reliance has been placed on a judgment of the Supreme Court in the case of Mahendrasinh Ranmalsinh and another Vs. J.R.Patel and others, reported in 2003 (1) GLR 89, wherein it is held as below :
"4. All these aforesaid decisions have crystallized the scope of Section 76(1) of the Act. So far the appreciation of evidence is concerned it is permitted only if the Tribunal reaches to the conclusion that there is error committed in appreciating the important evidence resulting into miscarriage of justice. The other grounds mentioned in that section for interference of the Tribunal are not relevant for the Page 22 of 38 HC-NIC Page 22 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT purpose of present petition, and therefore, the same are not required to be discussed here. The ratio laid down by the aforesaid decisions clearly states that the Tribunal cannot normally reappreciate the evidence while exercising revisional jurisdiction. If at all the Tribunal intends to interfere with the decision of the Collector on facts, it has first to record that there is error committed by the Collector in appreciating the important evidence. The ratio further lays down that the Tribunal is also required to give its finding that such error has resulted into miscarriage of justice. If these are the requisite preconditions for the Tribunal to interfere with the Collector's order on the questions of facts it is incumbent upon the Tribunal to give its finding in accordance with the requirement of Section 76(1) of the Act with regard to error committed by the Collector in not properly appreciating the important evidence or not taking it into consideration at all. The Tribunal can not simply ignore it and proceed to reappreciate the evidence as if it was sitting in appeal over the judgment of the Collector. In the present case, precisely that has happened. The Tribunal has taken each piece of evidence into consideration and has upset the finding of fact given by the Collector based on that Page 23 of 38 HC-NIC Page 23 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT evidence. The Tribunal has at no point of time recorded that the evidence which was being reappreciated by it was important evidence and the Deputy Collector had committed error in appreciating it which had resulted into miscarriage of justice. The Tribunal, in view of the clear prohibition imposed by the provisions of the Section 76(1) of the Act, could not have embarked upon the factfinding exercise and interfered with the findings given by the Deputy Collector. As stated above, the text of the judgment clearly shows that the Tribunal has first come to the conclusion that the petitioners were not the tenants of the disputed land, and thereafter, it has got support from different pieces of evidence and in support of its conclusion this is clearly in violation of provisions of Section 76(1) of the Act. For these reasons alone, the judgment of the Tribunal is required to be quashed and set aside."
12. In the background of the above submissions, this Court has heard learned counsel for the respective parties at length, perused the impugned order of the Tribunal and other documents on record.
13. In a petition under Articles226 and 227 of the Constitution where the Court is called upon to Page 24 of 38 HC-NIC Page 24 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT exercise its certiorari and supervisory jurisdiction in respect of the order of the Tribunal, it remains to be seen whether the said order is illegal, erroneous, contrary to the record, or perverse.
14. In the present case, it transpires from the record that the initial application preferred by the private respondents was to delete the effect of Mutation Entry No.413 whereby the name of the predecessor of the petitioners is shown in the second rights column. Initially, the third respondent by his order dated 21.05.2007 allowed the application of the private respondents for the deletion of the entry in question. Upon appeal before the second respondent, this order was set aside and the matter remanded.
15. It is an admitted fact that during the remand proceedings the petitioners have unequivocally and voluntarily admitted that they are not tenants of the subject land and are not in possession of it. These statements are on record and have been noted by the Tribunal in its order. The petitioners have themselves submitted notarized declarations dated 11.06.2006 and 23.11.2010 as well as a "Kabulatnama", admitting that Page 25 of 38 HC-NIC Page 25 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT they have no objection if entry No.413 is deleted as it is made mistakenly. This aspect has also been admitted by the learned advocate who had appeared for the petitioners at the relevant point of time. The Tribunal has rightly considered this aspect of the matter. It has also taken note of the fact that the declarations of the petitioners were taken into consideration by the third respondent while passing the order dated 21.05.2007, which was later quashed and set aside. Be that as it may, the fact remains that the said declarations of the petitioners are on record and have not been retracted at any stage. They have also not been denied by learned Senior Counsel for the petitioners before this Court.
16. It has been urged on behalf of the petitioners that they are deemed tenants and their predecessor has paid the purchase price. That the name of the predecessor of the petitioners has been entered in the second rights column vide entry No.413. The record reveals that entries Nos.412 and 413 have been mutated on the very same day, that is, on 09.08.1956. Entry No.412 records the deletion of the name of one Sursangji Mohanji as tenant of Survey Nos.218/5 and Page 26 of 38 HC-NIC Page 26 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT 218/6 as the said person has not cultivated the land for two years. This person has no connection with the petitioners as stated by learned Senior Counsel. Entry No.413 has been mutated on the same day. It records the name of the predecessor of the petitioners in the second rights column in respect of Survey Nos.218/6 and 218/7 (two survey numbers out of four). It is on the basis of this entry that the petitioners are claiming the status of tenants. There is no order to be found on record which forms the basis of this entry.
