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2024 DIGILAW 1793 (GUJ)

VRUNDAVAN CO. OPERATIVE HOUSING SOCIETY LTD. v. STATE OF GUJARAT

2024-09-02

PRANAV TRIVEDI, SUNITA AGARWAL

body2024
JUDGMENT : SUNITA AGARWAL, C.J. 1. The Letters Patent Appeal No. 424 of 2021 is directed against the judgment and order dated 15.02.2021 passed by the learned single Judge in dismissing the writ petition, wherein the challenge was to the show-cause-notice dated ___.10.2020 (undated) being Ganot Case/Santej 84-C/02/2020 issued under Form-22 Rule 50 under Section 84B(1) of the Gujarat Tenancy and Agricultural Land Act, 1948 (hereinafter referred to as ‘the Tenancy Act’ for the sake of brevity) by the Mamlatdar. 2. The contention of the petitioner society before the learned single Judge was that the land-in-question being Survey No. 1343 at Santej was purchased by the petitioner society alongwith other parcels of lands in the year 1982-1983. The subject land was sold by the vendors by a registered sale deed and mutation entries with respect to all the lands were posted in favour of the petitioner society. The case of the petitioner society, as noted by the learned single Judge, was that in respect of other parcels of lands namely Block Nos. 1339, 1114, 1109, 1110, 1123, 1254, 1261 and 1341, the proceedings under Section 84C of the Tenancy Act were initiated and concluded in favour of the petitioner society. Same proceeding for another parcel of land cannot be initiated under the garb of one parcel of land being missing in the said proceedings. The contention was that the impugned show-cause-notice had been issued in collusion with the vendors by the Mamlatdar under Section 84B of the Tenancy Act and is without jurisdiction, inasmuch as, the provisions of Section 84B is applicable only to the transactions entered into between 15.06.1955 and 21.07.1956, whereas the sale of the land-in-question took place in the year 1982. The submission of the petitioner was that the show-cause-notice issued after 35 years of the registration of the sale deed (in the year 1982) was bad being grossly delayed. On an application moved by the vendors for impleadment before the writ court, it was argued that the vendors are neither necessary nor proper parties and they cannot be permitted to participate in the writ proceedings once they are not the affected parties having already sold the land-in-question and pocketed the sale consideration. In all 44 suits filed by the vendors have already been dismissed and the dispute has attained finality. In all 44 suits filed by the vendors have already been dismissed and the dispute has attained finality. The Civil Application No. 1 of 2021 filed by the vendors was, thus, liable to be rejected outrightly. 3. Taking note of the above submissions, the learned single Judge has noted that whether the impugned notice was issued under Section 84B or 84C of the Tenancy Act is not a question, which is to be decided by this Court under Article 226 of the Constitution of India, inasmuch as, the petitioner has straightway come to this Court without even offering reply to the said notice. Further, on a comparison of the provisions of Section 84B and 84C of the Tenancy Act, it was noted by the learned single Judge that a reading of Section 84C makes it evident that where in respect of a transfer or acquisition of any land made on or after the commencement of the Amending Act, 1955, the Mamlatdar suo motu or on the application of any person interested in such land has reason to believe that such transfer or acquisition is invalid under any of the provisions of the Tenancy Act, shall issue a notice and hold an inquiry as provided for in Section 84B and decide whether the transfer or acquisition is valid or not. Rule 50 of Rules framed under the Tenancy Act further shows that a notice to be issued by the Mamlatdar under sub-section (1) of Section 84B shall be in form XXII. It is, thus, opined by the learned single Judge that reading of the provisions of Section 84B(1)(a) makes it clear that the said provision takes within its fold the instances of contravention of Section 63 or 64 as it stood before the commencement of the Amending Act, 1955. For any transfer or acquisition made on or after the commencement of the Amending Act, 1955, the provisions of Section 84C(1) would be attracted. The result is that the notice in Form XXII, which is a format for both the purposes, i.e. for adjudication of transfers under Section 84B or Section 84C of the Tenancy Act, has been issued to the petitioner. The impugned notice suggests that the transfer of the land-in-question is in contravention of Section 84C of the Tenancy