Vaghela Popatbhai Chhaganbhai vs The Mamlatdar And Alt
2021 Latest Caselaw 12177 Guj

    C/SCA/16874/2019                                   ORDER DATED: 24/08/2021




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

            R/SPECIAL CIVIL APPLICATION NO. 16874 of 2019

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                       VAGHELA POPATBHAI CHHAGANBHAI
                                   Versus
                           THE MAMLATDAR AND ALT
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Appearance:
MR AN PATEL(597) for the Petitioner(s) No. 1
MR. HARDIK MEHTA, AGP for the Respondent(s) No. 1,2,3,4,6
MR TATTVAM K PATEL(5455) for the Respondent(s) No. 5
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 CORAM: HONOURABLE MR. JUSTICE A.Y. KOGJE

                              Date : 24/08/2021

                                ORAL ORDER

1. This petition under Article 226 of the Constitution of India is filed with following prayers :.

"(A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to the respondent tenancy authorities to restore the possession and occupation of the tenancy land of S.No.46, 47 of Village Dumral and S. No.215 of Village: Tundel and dwelling house in its original position to the petitioner from Respondent Nos.5 and 6 and to fix the purchase price u/s.32 G of the Tenancy Act and declare as deemed tenant as on 1­4­1997.

(B) During the pendency and final disposal of this petition, this Hon'ble Court may be pleased to direct the Respondent No.1 to 4 to take the possession of the land in question from Respondent Nos.5 and 6 and to hand over to the petitioner;"

2. Learned Advocate for the petitioner submitted that the petitioner claims to be a protected tenant and ancestors of the present petitioner was cultivating the land in question since 1950. It is submitted that the land in question was in occupation of Chhanabhai Gagabhai and in this regard, has drawn attention to Annexure­A, which is the revenue record

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Village Form No.7/12 abstract to indicate the occupation of said Chhanabhai. The petitioner before this Court claims to be the power of attorney holder of daughter - Sakarben of late Chhanabhai.

3. It is submitted that the right is claimed by the petitioner under Section­ 32 of the Tenancy Act and though the petitioner was agitating his claim to be in possession as a protected tenant, the respondents have resorted to high handed action and even while the petition being Special Civil Application No.10911 of 2016 was pending, the petitioner was forcibly evicted. The contention raised by the petitioner is that even if an order was passed against the petitioner with regard to his status as protected tenant, the private respondent as well as the Authorities ought to have resorted to the provisions more particularly under Section­73 of the Tenancy Act as well as Section­21 of the Mamlatdars' Courts Act. These are only the procedure prescribed under the Law by which the petitioner could have been dispossessed or the private respondent could have been put into possession. As no such proceedings are undertaken, action of dispossession is against the Law.

4. It is also submitted that with regard to the decision under Section­43 of the Land Revenue Code by the Mamlatdar and ALT, the proceedings are still pending before the GRT and unless such proceedings are brought to an end, the petitioner's right to continue on the land in question sustains.

5. As against this, learned Advocate for the private respondent submitted that the present petition is fourth round of litigation undertaken by the petitioner for the same subject matter and in fact the petitioner had filed earlier two petitions under the Revenue Laws for the very same prayer and also one petition under criminal jurisdiction also with the same prayer, but has not succeeded so far and hence, present petition should be treated to be an abuse of process of law and to be dismissed forthwith.

6. Learned Advocate for the private respondent submitted that the

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Authorities have consistently held that the petitioner is not a tenant and this aspect has been confirmed by this Court even by the Division Bench of this Court. Once, the petitioner is held not to be tenant, rest of the proceedings even if the petitioner initiated, would fall into insignificance. It is submitted that the petitioner cannot be treated to be tenant when the land in question are admittedly gaucher land.

7. Learned Advocate for the private respondent has also drawn attention of this Court that the issue of wrongful eviction was also considered by this Court in the earlier round of litigation, but has held against the petitioner.

8. Learned AGP has supported the arguments forwarded by the learned Advocate for the private respondent and has further submitted that the fact that the petitioner is not a protected tenant, cannot be set aside merely by producing on record Revenue Entries - Village Form No.7/12, which indicates that the petitioner was in occupation in the year 1950­1951 or thereafter. It is also submitted that subsequent thereto, there were several proceedings which confirmed that the status of the petitioner is not of a protected tenant.

9. Having considered the rival submissions of the parties and having perused the documents on record, it appears that the the prayer made before this Court was identical to the prayer made in Special Civil Application No.4737 of 2018, which came to be disposed of by order dated 26­06­2018 as not pressed. Again, another petition apparently with similar prayer was also made being Special Civil Application No.21372 of 2017, which also came to be disposed of by order dated 29­11­2017.

10. The Court has taken into consideration the contents of the petition as well as prayer clause in the aforesaid two petitions, which are reproduced in the respective orders and are identical to the present petition. The Court does not find any change in the circumstances so as to once again examine the same facts in the present petition with the

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same prayer clause.