17. It has been submitted by learned Senior Counsel for the petitioners that this entry is not challenged and the status of tenant conferred by law cannot be taken away from the petitioners. However, learned Senior Counsel for the petitioners has been unable to produce even a single order, or any proceedings, holding that the predecessor of the petitioners has been declared as a tenant under the Tenancy Act. It may have transpired that at some stage, the widow of Galabji Mohanji, after his death, expressed her willingness to purchase the land. However, it does not appear that any proceedings that may have taken place Page 27 of 38 HC-NIC Page 27 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT actually culminated into an order declaring the predecessors of the petitioners as tenants. The certificate of purchase under Section32(M) of the Tenancy Act is not to be found on record. Neither is there any record of any order declaring the predecessor of the petitioners as a deemed tenant. The petitioners are only relying on Mutation Entry No.413, without there being any order to support it. It appears that the petitioners have not sought any declaration as required by law to put a final stamp of approval upon the status of deemed tenants as claimed by them. When there is no order declaring the petitioners as tenants, the desire to purchase the land and fixing of the purchase price would not confer such status on them. In this view of the matter it cannot be asserted that the private respondents have not taken out proceedings to divest the petitioners of their alleged tenancy.
18. Learned Senior Counsel has contended that the status of tenant conferred by law cannot be taken away even if the certificate of purchase is not on record. In this regard it can be said that the status of Page 28 of 38 HC-NIC Page 28 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT tenant has first to be conferred by way of proper legal proceedings, which appear to be missing in this case. The mutation entry No.587 dated 05.08.1966 in the name of Bai Manchi was never certified. Hence, the submissions made in this regard on behalf of the petitioners lack legal force and substance.
19. Upon remand, the third respondent appears to have clearly acted beyond the scope of the remand order by taking fresh statements and evidence. He has acted as though the proceedings have been initiated by the petitioners to be declared as tenants, even though the said proceedings emanate from the application of the private respondents for the deletion of the names of the petitioners on the ground that they had been entered by mistake, which aspect has been admitted by the petitioners before the authorities. The Tribunal has taken note of and discussed this aspect of the matter in its order. This Court cannot say, after perusing the record, that the conclusion arrived at by the Tribunal in this regard is either erroneous or perverse.
20. A submission was advanced on behalf of the Page 29 of 38 HC-NIC Page 29 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT petitioners that the application was filed by the private respondents for the deletion of the name of the predecessor of the petitioners after fiftysix years. In the proceedings that followed, the petitioners never raised the issue of delay. On the contrary, they themselves declared before the Mamlatdar that they are not tenants and do not have possession over the land. They even went to the extent of stating that they have never cultivated the said land and have no objection if the disputed entry is cancelled. This stand has been consistently taken before the authorities below. The third and second respondents, in their orders after remand, have strangely ignored this aspect and converted entry proceedings initiated by the private respondents into proceedings under the Tenancy Act, as though initiated by the petitioners and have declared that the petitioners are entitled to purchase the land anew. This finding is illegal and highly irregular as the application of the private respondents was for the deletion of the effect of the disputed entry and had nothing to do with the Tenancy Act. In an application filed by the private respondents, no relief could have Page 30 of 38 HC-NIC Page 30 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT been granted to the petitioners which was beyond the scope of the application, especially under another enactment. It may be true that the private respondents participated in the remand proceedings and this issue was not raised at the relevant point of time. The Tribunal has noticed in the impugned order that the revenue authorities have gone beyond the scope of the remand and have transgressed the limits of their jurisdiction qua the remand. It has been observed by the Tribunal that the authorities were not required to record statements afresh and doing so has led to a great deal of improvement.
21. Looking to the record, the observations of the Tribunal in this regard cannot be faulted. The proceedings initiated by the private respondents regarding deletion of the effect of the disputed entry could not have been converted into tenancy proceedings as though filed by the petitioners. As such the orders of the third and second respondents are illegal and erroneous, apart from being passed in excess of the jurisdiction vested in them.
22. It has been argued on behalf of the petitioners Page 31 of 38 HC-NIC Page 31 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT that if the orders of the third and second respondents are without jurisdiction, so would be the order of the Tribunal. The judgment of this Court in the case of Mahendrasinh Ranmalsinh and another Vs. J.R.Patel and others (supra) has been pressed into service in this regard. The principles of law enunciated in this judgment are not disputed. However, it does not apply to the facts of the present case. The Tribunal has noted the flaws in the recording of the new evidence by the revenue authorities below. It has, however, not entered into any reappreciation of evidence which is what the judgment discusses. The Tribunal has acted within the four corners of the jurisdiction vested in it and has passed a reasoned order. Merely because the Tribunal has set aside the orders of the revenue authorities cannot be a ground to state that it has acted without jurisdiction.