Act and that it is a notice under Section 84C of the Tenancy Act. The impugned notice suggests that the transfer of the land-in-question is in contravention of Section 84C of the Tenancy Act and that it is a notice under Section 84C of the Tenancy Act. Merely because the the format mentions the name of the vendors, that by itself would not be a ground to presume it to be a notice under Section 84B of the Tenancy Act. 4. On the plea of delay that the proceedings had been initiated after 35 years of the sale, the learned single Judge has categorically recorded that alongwith the affidavit filed on behalf of the State, two notices dated 20.04.1994 and 27.02.2020 were placed on record. The petitioner did not challenge the notice dated 20.04.1994 whereby the proceedings were initiated and further has suppressed this vital fact of Notice issued in 1994. The finding is that it seems that for other parcels of lands purchased by the sale deed of the year 1982, the proceedings under Section 84C had been concluded, but for the land-in-question i.e. Block No. 1343, the first notice was issued on 20.04.1994 and the proceedings could not be brought to its logical end. With these findings, the learned single Judge has held that the petitioner is guilty of suppression of material facts and opined that he cannot be permitted to argue that the notice-in-question be dropped on the analogy of other 8 blocks. 5. Be that as it may, all the issues raised by the petitioner in the writ petition have been left open to be agitated before the Mamlatdar in its response to the show-cause-notice, which was under challenge before the writ court. The learned single Judge has opined that the Court does not want to adjudicate either way to prejudice the rights of either parties and the Mamlatdar can take proper decision on all the aspects as and when raised by the petitioner in reply to the impugned show-cause-notice. 6. Taking note of the above findings, we may further record that the instant Letters Patent Appeals were presented and registered on 04.05.2021 and were adjourned on the dates fixed for admission either on the request or on the leave note sent by the learned counsel appearing for the appellant. 6. Taking note of the above findings, we may further record that the instant Letters Patent Appeals were presented and registered on 04.05.2021 and were adjourned on the dates fixed for admission either on the request or on the leave note sent by the learned counsel appearing for the appellant. The connected Letters Patent Appeal No. 425 of 2021 has been filed challenging the order of allowing Civil Application No. 1 of 2021 filed by the persons claiming to be the real owners and legal occupiers of the land bearing Block No. 1343 in the writ petition namely Special Civil Application 16875 of 2020. Both the appeals were admitted by an order dated 25.10.2021. 7. During the pendency of these appeals, a Civil Application No. 3 of 2021 was filed by the appellant seeking permission to challenge the final order dated 22.09.2021 passed by the Mamlatdar in Case No. Ganot/Case/Santej84-C/02 of 2020 after dismissal of the writ petition vide judgment and order dated 15.02.2021. While admitting the appeals on 25.10.2021, it was noted by the Bench that the application challenging the order dated 22.09.2021 has been filed during the pendency of the present appeals and since the very issue of initiation of the proceedings for alleged violation of the conditions stipulated under the Tenancy Act is under challenge in the appeal, the respondent authorities shall not precipitate the matter pursuant to the order dated 22.09.2021 passed by the Mamlatdar. At the same time, it was directed that the appellant shall not change or alter the nature of the property-in-question during the pendency of the appeals. 8. However, it is pertinent to note that the Civil Application No. 3 of 2021 filed and registered on 25.10.2021 has been dismissed as withdrawn on the prayer made by the learned counsel for the applicant vide order dated 23.11.2021. 8. However, it is pertinent to note that the Civil Application No. 3 of 2021 filed and registered on 25.10.2021 has been dismissed as withdrawn on the prayer made by the learned counsel for the applicant vide order dated 23.11.2021. We may further note that while granting the permission to the learned advocate appearing for the applicant to withdraw the said application though no liberty was granted by this Court, but another application, namely Civil Application No. 4 of 2021, has been filed and registered on 6.12.2021 with the same prayer for seeking permission to amend the memo of the Letters Patent Appeals to add the prayer for quashing of the final order dated 22.09.2021 passed by the Mamlatdar, on the ground that the said order has been passed without offering effective opportunity of hearing to the appellant/original petitioner. 