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2016 DIGILAW 1119 (GUJ)

Parmanand Punamchand Doshi v. Mamlatdar Modasa

2016-06-16

B.M.TRIVEDI

body2016
JUDGMENT : B.M. Trivedi, J. 1. Both the petitions under Article 227 of the Constitution of India have been filed by the same petitioner Trust against the same respondents, challenging the orders passed by the Gujarat Revenue Tribunal in respect of the subject land, involving the same issues and, therefore, they are being disposed of by this common order. 2. Special Civil Application No. 4482 of 2015 has been filed by the petitioner Trust through its Administrator, challenging the order dated 21.1.2015 (Annexure-A) passed by the Gujarat Revenue Tribunal in the Revision Application TEN/BA/138/2003 preferred by the respondent No. 3 (now deceased) and Special Civil Application No. 4483 of 2015 has been filed by the petitioner Trust, challenging the order dated 21.1.2015 in Revision Application No.TEN/BA/336/2002 filed by the petitioner before the Gujarat Revenue Tribunal. 3. The chronology of events, in nut-shell, is that the petitioner Trust is the Trust registered under the Bombay Public Trusts Act, 1950 (hereinafter referred to as "the Public Trusts Act") on 1.10.1953 and is being administered by the elected President and the Trustees of the Trust. As per the case of the petitioner, there was a Temple of Ramnath Mahadev, situated on the land in question and some disputes had arisen with regard to the performance of puja and other religious ceremony, between the Trustees of the Trust and the predecessors of the respondent No. 4 Amrutgiri Kalugiri, in respect of which the proceedings before the Charity Commissioner were also filed. The stand of the predecessors of the respondent No. 4 in the said proceedings was that the trust was the owner and they were the priests of the said temple. The Charity Commissioner, after conducting inquiry under Section 19 of the Bombay Public Trusts Act, had ordered to register the said property in the name of the petitioner Trust. In the year 1969, the Gujarat Devasthan Inams Abolition Act, 1969 (hereinafter referred to as "the Devasthan Act") having come into force, again the proceedings were initiated by the predecessors of the respondent No. 4, claiming to be the "Kaniska of the land" (inferior-holder of the said land), and the concerned Mamlatdar, passed the order dated 11.5.1972, in favour of the predecessors of the respondent No. 4. The petitioner Trust thereafter challenged the said order of the Mamlatdar before the Special Secretary, Revenue Department, who vide the order dated 18.4.1973, quashed and set aside the order of the Mamlatdar on the ground that the predecessor of the respondent No. 4 had failed to produce any documents to substantiate their claim. However, in the said order an option was given to the parties to initiate proceedings under Section 32G of the Tenancy Act. It appears that thereafter the predecessor of the respondent No. 4 filed the tenancy proceedings in which the Mamlatdar vide order dated 5.7.1974 fixed the price of the land in question in favour of the predecessor of the respondent No. 4 the said order of Mamlatdar came to be challenged by the petitioner Trust before the Dy. Collector, Modasa, who vide order dated 31.3.1975 set aside the order of Mamlatdar. It is further case of the petitioner that the mother of the respondent No. 4 and the father of the respondent Nos. 5 to 8 i.e. Maduben Amrutgiri and Jivangar Kalugar again initiated Tenancy proceedings before the Mamlatdar, Modasa by filing Ganot Case No. 32.0/1326 of 1994 under Section 32O of the Tenancy Act claiming Tenancy rights under the said Act. The Mamlatdar, vide the order dated 25.4.1996, dismissed the said case, holding that the said predecessor of the respondent Nos. 4 to 8 could not be declared as the tenants under Section 70(b) in absence of any documents on record and, therefore, could not claim tenancy rights under Section 32O of the Tenancy Act. The mutation Entry No. 718 in this regard was recorded in the Revenue record on 27.3.1997, which was also certified by the Deputy Mamlatdar (Annexure-G). The said order dated 25.4.1996 passed by the Mamlatdar remained unchallenged at the instance of the predecessors of the respondent Nos. 4 to 8 and also by the said respondents. According to the petitioners, thereafter one Bharwad Bhagabhai, respondent No. 3 (now deceased) in collusion with the respondent Nos. 4 to 8 filed Tenancy proceedings being Tenancy Case No. 1599 of 1999 in the Court of Mamlatdar, seeking declaration of his tenancy rights under Section 70(b) of the Tenancy Act alleging that the respondent No. 3 was cultivating the land in question since last more than 20 years as the tenant. 4 to 8 filed Tenancy proceedings being Tenancy Case No. 1599 of 1999 in the Court of Mamlatdar, seeking declaration of his tenancy rights under Section 70(b) of the Tenancy Act alleging that the respondent No. 3 was cultivating the land in question since last more than 20 years as the tenant. The Mamlatdar allowed the said case vide the order dated 30th October 1999 (Annexure-H), declaring that the said Bhagabhai Lalabhai Bharwad was the tenant of the land in question under Section 70(b) of the Tenancy Act. 4. Being aggrieved by the said order, the petitioner had preferred the Appeal being Appeal No. 4/2001 before the Deputy Collector, which came to be partly allowed vide the order dated 9.11.2002. The Deputy Collector, while setting aside the order dated 30th October 1999 passed by the Mamlatdar, held that the said Bhagabhai Lalabhai Bharwad was not the tenant or in