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2015 DIGILAW 152 (GUJ)

GABRUBHAI SUKHABHAI CHAVDA v. JIVABHAI POPATBHAI BHARWAD DECEASED THRO LEGAL HEIRS

2015-02-06

R.M.CHHAYA

body2015
JUDGMENT : 1. As in both these petitions, challenge is common against the same order and the facts are identical, both these petitions were heard together and are hereby disposed of by this common judgment and order. 2. Rule. Learned counsel appearing for the respective respondents waive service of Rule in both the petitions. 3. With consent of learned counsel for the parties, both the petitions are heard for final hearing forthwith. 4. As the pleadings are complete in Special Civil Application No.2086 of 2013, the facts stated in the said petition are taken as basis of this common judgment. 5. Heard Mr.Mihir Thakore, learned Senior Counsel with Mr.Dilip L. Kanojiya, learned counsel for the petitioner, Mr.Shital R. Patel, learned counsel for respondent Nos.1.1 to 1.9 and Mr.Ronak Raval, learned Assistant Government Pleader for respondent Nos.4 and 5. 6. The petitioners by way of these petitions under Articles 226 and 227 of the Constitution of India, have challenged the impugned orders dated 21.06.2012 passed by the Gujarat Revenue Tribunal (hereinafter referred to as “the Tribunal” for short) in Revision Application No.TEN/BA/251/1994, whereby the Tribunal has been pleased to uphold the order dated 25.05.1993 passed by Deputy Collector (Land Reforms), Ahmedabad, in Tenancy Appeal Case No.202 of 1992 and the order in origin dated 19.09.1989 passed by Mamlatdar and ALT, Dhandhuka, in Tenancy Case No.865 of 1985. 7. The facts, which can be culled out from the record of the petition are as under: 7.1 That the land bearing Revenue Survey No.36/2, situated at Village Pipariya, Taluka Dhandhuka, District Ahmedabad, originally belongs to Shamjibhai Becharbhai and Jivabhai Becharbhai, who are respondent Nos.1 and 2 and are permitted to be deleted vide order dated 15.07.2013 passed in Special Civil Application No.16142 of 2012 and vide order dated 16.01.2015 in Special Civil Application No.2086 of 2013. 7.2 The record reveals that respondent No.1 viz. Late Shri Jivabhai Popatbhai Bharwad purchased the land in question by registered Sale Deed executed by its original owners dated 15.02.1979. Pursuant to the said Sale Deed, Entry No.173 came to be mutated in the revenue record on 18.07.1983 and the same was also certified. Late Shri Jivabhai Popatbhai Bharwad sold the land in question to the present petitioners by registered SaleDeed dated 26.06.1987 and entry to that effect being Entry No.187 came to be mutated in the revenue records, which came to be certified on 28.08.1998. Late Shri Jivabhai Popatbhai Bharwad sold the land in question to the present petitioners by registered SaleDeed dated 26.06.1987 and entry to that effect being Entry No.187 came to be mutated in the revenue records, which came to be certified on 28.08.1998. It further reveals that first transaction between the original owners and Shri Jivabhai Popatbhai Bharwad was subjected to the proceedings under Section 84(C) of the Gujarat Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as “the Act” for short). Record further indicates that the notice came to be issued under Section 84(C) of the Act to Shri Jivabhai Popatbhai Bharwad on 18.01.1984. The said proceedings culminated into order dated 19.09.1989. It appears from the tenure of the order itself that Shri Jivabhai Popatbhai Bharwad was not heard. It is also recorded by Mamlatdar and ALT, Dhandhuka that because of want of evidence, transfer by original owners in favour of Shri Jivabhai Popatbhai Bharwad is hit by provisions of the Act as Jivabhai Popatbhai Bharwad is not an agriculturist. It further appears that the said order dated 19.09.1989 was challenged by shri Jivabhai Popatbhai Bharwad by way of filing an appeal under Section 74 of the Act before Deputy Collector (Land Reforms), Appeals, Ahmedabad, which came to be dismissed vide order dated 25.05.1993. 7.3 Being aggrieved by the said order, Shri Jivabhai Popatbhai Bharwad filed Revision Application No.TEN/BA/251/1994 before the Tribunal. The said revision application came to be dismissed as aforesaid and all three orders are impugned in both the petitions before this Court and these petitions under Articles 226 and 227 of the Constitution of India. 