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2016 DIGILAW 1197 (GUJ)

Narsing Manganlal Padhiyar v. Firozsha Ratansha Bulsarana

2016-06-28

BELA M.TRIVEDI

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JUDGMENT : 1. The present petition has been filed under Article 227 of the Constitution of India by the petitioner, challenging the order dated 18.11.2011 passed by the Gujarat Revenue Tribunal (hereinafter referred to as "GRT") in Revision Application No. TEN/BS/1302/1993. 2. The chronology of chequered history of case as transpiring from the record is that the petitioner had made an application before the Mamlatdar and ALT, Valsad, seeking declaration under Section 70(b) of the Bombay Tenancy and Agricultural Lands Act, 1948 (hereinafter referred to as "the said Act") that he was the tenant in respect of the land situated at Block No.52 of Village Vankal, Taluka & District Vankal. The Mamlatdar and ALT, vide order dated 2.7.1985 allowed the said application, declaring the petitioner to be the tenant of the land in question. Being aggrieved by the said order, the respondent No.1, owner of the land had preferred the appeal before the Deputy Collector, who dismissed the said appeal and confirmed the order passed by the Mamlatdar. The said order passed by the Deputy Collector was challenged by the respondent No.1 before the GRT by filing the Revision Application No.80/1986. Pending the said Revision Application before the GRT, the respondent No.2 claiming to be the subsequent purchaser of the land in question had submitted an application for being impleaded as party in the said Revision Application. The said application of the respondent No.2 came to be dismissed by the GRT vide order dated 22.9.1988. The said order remained unchallenged at the instance of the respondent No.2. The GRT thereafter allowed the said Revision Application No.80/1986 filed by the respondent No.1 vide order dated 20.7.1989, setting aside the orders passed by the Deputy Collector as well as by the Mamlatdar and remanded the case to the Mamlatdar and ALT afresh. It appears that pending the said proceedings, the respondent No.2 had filed the Suit in the Civil Court being Regular Civil Suit No.28/1983, seeking declaration and injunction against the petitioner in respect of the land in question and had also filed an Application Exh.5, seeking temporary injunction pending the said suit. The said Application Exh.5 was rejected by the trial Court vide order dated 21.8.1984 and the appeal filed by the respondent No.2 against the said order was dismissed by the Appellate Court. The said Application Exh.5 was rejected by the trial Court vide order dated 21.8.1984 and the appeal filed by the respondent No.2 against the said order was dismissed by the Appellate Court. The Revision Application filed by the respondent No.2 against the said order was also dismissed by the High Court vide order dated 21.4.1987. 3. The Mamlatdar and ALT, after the case was remanded by the GRT, recorded the evidence afresh and again declared the petitioner as the tenant in respect of the land in question vide the order dated 12.3.1990. Being aggrieved by the said order, the respondent No.1 had preferred the appeal before the Deputy Collector, which came to be partly allowed vide order dated 30.9.1993. 4. The Deputy Collector remanded the case to the Mamlatdar on the ground that the Mamlatdar had not decided the case as per the direction given by the Tribunal in its order dated 20.7.1989. Being aggrieved by the said order of the Deputy Collector, the petitioner preferred the revision being Revision Application No.302/1993 before the GRT. In the said Revision Application, the respondent No.2 again made an application for being impleaded as party respondent, suppressing the fact that his application for being impleaded as party was already dismissed by the Tribunal in the first round of revision being Revision Application No.80/1986. The Tribunal vide order dated 12.6.2006 directed to hear the said application of the respondent No.2 at the time of final hearing of the revision. Being aggrieved by the said order, the petitioner preferred Review Application, which came to be dismissed by the Tribunal by the order dated 18.3.2008. The petitioner, therefore, filed the writ petition being Special Civil Application No.12112 of 2008 for setting aside the orders dated 12.6.2006 and 18.3.2008 passed by the Tribunal. The said SCA came to be dismissed by this Court vide order dated 18.12.2009. The Letters Patent Appeal preferred by the petitioner against the said order was also dismissed. As a result thereof, the order of GRT dated 12.6.2006 to hear the application of the respondent No.2 for being impleaded as party respondent, along with the main Revision Application stood confirmed. The GRT thereafter heard the respondent No.2 and dismissed the Revision Application No.302/1993 preferred by the petitioner, vide order dated 18.11.2011. The aggrieved petitioner, therefore, has filed the present petition. 5. The learned Advocate Ms. The GRT thereafter heard the respondent No.2 and dismissed the Revision Application No.302/1993 preferred by the petitioner, vide order dated 18.11.2011. The aggrieved petitioner, therefore, has filed the present petition. 5. The learned Advocate Ms. Vyas, for the petitioner vehemently submitted that the petitioner having been declared ‘tenant’ twice by the Mamlatdar, there was no need to remand the matter third time by the Deputy Collector. She further submitted that the respondent No.2 had suppressed the material fact from the GRT that earlier his application for impleading him as party respondent in the revision proceedings was already dismissed and, therefore, he had no right to be heard. 