occupation of the land in question and, therefore, could not be declared as the tenant, however, he further held that the said land was Devasthan Inam, and on the Devasthan Act having come into force, the Inam was cancelled and the Entry No. 235 was made in the revenue record. He therefore, directed the Mamlatdar to take necessary action against the petitioner under the said Devasthan Act. Being aggrieved by the said order dated 9.10.2002 passed by the Deputy Collector, the petitioner Trust as well as respondent No. 3 filed two separate revision petitions before the Revenue Tribunal. The Revenue Tribunal vide the two separate orders dated 21.1.2015 allowed the revision being Revision Petition No. 138 of 2003 filed by the respondent No. 3 and dismissed the revision being Revision Petition No. 336 of 2002 filed by the petitioner Trust. The aggrieved petitioner Trust, therefore, has filed these two petitions invoking the jurisdiction under Articles 226 and 227 of the Constitution of India. 5. It is sought to be submitted by the learned Counsel Ms. Joshi for the petitioner that the Deputy Collector, while holding that the respondent No. 3 could not be declared as tenant under Section 70(b) of the Tenancy Act, should not have directed to take action against the petitioner Trust under the Devasthan Act. 5. It is sought to be submitted by the learned Counsel Ms. Joshi for the petitioner that the Deputy Collector, while holding that the respondent No. 3 could not be declared as tenant under Section 70(b) of the Tenancy Act, should not have directed to take action against the petitioner Trust under the Devasthan Act. She also submitted that the Revenue Tribunal has also committed an error in holding that the respondent No. 3 Bhagabhai Lalabhai Bharwad having been accepted as the tenant by the legal heirs of Kalugar Jivangar in respect of the land in question. According to her, while the predecessors of the respondent Nos. 4 to 8 were not held to be tenants in the proceedings under the Tenancy Act, the respondent No. 3 who was claiming his rights through the respondent Nos. 4 to 8 could not be held to be the tenant. Relying upon the decision of this Court in case of Saiyed Usman Rahematulla Vs. Saiyed Noor Karim Taj and Ors., reported in 1994 (1) GLH 211 , she submitted that the respondent No. 3 and now his heirs could not have derived better tenancy rights when the persons through whom he was claiming tenancy rights were not declared to be the tenants. Relying upon the decision of the Division Bench of this Court in case of Pagi Aataji Kacharaji Vs. State of Gujarat and Anr., reported in 2011 (2) GLH 487 she submitted that the RTS proceedings could not decide the title of the property and that the concerned person is required to approach the Civil Court for deciding such rights. She further submitted that in the instant case, the respondents No. 4 to 8 having failed to obtain any relief in the suit filed in the Civil Court and in the proceedings under the Tenancy Act, had initiated the second innings of tenancy proceedings in collusion with the respondent No. 3 6. However, the learned Counsel Mr. Buch for the legal heirs of respondent No. 3 submitted that there being sufficient material on record to show that the respondent No. 3 was accepted as the tenant by the petitioners as well as by the respondent Nos. 4 to 8, the Revenue Tribunal had rightly held him to be the tenant. However, the learned Counsel Mr. Buch for the legal heirs of respondent No. 3 submitted that there being sufficient material on record to show that the respondent No. 3 was accepted as the tenant by the petitioners as well as by the respondent Nos. 4 to 8, the Revenue Tribunal had rightly held him to be the tenant. He also submitted that after the Devasthan Act having come into force, the land in question had vested in the Government in view of Section 8 of the said Act and, therefore, the order passed by the Collector and confirmed by the Revenue Tribunal should not be interfered with. Nobody appears for the respondent Nos. 4 to 8 though duly served. 7. Having regard to the submissions made by the learned Advocates for the parties and to the documents on record, it appears that there are certain undisputed facts. It is not disputed that the predecessors of the respondent Nos. 4 to 8 had filed the tenancy proceedings before the Mamlatdar, Modasa claiming tenancy rights, however, the Mamlatdar vide the order dated 25.4.1996 had dismissed the said case holding that the said predecessors of the respondent Nos. 4 to 8 could not be held to be the tenants. The said order dated 25.4.1996 has remained unchallenged till this date at the instance of the said predecessors of the respondent Nos. 4 to 8. The Entry No. 718 was recorded in that regard on 27.3.1997 and that entry also has remained unchallenged. It is also not disputed that the respondent No. 3 Bharwad Bhagabhai (now deceased) had initiated the tenancy proceedings being No. 1599 of 1999 in the Court of the Mamlatdar claiming tenancy rights through the predecessors of the respondent Nos. 4 to 8 and seeking declaration under Section 70(b) of the Tenancy Act, after the predecessor of the respondent Nos. 4 to 8 had failed to obtain any relief in their favour. 