8. Mr.Mihir Thakore, learned Senior Counsel for the petitioner has contended as under: (a) It is an admitted position that while passing the order dated 19.09.1989, predecessor of the petitioner as well as the petitioner were not heard. (b) Transaction between Jivabhai Popatbhai Bharwad and the present petitioner took place on 26.06.1987 and entry to that effect being Entry No.187 came to be mutated on 24.08.1987 and the same was certified on 16.04.1988. (c) The authority was well aware because of the availability of public record that the present petitioner has purchased the land from shri Jivabhai Popatbhai Bharwad and even though the petitioner is directly affected and interested person, no notice was ever given to the petitioner of Special Civil Application No.12086 of 2013. (c) The authority was well aware because of the availability of public record that the present petitioner has purchased the land from shri Jivabhai Popatbhai Bharwad and even though the petitioner is directly affected and interested person, no notice was ever given to the petitioner of Special Civil Application No.12086 of 2013. (d) Mr.Thakore, further submitted that such vital facts of breach of principles of natural justice, though clearly bornes out from the record, was not considered by Deputy Collector (Land Reforms), Appeals and the appeal came to be dismissed. (e) It was also contended that even before the Tribunal, all these facts were brought to the notice. It was also pointed out that before the Tribunal, the petitioner i.e. petitioner of Special Civil Application No.2086 of 2013 was made party respondent No.4 and these facts were clearly brought on record, however, the same are not considered by the Tribunal. (f) It was further submitted that during the course of hearing, even learned Special Government Pleader and all the parties contended that in light of the fact that the petitioners were not heard, the matter requires to be remanded to the first authority i.e. Mamlatdar and ALT, Dhandhuka. (g) Sale transaction dated 15.02.1979 was subjected to provisions of Section 84(C) of the Act for the first time in 1983 i.e. after lapse of about more than 5 years and therefore, as held by the Apex Court in catena of decisions, such actions under Section 84(C) could not have been taken beyond reasonable time. Therefore, the very initiation of proceedings under Section 84 (C) of the Act are barred by limitation. (h) Mr. Thakore, learned Senior Counsel further contended that the Tribunal has erred in relying upon the judgments of this Court passed in Special Civil Application No.11825 of 2009 and Special Civil Application No.13443 of 2009. The said judgment of the Hon'ble Single Judge of this Court have been quashed by Division Bench of this Court in the judgment reported in 2011(2) GLR 1679. Therefore, the Tribunal has based its conclusion on the judgments which are not good at law. (i) It was further contended that as such the petitioner of Special Civil Application No.2086 of 2013 is an agriculturist and Mamlatdar and ALT, Barvada has issued certificate dated 16.02.2012 certifying that the petitioner of Special Civil Application No.2086 of 2013 is agriculturist and holds KhedKhata No.34. (i) It was further contended that as such the petitioner of Special Civil Application No.2086 of 2013 is an agriculturist and Mamlatdar and ALT, Barvada has issued certificate dated 16.02.2012 certifying that the petitioner of Special Civil Application No.2086 of 2013 is agriculturist and holds KhedKhata No.34. It was, therefore, submitted that both the petitions deserve to be allowed as prayed for and in order to see that the petitioners get opportunity of adducing proper evidence and hearing, the proceedings are required to be remanded for its fresh determination on merits to Mamlatdar and ALT, Dhandhuka. 9. Per contra, Mr.Ronak Raval, learned Assistant Government Pleader has opposed both the petitions and has supported the impugned orders. Mr.Raval, submitted that actions under Section 84(C) of the Act were initiated against Jivabhai Popatbhai Bharwad within reasonable time. Though the notice was issued, Jivabhai Popatbhai Bharwad did not bother to attend and therefore, it cannot be said that the order passed by Mamlatdar and ALT, Dhandhuka is in breach of principles of natural justice. It was further contended that, it was the duty of subsequent purchaser i.e. the petitioner of Special Civil Application No.2086 of 2013 to bring it to the notice that he is in possession of the land in question and he is the subsequent purchaser. Mr.Raval, further contended that mere entry in Village Form No.7/12 does not mean that the respondents were aware about the transaction and even subsequent transaction and therefore, the Tribunal has rightly held that in the facts of the case, delay is not material as it is an admitted position that Jivabhai Popatbhai Bharwad was not an agriculturist. Mr.Raval, therefore, submitted that both the petitions deserve to be dismissed. No other and further submissions are made by learned counsel for the respective parties. 10. On perusal of the record and proceedings of the petitions, it appear that the first notice was issued fixing hearing on 18.01.1984 by Mamlatdar and ALT, Dhandhuka, under Section 84(C) of the Act in relation to transaction dated 15.02.1979. It appears that the Entry No.173 was mutated on 18.07.1983 and order of the Mamlatdar and ALT clearly spells out that no hearing was given to the petitioners of Special Civil Application No.16142 of 2012. 11. It appears that the Entry No.173 was mutated on 18.07.1983 and order of the Mamlatdar and ALT clearly spells out that no hearing was given to the petitioners of Special Civil Application No.16142 of 2012. 