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1993 DIGILAW 337 (GUJ)

Harjivandas Anandji Kapadia v. Apar Private Limited

1993-07-26

D.G.KARIA

body1993
D. G. KARIA, J. ( 1 ) THIS Special Civil Application under Article 227 of the Constitution arises out of decision dated November 7, 1984 rendered in Revision Application No. TEN. B. A. 1079/83 by Gujarat Revenue Tribunal. By the impugned decision, the Tribunal partly allowed the revision application, quashing the order of the Deputy Collector so far as it related to the grant of permission to transfer the land of Survey No. 3344/1 under sec. 43 of the Bombay Tenancy and Agricultural Lands Act, 1948 (for short "the Tenancy act") and remanded the matter to the Deputy Collector for taking decision after hearing the parties. ( 2 ) 2nd respondnet, Raijibhai Dulabhai Vaghri, was tenant in respect of the lands, bearing Survey No. 3344/1 admeasuring 20 Acres 23 Gunthas, among other lands, situated at Kakarkhad in the town of Nadiad in District Kheda. 2nd respondent had become the deemd purchaser of the said land under provisions of the Tenancy Act. ( 3 ) IT appears that 2nd respondent entered into agreemnet to sell the afroesaid land with the repsondent No. 1 Apar Private Limited, Nadiad, and sought permission under section 43 of the Tenancy Act from the Deputy Collector, Nadiad. By the order dated march 8,1982 the Deputy Collector, Nadiad, granted the permission as sought by the 2nd respondent on the condition of payment of the premium of Rs. 1400/- per Guntha of the land. The 2nd respondent had thus to pay Rs. 17,800/- to the State exchequer by way of condition of transferring the said land in favour of respondent No. 1. The 2nd respondent being aggrieved by the said order, so far as it related to the premium-amount of Rs. 1400/- per Guntha for transferring the land, preferred revision application No. 714 of 1982 before the Gujarat Revenue Tribunal. The grievance of the 2nd respondent was that the order specifying the permium amount was passed without hearing him. The Tribunal, therefore, by its judgment dated March 21,1983, quashed the order of the Deputy collector and allowed the revision application remanding the matter for a decision afresh according to law. ( 4 ) IT appears that during the pendency of the afroesaid revision application No. 714/82, the second respondent again applied for permission under section 43 of the tenancy Act for transferring the aforesaid land along with other lands to the petitioners. ( 4 ) IT appears that during the pendency of the afroesaid revision application No. 714/82, the second respondent again applied for permission under section 43 of the tenancy Act for transferring the aforesaid land along with other lands to the petitioners. The Deputy Collector, by his order dated October 3,1982, as amended by the order dated november 11, 1982, granted the permission under sec. 43 of the Tenancy Act to the second respondent on condition of paying the premium, Rs. 1980/- to the State exchequer. The first repondent being aggrieved by the said order, preferred Revision Application no. TEN B. A. 1079/83 before the Gujarat Revenue Tribunal under section 76 of the trenancy Act. The Tribunal partly allowed the revision application of the first respondent and ordered to remand the matter to the Deputy Collector for taking a deciision afresh after hearing the respondent No. l, as the Deputy Collector had granted the permission under section 43 of the Act during the pendency of the earlier Revision Application No. 714 of 1982 before the Tribunal. The Deputy Collector thus considered the second or subsequent application of the second respondent in disregard of the stay order that was granted by the Tribunal. Under the circumstances, the Tribunal allowed the revision application as aforesaid. It is against this order that the petitioners have preferred the present petition. ( 5 ) MR. G. N. Desai, learned Advocate for the petitioner has raised the following points in support of the petition: (I) The respondent No. 1 had no locus standie to prefer the revision application before the Gujarat Revenue Tribunal, as he had no right to file such revision application against the order passed on application made by the second respondent. (II) The impugned decision of the Tribunal was vitiated on account of non-application of mind, as the first respondent had not preferred the earlier revision application, nor any stay order was obtained by first respondent. (III) The jurisdiction of the Deputy Collector under section 43 of the Bombay tenancy Act was not barred in considering and deciding the second or subsequent application by the second respondent. ( 6 ) AS regards the first point raised by Mr. Desai regarding the locus standie, the respondent No. 1 was a party-respondent in the earlier Revision Application No. 714/82. ( 6 ) AS regards the first point raised by Mr. Desai regarding the locus standie, the respondent No. 1 was a party-respondent in the earlier Revision Application No. 714/82. The