9. Considering the above, we may record that with the withdrawal of the Civil Application No. 3 of 2021 vide order dated 23.11.2021, the effect and operation of the order dated 25.10.2021, which was passed with the admission of the appeals, has been obliterated. The result is that there remain no restraint upon the respondent authorities to proceed pursuant to the order dated 22.09.2021. 10. Be that as it may, in view of the unconditional withdrawal of the Civil Application No. 3 of 2021, the Civil Application No. 4 of 2021 for the same relief to seek amendment of the LPA to challenge the order dated 22.09.2021 by the Mamlatdar is not maintainable. Further, there is no recall of the order dated 23.11.2021 of dismissal of the Civil Application No. 3 of 2021, as withdrawn on the prayer made by the learned counsel for the appellant. The prayer made in the subsequent Civil Application No. 4 of 2021 seeking permission to amend the memo of the appeal to add the prayer to challenge to the order dated 22.09.2021 passed by the Mamlatdar on the premise that the proceedings conducted by the Mamlatdar, is abuse of process of law, therefore, is liable to be turned down. The result is that the appellant has to avail the remedy available in law to challenge the order passed by the Mamlatdar dated 22.09.2021. 11. This Court, therefore, left with the only question of challenge to the show-cause-notice un-dated ___.10.2020, original subject matter of challenge before the writ court. The result is that the appellant has to avail the remedy available in law to challenge the order passed by the Mamlatdar dated 22.09.2021. 11. This Court, therefore, left with the only question of challenge to the show-cause-notice un-dated ___.10.2020, original subject matter of challenge before the writ court. As noted by the writ court and it could not be disputed before us that the proceedings under Section 84C of the Tenancy Act, 1948 with respect to the parcel of land bearing Block No. 1343, namely the land-in-question was initiated with the notice dated 20.04.1994 and the notice under challenge before the writ court un-dated ___.10.2020 was in continuation of the aforesaid notice of the year 1994. We are, thus, not impressed with the submission of the learned counsel for the appellant that the proceedings initiated by the Mamlatdar with the notice, subject matter of challenge, is liable to be quashed for the delay in initiation of the same. 12. There is no challenge to the findings returned by the learned single Judge that the original petitioner, namely the appellant herein is guilty of suppression of material facts namely the first notice with respect to the land-in-question having been issued on 20.04.1994. We do not find any error in the findings returned by the learned single Judge that the petitioner is guilty of suppression of the material fact, inasmuch as, the petitioner has not come with the clean hands to bring before the court the factum of issuance of the notice dated 20.04.1994 with respect to the land-in-question, which proceedings could not be brought to its logical end. There is no reason to interfere in the findings that the notice dated 20.04.1994 and 27.02.2020, which have been placed on record by the learned Assistant Government Pleader in the affidavit filed on behalf of the State before the writ court, have not been challenged by the appellant. The issues pertaining to the correctness of the show-cause-notice and the exemption allegedly available under Section 64A prior to its deletion, have been left open by the learned single Judge. The fact that after dismissal of the writ petition vide judgment and order dated 15.02.2021 with the passing of the final order dated 22.09.2021 by the Mamlatdar, the cause of action for filling the instant appeals does not survive. 13. The fact that after dismissal of the writ petition vide judgment and order dated 15.02.2021 with the passing of the final order dated 22.09.2021 by the Mamlatdar, the cause of action for filling the instant appeals does not survive. 