11. Considering the observations made by the Tribunal, it clearly appears the the Tribunal has heavily relied upon the judgment of Special Civil Application No.11825 of 2009 and allied matter and has come to the conclusion that delay would not affect the transfer, which is nullity and void adinitio. At this juncture, it would be appropriate to mention at this stage that the very said judgments were subject matter of Letters Patent Appeal No.2339 of 2009. The Division Bench of this Court has allowed the said appeal and quashed and set aside the orders passed by this Court as well as passed by the other authorities reported in the case of Bhanji Devshibhai Luhar Vs. State of Gujarat & Ors. [2011 (2) GLR 1679]. 12. In light of the same, it is an admitted position that it is quite obvious that the Tribunal has committed an error apparent on face of the records. The whole basis of the impugned judgment passed by the Tribunal is based on the judgments, which are overruled and a good at law. In addition to this, the Tribunal has observed that the petitioner of Special Civil Application No.2086 of 2013 purchased the property, but did not disclose before the lower authorities. Learned counsel for the petitioner has rightly pointed out that as noted by the Tribunal even the State Government had no objection, if the matter is remanded back for its redetermination. 13. In light of the fact that the petitioners of Special Civil Application No.16142 of 2012 was not heard, following the principles of natural justice, the impugned orders ought to have been quashed and set aside and remanded back to the first authority i.e. Mamlatdar and ALT, Dhandhuka for its fresh determination on merits. It appears that even though, it was pointed out that the petitioner of Special Civil Application No.2086 of 2013 is an agriculturist, even such facts are not at all considered by the Tribunal. In light of the peculiar facts and circumstances arising out of these petitions, the impugned orders dated 21.06.2012 passed by the Tribunal in Revision Application No.TEN/BA/251/1994 are hereby quashed and set aside mainly on the ground of non hearing. In light of the peculiar facts and circumstances arising out of these petitions, the impugned orders dated 21.06.2012 passed by the Tribunal in Revision Application No.TEN/BA/251/1994 are hereby quashed and set aside mainly on the ground of non hearing. Considering the fact that even subsequent purchaser i.e. petitioner of Special Civil Application No.2086 of 2013 purchased the land in question on 26.06.1987 and entry which was mutated on 24.08.1987, this Court is of the opinion that interest of justice would be served, if the impugned orders are quashed and set aside and both the petitioners i.e. petitioner of Special Civil Application No.2086 of 2013, who is the subsequent purchaser as well as heirs of deceased shri Jivabhai Popatbhai Bharwad, who has expired in the year 2014, be given fresh opportunity of hearing before Mamlatdar and ALT, Dhandhuka. 14. For the foregoing, the petitions are partly allowed with the following directions: (A) The impugned orders dated 21.06.2012 passed by the Gujarat Revenue Tribunal, in Revision Application No.TEN/BA/251/1994 order dated 25.05.1993 passed by Deputy Collector and order dated 19.09.1989 passed by Mamlatdar and ALT, Dhandhuka are quashed and set aside and the proceedings of Tenancy Case No.865 of 1985 are hereby remanded back to Mamlatdar and ALT, Dhandhuka and restored the file of Mamlatdar and ALT, Dhandhuka. (B) The petitioner of Special Civil Application No.2086 of 2013 i.e. Gabrubhai Sukahbhai Chavda and heirs of petitioner Late Shri Jivabhai Popatbhai Bharwad of Special Civil Application No.16142 of 2012 shall appear before Mamlatdar and ALT, Dhandhuka on 27th February, 2015. (C) Mamlatdar and ALT, Dhandhuka shall permit the petitioners of both the petitions to give/file their reply and to adduce any document(s) upon which they intend to rely. The petitioners shall have to submit such documents, if any, on the same day i.e on 27th February, 2015. (D) Mamlatdar and ALT, Dhandhuka shall thereafter, fix the hearing of Tenancy Case No.865 of 1985 and after hearing all the parties, dispose of the same and pass a fresh reasoned order, without in any manner, being influenced by any of the observations made in the impugned orders including the order of Deputy Collector as well as the Tribunal and take fresh decision independently in accordance with law. (E) Considering the fact that the issue is very old, Mamlatdar and ALT, Dhandhuka, shall endevour to dispose of the proceedings of Tenancy Case No.865 of 1985 preferably within a period of six months from first date of hearing i.e. 16th February, 2015. (F) Mr.Dilip R. Kanojiya as well as Mr.Shital R. Patel, learned counsel for the petitioners in both the petitions assure this Court that the petitioners shall cooperate with the Mamlatdar and ALT in disposal of the proceedings of Tenancy Case No.865 of 1985 and shall not ask for adjournment on any unnecessary ground. With the above directions, both petitions are partly allowed. Rule is made absolute to the aforesaid extent. No costs.