6. Nobody appears for the respondent No.1 though duly served. The learned Counsel for the respondent No.2, however, submitted that the respondent No.2 having purchased the land in question from the respondent No.1 through registered sale deed, his interest would be adversely affected, if he was not heard in the proceedings. He fairly submitted that the respondent No.2 had not challenged the order dated 31.1.1987 passed by the GRT in Revision Application No.80/1986, rejecting his application for being impleaded as party respondent in the said proceedings. 7. In the instant case, it appears that in the first round of litigation, the Mamlatdar and ALT had declared the petitioner as the tenant and the said order was also confirmed by the Deputy Collector. However, the said orders having been challenged by the respondent No.1 before the GRT, the GRT had remanded the case to the Mamlatdar for deciding it afresh. In the said proceedings before the GRT the respondent No.2 had already made application for being joined as party respondent and the said application was rejected by the GRT vide order dated 31.1.1987. The said order was not further challenged by the respondent No.2. It is pertinent to note that the respondent No.2 had also not challenged the order dated 2.7.1985 passed by the Mamlatdar and the order passed by the Deputy Collector confirming the said order passed by the Mamlatdar. After the remand of the case, the Mamlatdar again declared the petitioner as tenant in respect of the land in question. The respondent No.2 did not make any application for being joined as the party in the proceedings before the Mamlatdar. The said order of the Mamlatdar was challenged by the respondent No.1, however, not by the respondent No.2. After the remand of the case, the Mamlatdar again declared the petitioner as tenant in respect of the land in question. The respondent No.2 did not make any application for being joined as the party in the proceedings before the Mamlatdar. The said order of the Mamlatdar was challenged by the respondent No.1, however, not by the respondent No.2. The Deputy Collector, instead of deciding the case, remanded the case to the Mamlatdar for deciding it afresh vide order dated 30.9.1993 under the guise that the Mamlatdar had not proceeded in accordance with the order of the Tribunal passed on 20.7.1989. 8. In the opinion of the Court, the said order passed by the Deputy Collector, remanding the case for the second time to the Mamlatdar was absolutely wrong. The Deputy Collector should have decided the appeal on merits and should not have remanded the case to the Mamlatdar second time. The GRT also, by the impugned order, has confirmed the said order of the Deputy Collector on the ground that the respondent No.2 was not heard. When the application of the respondent No.2 was already rejected by the GRT in the first round of litigation and when the respondent No.2 had not bothered to challenge that order dated 12.3.1990, there was no question of hearing the respondent No.2 in the proceedings before the Mamlatdar. It is pertinent to note that the respondent No.2 had also failed to obtain any interim order in the Civil Suit filed by him against the petitioner with regard to the possession of the land in question. It is true that the order of the Tribunal dated 12.6.2006 directing to hear the application of the respondent No.2 for being joined as party respondent in the revision along with the main revision application was confirmed by this Court, and accordingly the respondent No.2 was heard in the said revision application by the Tribunal before passing the impugned order, nonetheless, the proceedings initiated by the petitioner, seeking declaration under Section 70(b) of the Tenancy Act was against the original owner i.e. respondent No.1 only. The respondent No.2 claiming to be the subsequent purchaser had never bothered to be joined as party in the said proceedings. He submitted the application for being joined as party in the revision applications before the GRT only. The respondent No.2 claiming to be the subsequent purchaser had never bothered to be joined as party in the said proceedings. He submitted the application for being joined as party in the revision applications before the GRT only. If the respondent No.2 was so much aggrieved, he should have challenged the earlier order dated 31.1.1987 passed by the Tribunal rejecting his application for being joined as party respondent before this Court or should have made application in the proceedings, pending before the Mamlatdar after the remand of the case by the Tribunal. He having failed to do so, the Tribunal has materially erred in joining him as party respondent No.2 in the revision application, while passing the impugned order on 18.11.2011. The said order being ex facie illegal, the same deserves to be quashed and set aside. The GRT vide the impugned order has also confirmed the order of Deputy Collector remanding the case to the Mamlatdar, though the Mamlatdar had twice declared the petitioner as the tenant. 9. Such an approach on the part of the higher authority to remand the cases time and again, without deciding the proceedings of appeal or revision, as the case may be, is highly inappropriate and deserves to be condemned. Such an approach, not only causes hardships to the parties to the proceedings but also leaves them in the state of uncertainty, leading to multiplicity of proceedings. The appellate authority and revisional authority are meant to correct the mistakes committed by the lower authority. They are expected to decide the cases strictly on merits and in accordance with law. In rare cases, they should resort to the course of remanding cases. In the instant case, the petitioner having been declared tenant twice by the Mamlatdar, there was no question of Deputy Collector again remanding the case to Mamlatdar. Such order having been confirmed by the GRT without application of mind, both the impugned orders deserve to be set aside. 10. In the result the impugned order dated 18.11.2011 passed by the GRT and the order dated 30.9.1993 passed by the Collector are quashed and set aside. The petition stands allowed accordingly. Rule is made absolute.