Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 230 (GUJ)

Patel Kantibhai Ambaramdas v. State of Gujarat

2020-02-04

A.J.DESAI

body2020
JUDGMENT : 1. The present two writ petitions though filed by different persons, are taken up for hearing together in view of the fact that both the petitioners have challenged the orders, which are referred in the prayer clause of the petitions and in both the petitions following prayers have been made: “SPECIAL CIVIL APPLICATION NO.10912 OF 2008: (A) This Hon’ble Court may be pleased to issue the writ of certiorari or any other writ, order or direction in the nature of certiorari calling for the records and proceedings of the impugned orders from the Gujarat Revenue Tribunal and after examining the legality and propriety thereof, further be pleased to quash and set aside the orders passed by the Gujarat Revenue Tribunal dated 23/10/07 and 08/08/08 in Revision Application No.TEN/BA/197 of 2004 and in Review Application No.TEN/CA/34 of 2007 respectively, after declaring the same as illegal and void. (B) During the pendency and final disposal of this petition, this Hon’ble Court may be pleased to stay the effect, execution, operation and implementation of the orders dated 23/10/07 and 08/08/08 passed by the Gujarat Revenue Tribunal. (C) This Hon’ble Court may be pleased to grant ad interim relief in terms of Para 8(B). (D) Any other and further relief which this Hon’ble Court deems fit may kindly be granted.” “SPECIAL CIVIL APPLICATION NO.10913 OF 2008: (A) This Hon’ble Court may be pleased to issue the writ of certiorari or any other writ, order or direction in the nature of certiorari calling for the records and proceedings of the impugned orders from the Gujarat Revenue Tribunal and after examining the legality and propriety thereof, further be pleased to quash and set aside the orders passed by the Gujarat Revenue Tribunal dated 23/10/07 and 08/08/08 in Revision Application No.TEN/BA/197 of 2004 and in Review Application No.TEN/CA/34 of 2007 respectively, after declaring the same as illegal and void. (B) During the pendency and final disposal of this petition, this Hon’ble Court may be pleased to stay the effect, execution, operation and implementation of the orders dated 23/10/07 and 08/08/08 passed by the Gujarat Revenue Tribunal. (C) This Hon’ble Court may be pleased to grant ad interim relief in terms of Para 8(B). (D) Any other and further relief which this Hon’ble Court deems fit may kindly be granted.” 2. (C) This Hon’ble Court may be pleased to grant ad interim relief in terms of Para 8(B). (D) Any other and further relief which this Hon’ble Court deems fit may kindly be granted.” 2. Rule nisi was issued by coordinate bench of this Court on 19/08/2013 directing the parties to the proceedings to maintain status quo with regard to the properties in question. Respondents have filed affidavit-in-reply in the matters opposing to grant any relief, as prayed for, by the petitioners. 3. Short facts, arise from the record, are as under: With regard to the land in question bearing Survey No.1039 sq.meters admeasuring around 3A-24G situated at Village: Hasalpur, Taluka: Viramgam, District: Ahmedabad, entry No.1364 was entered in the year 1956-57 wherein name of respondent no.5 was mutated in the revenue record. By order dated 15/10/1956, entry No.1904 was entered whereby, name of Lakha Hamir, who was cultivating the land was deleted. Subsequently, by order dated 15/12/1956 entry no.1913 was mutated by which name of Ramsingh Mohan was entered in the revenue record since he was cultivating the land in person. By orders dated 10/08/1959 & 31/07/1959, entry No.2003 was mutated in the revenue record pursuant to an order in T.N.C./2138 wherein land bearing survey nos.949, 1039, 542, 909 were granted Certificate as per the provisions of Section 88B of the Bombay Tenancy and Agricultural Act,1948 (hereinafter referred to as “the Act”). On 15/11/1969, Devasthan Inams Abolition Act, 1969 came into force with effect from 15.11.1969 and the provisions of Tenancy Act were made applicable to the Devasthan land by insertion of section 88E in the Tenancy Act. Accordingly on 18/10/1970, entry was made in the revenue record wherein Certificate issued by the Collector under section 88B was cancelled and Tenant was made entitled to purchase the aforesaid Devasthan land. In year 1970, Mamlatdar & ALT registered Tenancy Case No.476 and 477 conducting inquiry under section 32G of the Bombay Tenancy and Agricultural Land Act,1948 and ultimately an order was passed on 11/11/1970 by the Mamlatdar ALT in Tenancy Case No.476 and 477 of 1970, by which, the name of Ramsingh Mohan was ordered to be deleted. Again with regard to the said entry, an objection was raised by respondent no.4 and entry no.3688 was mutated and name of respondent no.4 was entered as tenant. Again with regard to the said entry, an objection was raised by respondent no.4 and entry no.3688 was mutated and name of respondent no.4 was entered as tenant. It was declared that respondent no.4 would be entitled to purchase the aforesaid land and hence price was determined at Rs.787.25 ps. and accordingly entry no.3867 was mutated in the revenue record. Respondent No.4 i.e. tenant paid an amount of Rs.787.25 paise and entry no.4057 was mutated on 14/09/1977 and the land was acquired by respondent no.4 with restrictions under section 43 of the Act. Since the land was restricted in nature and respondent no.4 wanted to remove such restrictions and therefore, he made an application to convert the land from new tenure to old tenure and by order dated 02/11/1996 Mamlatdar granted permission to convert the land into old tenure. Since certain restrictions were imposed at the time of converting the land into old tenure land, respondent No.4 preferred Revision Application No.840 of 1996 and 239 of 1998 before Deputy Collector challenging the order dated 11/11/1970 in Tenancy Case No.476 and 477 for removing restrictions under section 43 of the Act. Accordingly, restrictions were removed by Deputy Collector by passing an order dated 19/12/1998. Since all the restrictions were removed, one of the petitioner namely Patel Kantibhai Ambaramdas purchased the land bearing survey no.1039 whereas Mohammad Kasam purchased the land bearing Survey No.949 by registered sale deed. The petitioners intended to use the land for other than agricultural purposes and therefore, the petitioners made an application under section 65 of the Bombay Land Revenue Code to grant permission to use the land for non-agricultural purposes, which was granted by the District