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2016 DIGILAW 1110 (GUJ)

GOSWAMI AMRUTGIRI KALUGIRI v. DEPUTY COLLECTOR

2016-06-15

BELA M.TRIVEDI

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JUDGMENT : BELA M. TRIVEDI, J. 1. The petitioners have filed the present petition under Article 227 of the Constitution of India, challenging the orders passed by the respondent Nos.1, 2 and 3 respectively at Annexures-D, E and F. 2. The short facts are that as per the case of the petitioners, the land bearing Survey No.15 of Village Bajkot, Taluka Modasa, belonging to the respondent No.4 Trust was occupied and cultivated by the ancestors of the petitioners, Shankargiri Mohangiri and Kalugiri Mohangiri as the tenants. According to the petitioners, the respondent No.4 Trust was administering and maintaining the Temple called Ramnath Mahadev Temple and the names of the ancestors of the petitioners were shown as the cultivators and tenants since more than 70 years. When the ancestors of the petitioners i.e. Shankargiri Mohangiri expired, the Revenue Entry was recorded on 24.12.1968 to bring his legal heirs on record and when the father of the petitioners Kalugiri had expired, Revenue Entry No.765 was recorded to bring the present petitioners on record in Village Form No.6. The said Entry No.765 was duly certified by the competent authority. However, the respondent No.4 filed an appeal being R.T.S. Appeal No.40 of 2002 before the Deputy Collector, Modasa, who vide the order dated 25.10.2002 (Annexure-D) allowed the said appeal and set aside the Succession Entry No.765 and further directed the Mamlatdar to take appropriate action to enter the names of the Trustees of the respondent No.4 Trust as the occupants of the land in question. Being aggrieved by the said order, the petitioners had preferred RTS Revision Petition No.197 of 2002 before the Collector, Sabarkantha, who vide the order dated 30.11.2004 (Annexure-E) dismissed the same. The petitioners thereafter filed the Revision Application No.4 of 2005 before the Special Secretary (Appeals), Revenue Department - respondent No.3, who vide the order dated 12.1.2012 (Annexure-F) dismissed the same. Being aggrieved by the said orders passed by the said Authorities (Annexures-D, E, and F), the petitioners have filed the present petition. 3. It appears that the present petition was amended in view of the subsequent order dated 21.2.2015 passed by the Gujarat Revenue Tribunal in the Revision Petition No.138 of 2003 filed by the legal heirs of the deceased Bharwad Bhagabhai Lalabhai, who claimed to be the sub-tenants of the petitioners in respect of the land in question. 3. It appears that the present petition was amended in view of the subsequent order dated 21.2.2015 passed by the Gujarat Revenue Tribunal in the Revision Petition No.138 of 2003 filed by the legal heirs of the deceased Bharwad Bhagabhai Lalabhai, who claimed to be the sub-tenants of the petitioners in respect of the land in question. The petition has been resisted by the respondent No.4 Trust by filing the reply as well as by producing on record various documents, mainly contending, inter alia, that the predecessor-intitle of the petitioners i.e. Maduben Amrutpuri, mother of petitioner No.1 and Jivangar Kalugar, father of the petitioner Nos.2 to 5 having filed the proceedings under Section 32(o) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the Tenancy Act"), claiming Tenancy rights over the land in question were dismissed by the Mamlatdar and Agricultural Tribunal, Modasa in Tenancy Case No.1326 of 1994 vide the order dated 25.4.1996 and the said order having remained unchallenged by the said predecessors of the petitioners and the petitioners themselves, the names of the petitioners were rightly deleted from the revenue record. 4. At the outset, it may be stated that though the case has chequered history and the arguments were heard at length along with the other two petitions, which have been filed by the respondent No.4 Trust, challenging the orders of the Gujarat Revenue Tribunal, the controversy which is raised in the present petition moves in a very narrow compass as to whether the Deputy Collector, Modasa, vide the order dated 25th October, 2002 could have set aside the Entry No.765 in the Appeal filed by the respondent No.4-Trust under Rule 108(5) of the Gujarat Land Revenue Rules (hereinafter referred to as “the Revenue Rules”) or not. 5. Though it has been contended by the learned Advocate, Mr. Japee for the petitioners that the Deputy Collector could not have entertained the Appeal of the respondent No.4 Trust against the Entry No.765 made on the basis of the succession on the death of the predecessor of the petitioners, the Court does not find any substance in the submission. Apart from the fact that number of proceedings were going on in respect of the land in question with regard to the occupancy and tenancy rights, it is not disputed by the learned Counsel Mr. Apart from the fact that number of proceedings were going on in respect of the land in question with regard to the occupancy and tenancy rights, it is not disputed by the learned Counsel Mr. Japee for the petitioners that the order dated 25.4.1996 passed by the Mamlatdar and Agricultural Tribunal, Modasa in Tenancy Case No.1326 of 1992, produced by the respondent No.4 along with its reply as Annexure-IV, dismissing the proceedings under Section 32-O, holding that the predecessors of the petitioners had failed to prove their tenancy rights, had remained unchallenged at the instance of the said predecessors and also at the instance of the present petitioners. The said order of the Mamlatdar has been taken into consideration by the Deputy Collector, Modasa while cancelling the Entry No.765 made on 2.6.1999 in favour of the petitioners after the death of their predecessors. The said order of the Deputy Collector i.e. respondent No.1 has been confirmed by the respondents No.2 and 3 in the respective revision petitions filed by the petitioners. Apart from the fact that there are concurrent findings of facts recorded by the three authorities and, therefore, this Court is not inclined to interfere with the same, exercising the jurisdiction under Article 227 of the Constitution of India, when the predecessors of the petitioners have not been declared to be the tenants having tenancy rights under the Tenancy Act, the said authorities have rightly cancelled the Entry made in the revenue record in favour of the petitioners after the death of their predecessors, and directed to enter names of the trustees of the respondent No.4 Trust. 6. It is pertinent to note that order of Revenue Tribunal dated 21.2.2015 in Revision Application No.138 of 2003 holding one Bharwad Bhagabhai as the sub-tenant of the present petitioners, has been set aside by this Court today in the Special Civil Application No.4482 of 2015 filed by the respondent No.4 Trust. 7. In that view of the matter, the petition being devoid of merits, deserves to be dismissed and accordingly dismissed. Petition dismissed.