11. In so far as merits are concerned, it is pertinent to observe that in Special Civil Application No.12865 of 2008, which came to be disposed of by order dated 22­06­2009. The said petition was preferred challenging the orders of the GRT as well as the Collector. The original proceedings being an application under Section­32(1B) of the Bombay Tenancy and Agricultural Lands Act. In the said petition, this Court has held in Para­4 and Para­5 as under:

"4. It is an accepted fact that deceased Shanabhai Gagabhai, father of the petitioner, was shown to be a protected tenant vide entry No. 542. However, in the proceedings for determining the purchase price under section 32G of the Act, after one entire round of proceedings, the Deputy Collector had found that as the of land was only leased out for the purpose cultivating fruit trees in terms of provisions of section 43A of the Act the deceased predecessor was held not to be entitled to be treated as a tenant for the purpose of proceedings under section 32G of the Act. The said order had attained finality as the Revision Application filed by the petitioner before the Tribunal had been rejected for want of prosecution as the petitioner did not remain present. Thereafter, the petitioner prayed for restoration of the Revision Application which had been rejected the Restoration Application also came to be and rejected as withdrawn. Therefore, even if one may accept that technically there was no order of Tribunal on merits, as rightly held by the Tribunal in the present proceedings, the order made by the Deputy Collector in proceedings under section 32G of the Act, which was rendered on merits had become final against the petitioner.

5. The Tribunal has further found as a matter of fact that application dated 17.1.1996 under section 32(1B) of the Act had been made almost after 22/23 years and was thus barred by limitation considering the provisions of the said section read with Rule 15A of the Bombay Tenancy And Agricultural Lands Rules, 1956. The said rule provides that application can be made by a tenant specified in sub­section (1B) of section 32 of the Act within a period of one year from coming Agricultural into Lands force of (Gujarat the Bombay Amendment) Tenancy Act, and 1972. Admittedly the application having been preferred only on 17.1.1996, even if the same is considered from 1973, the petition is more than 22 years beyond the period of limitation prescribed under the Act and the relevant rule. Finding of the Tribunal on this count therefore does not deserve to be interfered with."

12. The Categoric findings recorded in Para­8 indicates that the Authorities

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which have concurrently found on facts that the petitioner was not entitled to make claim under Section­32(1B), the reasons were found to be sound and no legal infirmity was found in the orders of the Tribunal as well as two subordinate Authorities. This would indicate that claim of the petitioner under Section­32(1B) was not sustained. Challenge to the orders passed by the Single Judge in Special Civil Application No.12865 of 2008 was confirmed by order dated 09­04­2010 in Letters Patent Appeal No.2215 of 2009. The Division Bench has held in Para­7 as under:

"7. Learned counsel for the petitioner however, submitted that the petitioner is still in possession of the land. We do not see how the petitioner can still be in possession of the land and can still seek benefit of section 32(1B) of the Act. The said Section applies where a tenant who was in possession of the land on the appointed day has been dispossessed of such land by the landlord illegally. When benefit of Section 32(1B) is pressed in service, it pre­supposes that the petitioner would have lost possession."

13. It appears that this order has attained finality and this appears to be the firm attempt on the part of the petitioner to claim and assert his rights. Another attempt was made by filing Tenancy Case No.2 of 2009 and 24 of 2010 before the Mamlatdar and ALT, which also came to be rejected by a separate orders against which it is reported that Revision Applications are pending before the GRT. In that view of the matter, the Court is not inclined to make any observations so as to cause any impediment with the ongoing proceedings with the GRT.

14. However, it would be useful to refer to the detailed discussion of this Court vide Oral Judgment dated 26­12­2016 passed in Special Civil Application No.10911 of 2016, wherein all the arguments more or less advanced before this Court have been taken into consideration and the petition came to be rejected. This order was the subject matter of challenge in Letters Patent Appeal No.1504 of 2016, which confirmed the order of Single Judge. It would be appropriate to reproduce

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ultimate findings in Para­12, which is as under:

"12. Learned counsel for the appellant is not able to show anything contrary to the aforesaid, whereas having failed before the Mamlatdar and ALT, Deputy Collector and thereafter observed before by this the Court, learned the Single issue, Judge as rightly has attained finality. This Court has reason to believe that the facts which are suppressed by the appellant were not only material but vital and the appellant was well aware about the same, which were suppressed with the purpose to misdirect and misguide this Court. We, therefore, find that, there is no error committed by the learned Single Judge, which requires interference of this Court in the present appeal and therefore, the appeal being merit less, deserves to be dismissed."

15. The Court finds that in all the aforesaid decision, it is consistent that the petitioner's status as protected tenant was never confirmed by any of the Authorities nor accepted by the private respondent. Even the challenge to the order in Letters Patent Appeal aforementioned, the same came to be withdrawn before the Apex Court which is recorded in the order dated 09­08­2019 in Special Leave to Appeal No.14293 of 2019.

16. With the aforesaid chronology, the Court is of the view that no case is made out for any interference. Hence, this petition deserves to and hereby dismissed.

17. At this stage, learned Advocate for the petitioner has submitted that the petitioner would like to approach the appropriate Authorities by initiating appropriate proceedings with regards to the possession and therefore, the observations made in this order may not come in way, if any such application is made.

(A.Y. KOGJE, J) PARESH SOMPURA