Development Officer vide order dated 10/04/2000. Since all the restrictions under section 43 of the Tenancy Act were removed, revision application was filed by the petitioners and order was modified accordingly. One Kasabhai Yusufbhai Mandli, who imposed himself as social worker, has challenged an order dated 19/12/1998 passed by the Deputy Collector before Gujarat Revenue Tribunal. By order dated 27/09/2001, Gujarat Revenue Tribunal rejected the revision application filed by the said social worker. The said order dated 27/09/2001 became final and there was no further challenge to the said order. State of Gujarat has filed revision application challenging the order of 1998 by which restrictions were lifted in the year 2004 against the tenant before Gujarat Revenue Tribunal. The said order dated 27/09/2001 became final and there was no further challenge to the said order. State of Gujarat has filed revision application challenging the order of 1998 by which restrictions were lifted in the year 2004 against the tenant before Gujarat Revenue Tribunal. The said revision application came to be allowed in favour of the State of Gujarat and order lifting restrictions was quashed and set aside. When the petitioner came to know about the order passed by the Gujarat Revenue Tribunal, he immediately preferred Review Application on several grounds including the ground that the petitioners were not made party by State of Gujarat as well as also on the ground that NA permission was already granted as well as also on the ground of delay and latches on the part of the State of Gujarat in preferring the revision application after a period of 6 years. The said Review Applications came to be dismissed. Hence, these petitions. 4. Mr.D.K.Puj, learned advocate appearing for the petitioners has vehemently submitted that Gujarat Revenue Tribunal has committed an error in allowing the revision application filed by the State of Gujarat in absence of the petitioners and subsequently rejecting the review application though the petitioners were establishing their cases not to interfere with the order, which was passed way back in the year 1998. The land, which was purchased by the petitioners in the year 1997-98 respectively paid the charges for converting the land and for NA use and therefore, there was no reason for state authority to challenge the entry in different proceedings. In support of his submission, he has relied upon the decision rendered in the case of Ravichand Manekchand Sheth V/s. State of Gujarat reported in 2006(2) GLR 1567 as well as in the case of Adambhai Sulemanbhai Desai V/s. State of Gujarat reported in 2004(1) GLR 906 and submitted that orders are required to be quashed and set aside. Apart from above submissions, learned advocate Mr.D.K.Puj would submit that when the revision application was filed at the instance of one social worker and specific contention was raised by the State of Gujarat, the matter is required to be dismissed and accordingly the decision has become final and therefore, revision application filed by the State of Gujarat after a period of six years, could not have been entertained by the Tribunal. He would submit that after converting the land into NA use, the petitioners have constructed the property and the same are used for commercial purposes. In support of his contention of delay, he has relied upon the decision rendered by Hon’ble Apex Court in the case of M/s.Royal Orchid Hotels Limited and another V/s. G. Jayaram Reddy and others reported in 2011(3) GLH 425 as well as decision rendered by this Court in the case of State of Gujarat V/s. Bai Jadavben Wd/o. Kesurbhai Jijibhai reported in 2006 (3) GLH 195 and has submitted that on the ground of delay also, the petitions are required to be allowed and the impugned orders are required to be quashed and set aside. 5. Learned Assistant Government Pleader appearing for the respondents- State authorities has strongly opposed these petitions and has submitted that the impugned orders do not call for any interference under Article 227 of the Constitution of India. 6. I have heard learned advocates appearing for the respective parties. It is evident from the above referred facts that respondent no.4 was declared as tenant and land was converted into old tenure land. Accordingly, the petitioners, who were agriculturalist, had purchased the property in question and ultimately paid appropriate charges for converting the land way back in the year 1998. When NA permission was granted by the authority itself way back in the year 2000, the decision relied upon by learned advocate Mr.D.K.Puj in the case of Ravichand Manekchand Sheth (supra) as well as in the case of Adambhai Sulemanbhai Desai (supra) would be applicable. It has been held in aforesaid two decisions that when State Government itself has granted permission for NA Use, it creates estoppel on the part of the respondent authorities. Apart from this aspect, it is pertinent to note that revision, which was filed by social worker was dismissed by the Gujarat Revenue Tribunal in the year 2001 by observing that State of Gujarat has supported the case of the tenant. It is also pertinent to note that in the revision application, which was preferred by the State of Gujarat at belated stage in the year 2004 has not joined the present petitioners and therefore orders were obtained behind their back though they have purchased the property by registered sale deed and land was converted into old tenure land. It is also pertinent to note that in the revision application, which was preferred by the State of Gujarat at belated stage in the year 2004 has not joined the present petitioners and therefore orders were obtained behind their back though they have purchased the property by registered sale deed and land was converted into old tenure land. Therefore, review application ought to have been examined on merits and Tribunal should have dealt with all the aspects. As stated hereinabove, in my opinion, no fruitful purpose would be served if the matter is remanded to consider review application afresh since neither the original land owner nor any third party is interested in the matter. It is also pertinent to note that after giving NA use permission, the petitioners have put up construction on the land. Hence, each petition is hereby allowed. The impugned orders passed by the Gujarat Revenue Tribunal dated 23/10/07 and 08/08/08 in Revision Application No.TEN/BA/197 of 2004 and in Review Application No.TEN/CA/34 of 2007 respectively are hereby quashed and set aside. Rule is made absolute. Direct service is permitted.