13. The contention of the learned counsel for the appellant that the initiation of the proceedings by the Mamlatdar with the notice un-dated __.10.2020, subject matter of challenge before the writ court was bad from its inception, is found to be devoid of substance in view of the findings returned by the learned single Judge. In the analysis of the matter brought before the learned single Judge, it is categorically recorded that the paragraph No. 1 of the notice impugned indicates that this is a notice under Section 84C of the Tenancy Act and the notice suggests that the proceedings had been initiated for transfer of land-in-question in contravention of Section 84C of the Tenancy Act. The notice is in proper format, which is common for both the purposes, i.e. for adjudication of transfers under Section 84B or Section 84C of the Tenancy Act and for the fact that the format mentions the name of the vendors itself, would not be a ground to term it to be the notice under Section 84B. We are not convinced with the argument of the learned advocate for the appellant to interfere in the reasoning given by the learned single Judge that the notice impugned does not suffer from jurisdictional defect for being issued beyond the reasonable time. 14. For the fact that the original petitioner/appellant herein has not come with clean hands before the learned single Judge, we do not find any good ground to sustain the challenge to the judgment and order passed by the learned single Judge dated 15.02.2021. 15. However, on the merits of the order final passed by the Mamlatdar dated 22.09.2021, once we have reached at the conclusion that the appellant cannot be permitted to challenge the same by moving another Civil Application No. 4 of 2021, in view of the withdrawal of the Civil Application No. 3 of 2021, we leave all the issues open to be agitated before the competent authority by availing the remedy available in law to the appellant to challenge the said order. We may further note that the factum of filling of the Civil Application No. 3 of 2021 and the withdrawal of the same vide order dated 23.11.2021 shall have no bearing on the case of the appellant before the competent authority, who shall have to adjudicate the issues raised before it strictly in accordance with law without being influenced by the same. 16. Having noted the above, it is more than evident that the petitioner is guilty of suppression of the material facts not only on one occasion, but twice, while filling the writ petition before the learned single Judge and the Civil Application No. 4 of 2021 before this Court. 17. In so far as the other issues related to the right of the vendors or the validity of the sale deed, we do not find any good ground to enter into those arguments made by the learned advocate appearing for the respondent Nos. 3 to 15 for the reasoning given hereinabove. The fact remains that the original writ petition has been filed before the learned single Judge on the premise that the proceedings initiated by the Mamlatdar vide the impugned un-dated notice suffered from delay being beyond reasonable period time, could not be substantiated by the learned counsel for the appellant. All other issues pertaining to the right of the vendors to participate in the proceedings before the Mamlatdar or before this Court are not required to be looked into by us. 18. For the above discussion, we do not want to burden this judgment with the decisions relied by the learned advocate for both the sides. No error could be found in the reasoning given by the learned single Judge in dismissing the writ petition on two counts. Firstly, that the petitioner has not come with the clean hands and suppressed the factual details of earlier notice and secondly, that the stand of the petitioner that the notice impugned be dropped on an analogy of another 8 Blocks, could be agitated before the competent authority by filing records and submissions in response to the notice. Firstly, that the petitioner has not come with the clean hands and suppressed the factual details of earlier notice and secondly, that the stand of the petitioner that the notice impugned be dropped on an analogy of another 8 Blocks, could be agitated before the competent authority by filing records and submissions in response to the notice. The fact that the learned single Judge has left all the issues without adjudication to be agitated before the competent authority is sufficient to record that the petitioner/appellant herein cannot be said to have suffered any prejudice on account of the dismissal of the writ petition vide impugned judgment and order dated 15.02.2021. 19. Both the appeals are, thus, found to be devoid of merits and hence dismissed. The pending Civil Applications in both the Appeals also stand disposed of, accordingly. No order as to costs. FURTHER ORDER The request made by the learned Senior Counsel appearing for the appellant to grant an interim protection to the appellant herein, at the time of delivery of the order, is hereby turned down, being devoid of merits.