second respondent had agreed to transfer the land in question in favour of the first respondent in the initial stage. The second respondent, however, by subsequent application, decided to transfer the said land in favour of the petitioner herein. The petitioner herein was not a party in the earlier revision application before the Tribunal. In view of this fact, it cannot be said that no revision application could have been filed by the first respondent, nor it could have been entertained by the Tribunal. The first respondent, being aggrieved party by the order of the Deputy Collector passed on October 3,1982, could invoke the jurisdiction of the Tribunal under section 76 of the Tenancy Act considering the second application, inasmuch as the Tribunal was seized of the earlier matter and stay granted by the Tribunal was operative; hence no further application could have been processed. In that view of the matter, I find no substance in contention of Mr. Desai that the respondent No. l had no locus standie to invoke the jurisdiction of the tribunal by filing revision application. Mr. Desai then invited my attention to para 4 of the impugned judgment of the tribunal pointing out the following portion: "the applicant had filed revision application No. TEN. B. A. 714/82 against the said order. This. Tribunal had granted the stay order on 20-4-82 in respect of the said order. In disregard of the stay order, the Dy. Collector has granted the present permission and S. No. 3344/1 is included in the said permission". Mr. Desai submitted that the earlier revision application was preferred by the second respondent and not by the first respondent and as such the Tribunals order was vitiated on ground of non-application of mind, for the reasons that the Tribunal referred to the respendent and the order, wrongly. It is true that the earlier revision application was filed by the opponent-respondent No. 2. However, the fact remains that the Deputy Collector granted the permission under section 43 in favour of the tenant-respondent, in disregard to the stay order that was granted by the Tribunal. This factual aspect is not in dispute. It is true that the earlier revision application was filed by the opponent-respondent No. 2. However, the fact remains that the Deputy Collector granted the permission under section 43 in favour of the tenant-respondent, in disregard to the stay order that was granted by the Tribunal. This factual aspect is not in dispute. Mere fact that respondent No. 1 had not preferred the earlier petition would not amount to non-application of mind by the Tribunal. It may be a just or bona fide mistake in referring to the respondent. The submission of Mr. Desai therefore, cannot be upheld. ( 7 ) MR. Desai lastly submitted that the Deputy Collector has authority and jurisdiction to consider the second or subsequent application made by the second respondent under section 43 of the Tenancy Act. Relevant part of section 43 of the Tenancy Act provides as under:"43. (1) No land or any interest therein purchased by a tenant under section 17b, 32, 32f, 32-1, 32-O 32u, 43-ID or 88e or sold to any person under section 32p or 64 shall be transferred or shall be agreed by an instrument in writing to be transferred, by sale, gift, exchange, mortgage, lease or assignment, without the previous sanction of the Collector and except in consideration of payment of such amount as the State Government may by general or special order determine, and no such land or any interest, therein shall be partitioned without the previous sanction of the Collector. (1a) The sanction under sub-section (1) shall be given by the Collector in such circumstances and subject to such conditions, as may be prescribed by the state Government. . . . . " ( 8 ) ON plain reading of the aforesaid provision it cannot be construed thai the tenant could make as many applications as he liked or pending the decision on earlier application, he could make second or subsequent application. It appears that while making such second application, the second respondent suppressed the fact that he was granted permission under section 43 of the Tenancy Act and he felt the premium to be excessive and therefore he had preferred revision application, which was then pending. Had he disclosed this fact, such a complication would not have arisen. Under the circumstances, conflicting decisions are likely to be rendered with regard to the same subject-matter. Had he disclosed this fact, such a complication would not have arisen. Under the circumstances, conflicting decisions are likely to be rendered with regard to the same subject-matter. In the facts of the case the Deputy Collector has no jurisdiction to consider and grant other or second application under section 43 of the Tenancy Act, particularly when previous one was pending. This submission is, therefore, rejected. In the above view of the matter; I find no substance in the petition. The petition fails and is hereby rejected. Rule is discharged with no order as to costs. .