23. The Tribunal has further observed that earlier the purchase price of Rs.1,000/ had been fixed, but no certificate of purchase appears to have been issued, therefore, the authorities below could not have granted liberty to the petitioners to purchase the land again and that too in proceedings initiated Page 32 of 38 HC-NIC Page 32 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT by the private respondents. The words 'res judicata' have been used by the Tribunal in this regard. It was pointed out by learned Senior Counsel for the petitioners that this is one of the errors apparent on the face of the judgment. The choice of terminology by the Tribunal may not exactly be a happy one, but the intention is clear that once the purchase price was fixed, which did not culminate into a certificate of purchase, a fresh opportunity to purchase cannot be given to the petitioners after so many years and that too in entry proceedings initiated by the other side. The earlier purchase appears to be infructuous and an opportunity cannot be granted to the petitioners to cover up the lacunae in their case. The meaning and intention of the Tribunal is apparent and cannot be said to be based upon a wrong premise.
24. There is nothing on record to show that the petitioners ever purchased the land or have been declared as tenants by a valid order under the Tenancy Act. None has ever been produced on record. The petitioners are claiming the status of tenants only on the basis of entry No.413, which they themselves have admitted to be mistakenly inserted. The petitioners Page 33 of 38 HC-NIC Page 33 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT have unequivocally and voluntarily declared before the authorities by way of notarized declarations and a "Kabulatnama", that they are not tenants of the subject land and neither did they have possession over it. The petitioners have even gone to the extent of declaring that they never cultivated the land and they have no objections if the entry in question be deleted. Even their learned advocate before the revenue authorities has endorsed these declarations. It is true that a declaration would not affect the lawful status of a tenant provided it is conferred in lawful proceedings by an order of a competent authority. In the present case, there is no order by any authority declaring the petitioners to be deemed tenants. The certificate of purchase of the land is not found on record. Coupled with this is the admission of the petitioners that they are not tenants. Under such circumstances, the admission of the petitioners by way of the declarations and "Kabulatnama" cannot be disregarded, especially as there has never been any retraction of the declarations till date.
Page 34 of 38 HC-NIC Page 34 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT
25. Learned Senior Counsel for the petitioners has been unable to point out any order pursuant to which entry No.413 has been recorded, showing the name of the predecessor of the petitioners in the second rights column qua only two out of four survey numbers of the subject land. The aspect that there is no order in favour of the petitioners has been noticed by the Tribunal, as well. It is also surprising that entry No.412, deleting the name of another person from the second rights column for two survey numbers and entry No.413, adding the name of the predecessor of the petitioners for two other survey numbers, have been mutated on the same day. There is no reference to any order in Entry No.413.
26. It is a settled position of law that revenue entries are mutated only for fiscal purposes and do not confer rights or title upon the person in whose favour they are mutated. Such rights or title can be only conferred by the competent Court or under a relevant enactment. Such is not the case here. The claim of the petitioners as tenants, merely on the basis of a revenue entry which they themselves have declared to be mistaken, in the absence of any order Page 35 of 38 HC-NIC Page 35 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT emanating from proceedings under the Tenancy Act, cannot be sustained, as has rightly been concluded by the Tribunal.
27. The private respondents are bonafide purchasers for consideration and have incurred expenditure over the land in question. By now, equities have arisen in their favour. The Sale Deeds of the respondents have not been challenged in the competent Court.
28. The conduct of the petitioners can be guaged from the fact that they have not disclosed the declarations made by them in the petition. Neither have they denied the allegation of conduct or suppression of material facts in the rejoinder. The declarations are material as they constitute the stand of the petitioners before the authorities. Merely because the first order of the third respondent was upset by the second respondent and from then onwards the proceedings took a different turn, cannot absolve the petitioners from their obligation to disclose all material facts before this Court. Learned Senior Counsel for the petitioners could not successfully convince this Court regarding the suppression of the declarations and the conduct of the Page 36 of 38 HC-NIC Page 36 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT petitioners.
29. Learned counsel for the private respondents has made submissions regarding the conduct of the petitioners in executing the Agreements to Sell by stating that the petitioners could not have entered into such agreements as they are not tenants. Without prejudice to this contention it is submitted that even if it is assumed that they are tenants, they could not have entered into any written Agreement to Sell in view of Section43 of the Tenancy Act. The Court does not consider it necessary to deal with this submission as it does not appear to have been raised before the Tribunal.
30. After considering the rival submissions and perusing the material on record, this Court does not find any illegality or perversity in the impugned judgment of the Tribunal so as to warrant interference. On the contrary, it can be said that considering the factual position the conclusion arrived at by the Tribunal is in accordance with law.
31. As a result of the above discussion, this Court Page 37 of 38 HC-NIC Page 37 of 38 Created On Sat May 06 00:26:32 IST 2017 C/SCA/15817/2016 CAV JUDGMENT arrives at the conclusion that the petitions, being devoid of merit, deserve to be rejected.
32. Accordingly, the petitions stand rejected. Rule is discharged in each petition. There shall be no orders as to costs.
(SMT. ABHILASHA KUMARI, J.) Gaurav+ Page 38 of 38 HC-NIC Page 38 of 38 Created On Sat May 06 00:26:32 IST 2017