8. Under the circumstances, the Court finds substance in the submissions made by Ms. Joshi that the respondent No. 3 had initiated the proceedings in collusion with the respondent Nos. 4 to 8, who had lost the tenancy proceedings in the first round. That part, the respondent No. 3 Bhagabhai Bharwad was claiming tenancy rights through the predecessors of respondent Nos. 4 to 8. In the opinion of the Court, when the said predecessors of the respondent Nos. 4 to 8, who had lost the tenancy proceedings in the first round. That part, the respondent No. 3 Bhagabhai Bharwad was claiming tenancy rights through the predecessors of respondent Nos. 4 to 8. In the opinion of the Court, when the said predecessors of the respondent Nos. 4 to 8 were not held to be tenants in respect of the land in question, the Revenue Tribunal has committed grave error of law apparent on the face of record in holding the respondent No. 3 to be the tenant in respect of the land in question. As rightly submitted by Ms. Joshi, relying upon the decision in case of Saiyed Usman (supra), the first condition for becoming a deemed tenant under Section 4 of the Tenancy Act is that a person should be lawfully cultivating the land in question. 9. So far as the provisions of the Devasthan Act are concerned, Section 8 of the said Act reads as under:- "8. All public roads, etc., situate in Devasthan land to vest to Government - All public roads, lanes and paths, the bridges, ditches, dikes and fences, on or beside the same, beds of creeks below high water mark, and beds of rivers, streams and nallas, lakes, wells, tanks, canals and water course and all standing and flowing water, and all lands (excluding lands used for building or other non-agricultural purposes) in respect of which no person is deemed to be an occupant under this Act, and all mines whether being worked or not and minerals, whether discovered or not and all quarries, which are situate within the limits of any Devasthan land shall except in so far as any rights of any person other than the inamdar may be established in or over the same and except as many otherwise be provided by any law for the time being in force, vest in, and shall be deemed to be with all rights in or over the same or appertaining thereto the property shall be deemed to have been extinguished and it shall be lawful for the Collector, subject to the general or special orders of the State Government, to dispose of them as he deems fit, subject always to the rights of way and other rights of the public or of individuals legally subsisting." 10. From the bare reading of the said provision, it clearly transpires that the land in respect of which no person was deemed to be the occupant under the said Act, such land would vest in the Government. In the instant case, the petitioner Trust has been held to be the occupant after the commencement of the said Act and till the impugned orders were passed. The learned Counsels for the respondents have failed to point out any order of any authority under the Devasthan Act for vesting the said land in question in the Government by virtue of Section 8 of the Devasthan Act. Under the circumstances, the Deputy Collector could not have directed the Mamlatdar, Modasa to take action under the Devasthan Act, more particularly while deciding the Appeal of the Trust under Section 74 of the Tenancy Act. It is well settled legal position that the authority exercising jurisdiction under one enactment could not have exercised the jurisdiction vested in him under the other enactment. In this regard, it would be beneficial to refer to the observations made by this Court in the case of Evergreen Apartment Coop. Housing Society Vs. Special Secretary, Revenue Department, Gujarat State, reported in 1991 (1) GLR 113 which reads as under:- "12....It is quite possible that an officer of the Revenue Department may be occupying different capacities under different enactments. That, however, would not empower him to exercise any powers under one enactment while proceeding under another enactment. So far as the proceedings under Rule 108 of the Rules, popularly known as RTS proceedings, are concerned, it is well settled that the entries made in the revenue records have primarily a fiscal value and they do not create any title. Such mutations have to follow either the documents of title or the order passed by competent authorities under special enactments. Independently the Revenue Authorities, as mentioned in Rule 108 of the Rules, cannot pass orders of cancelling the entries on an assumption that the transaction recorded in the entry are against the provisions of a particular enactment. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed...." 11. In the instant case, the Dy. Whether the transaction is valid or not has to be examined by the competent authority under the particular enactment by following the procedure prescribed therein and by giving an opportunity of hearing to the concerned parties likely to be affected by any order that may be passed...." 11. In the instant case, the Dy. Collector, therefore, had committed an error of law in directing the Mamlatdar to take action against the petitioner Trust under the Devasthan Act while deciding the Appeal No. 4/2001 of the petitioner under Section 74 of the Tenancy Act. The Tribunal has also, therefore, committed an error of law in confirming the said order of the Dy. Collector, in the Revision Application No. 336/2002. 12. In that view of the matter, the impugned orders passed by the Tribunal in Revision Petition No. 130 of 2003 and Revision Petition No. 336 of 2002 are ex facie illegal and bad in law, which deserve to be quashed and set aside. The order dated 9.11.2002 passed by the Dy. Collector to the extent of direction to take action against the petitioner under the Devasthan Act, also being illegal, deserves to be set aside. The impugned orders, therefore, are hereby quashed and set aside. Both the petitions stand allowed accordingly. Rule is made absolute accordingly.