Amthabhai Dalabhai Harijan Thro ... vs Somabhai Vaghabhai Gohel Since ...
2021 Latest Caselaw 2601 Guj

      C/LPA/2036/2007                                  CAV JUDGMENT DT.: 18.02.2021
    AMTHABHAI DALABHAI HARIJAN THRO MANSUKH A HARIJAN DECEASE Vs. VAGHABHAI GOHEL



          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO. 2036 of 2007

                                 In
            R/SPECIAL CIVIL APPLICATION NO. 4663 of 1995

                                With
             CIVIL APPLICATION (FOR STAY) NO. 1 of 2007
                                 In
             R/LETTERS PATENT APPEAL NO. 2036 of 2007

FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE VINEET KOTHARI

and
HONOURABLE MS. JUSTICE GITA GOPI

==============================================================

1 Whether Reporters of Local Papers may be allowed to see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of
      the judgment ?

4     Whether this case involves a substantial question of

law as to the interpretation of the Constitution of India or any order made thereunder ?

========================================================== AMTHABHAI DALABHAI HARIJAN THRO MANSUKH A HARIJAN DECEASE Versus SOMABHAI VAGHABHAI GOHEL SINCE DECD. THRO HEIR & 11 other(s) ============================================================== Appearance:

HCLS COMMITTEE(4998) for the Appellant(s) No. 1.1 MR GIRISH M DAS(2323) for the Appellant(s) No. 1,1.2,1.3,1.4 MS BHAVIKA H KOTECHA(2942) for the Appellant(s) No. 1.1,1.1.1,1.1.2,1.1.3,1.1.4 MR MEET THAKKAR AGP(1) for the Respondent(s) No. 11,12 MR AJAYKUMAR CHOKSI(1853) for the Respondent(s) No.

C/LPA/2036/2007 CAV JUDGMENT DT.: 18.02.2021 AMTHABHAI DALABHAI HARIJAN THRO MANSUKH A HARIJAN DECEASE Vs. VAGHABHAI GOHEL

1,2,3,4,5,6,7,8 MR VAIBHAV A VYAS(2896) for the Respondent(s) No. 1,2,3,4,5,6,7,8 RULE SERVED BY DS(65) for the Respondent(s) No. 10,9 ==============================================================

CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI and HONOURABLE MS. JUSTICE GITA GOPI

Date : 18/02/2021

CAV JUDGMENT

(PER : HONOURABLE MS. JUSTICE GITA GOPI)

1. This Letters Patent Appeal is directed against the judgment in

Special Civil Application No.4663 of 1995. A common judgment

and order was passed by the learned Single Judge on 25.09.2007 in

Special Civil Application No.4651 of 1995 with Special Civil

Application No.4663 of 1995, whereby the learned Single Judge

quashed and set aside the judgment and order, dated 29.04.1995

passed by the State Government [Deputy Secretary to the

Government of Gujarat (Appeals), Revenue Department].

2. The Deputy Secretary (Appeals), Revenue Department,

Gujarat Government, Ahmedabad, through its Common Order

passed in Revision Application Nos.23/1993, 24/1992 and 1/1992,

confirmed the Eviction Order and cancelled the N.A. Permission

granted for residential purpose, considering the tenants as

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"unauthorized holders" under the provisions of the Bombay

Inferior Village Watans Abolition Act, 1958 (hereinafter referred

to as, 'the Watans Act' for short). The learned Single Judge while

over-turning the order affirmed - Mohanbhai Somabhai and

Becharbhai Somabhai, to be the 'Deemed Purchasers' and considered

the sale of land in their favour to be in compliance of the provisions

of the Bombay Tenancy And Agricultural Lands Act, 1948

(hereinafter referred to as the 'Tenancy Act' for short) and

subsequently considered the cancellation of N.A. Permission as bad

and illegal.

3. The appellants herein claimed themselves to be the

'Watandars' of the land bearing Survey Nos.1581/A and 1581/B,

situated at Anand. The appellants have challenged the status of

Mohanbhai Somabhai and Becharbhai Somabhai of being "tenants"

of the disputed land and have thereby, raised the grounds that the

learned Single Judge has failed to appreciate that the tenants have

failed to discharge the onus that they are the lawful tenants so to

avail the benefit under Section 8 of the Watans Act. Further, unless

the status of the landlord is not decided under Section 3 of the

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Watans Act, the tenants could not claim benefits under the

provisions of Section 32 of the Tenancy Act and thereby the alleged

"deemed purchaser" could not apply for N.A. Permission as being

the tenant.

4. Ms. Bhavika H. Kotecha, learned counsel for the appellants,

contended that the order dated 26.11.1990 passed by the District

Collector was cryptic, ex facie bad and illegal and has been passed

without appreciating the evidence on record. It was submitted that

the order dated 03.12.2991 passed by the respondent remanding the

matter for being decided afresh was not appreciated by the learned

Single Judge in its proper perspective and said Mohanbhai Somabhai

and Becharbhai Somabhai have been wrongly held as 'Deemed

Purchasers'. The District Collector, by his order dated 24.08.1992,

has held them as unauthorized occupants and therefore, no right to

claim benefits under the Tenancy Act would survive. She contended

that the appellants, as 'Watandars', are the rightful owners of the land

in question and hence, the tenants have no right to apply for N.A.

Permission.

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5. Learned counsel Mr. Ajaykumar Choksi for respondent nos.1

to 8, petitioners before the learned Single Judge, contended that they

are the Successors-in-Title of one Somabhai Vaghabhai Gohel, who

and his predecessor - Motibhai Vaghabhai, were the tenants of the

disputed lands for more than 80 years. They have inherited the right

through the predecessors by way of tenancy, being in possession of

the disputed lands, on Tillers' day i.e. 13.12.1960 and they had

become entitled to purchase the disputed lands. Accordingly, they

purchased the same under the provisions of Section 32 of the

Tenancy Act. The Land Revenue and Betterment Charges were paid

to the Anand Municipality. Mr. Choksi, learned counsel, further

submitted that the matter has already attained finality by a reasoned

order, delivered in Letters Patent Appeal No.2035 of 2007 and

Letters Patent Appeal No.1703 of 2007 preferred by 'Watandars' and

the State respectively.

6. Learned Assistant Government Pleader, Mr. Meet Thakkar,

submitted that Letters Patent Appeal Nos.2035 of 2007 and No.1703

of 2007 were concentrated towards the Summary Eviction Order.

Mr. Thakkar submitted that the landlord had approached the Hon'ble

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Supreme Court by preferring Special Leave to Appeal (Civil) C.C.

No.8573/2009 against the order passed in Letters Patent Appeal

No.2035 of 2007 in Special Civil Application No.4651/1995,

which came to be dismissed as withdrawn.

7. The petitioners before the learned Single Judge, produced the

Village Form Extract - 7/12 to demonstrate that their ancestor -

Motibhai Vagha was cultivating the disputed land as tenant since

1930 and after the death of said Moti Vagha, the Predecessor-in-

Title, Somabhai Vaghabhai, continued cultivation over the land and

thereafter, on his demise, his sons - Mohanbhai Somabhai and

Becharbhai Somabhai came in possession of the disputed lands and

they continued with the cultivation. By order dated 24.08.1981, the

Mamlatdar & ALT, Anand in Tenancy Case declared both the

brothers as "tenants" of the disputed land and were declared

competent to purchase the said land under Section 32 of the Tenancy

Act. The Purchase Price of the land, which was fixed at Rs.1570.80,

was paid and the Sale Certificate under Section 32M of the Tenancy

Act was also issued. The owners of the land did not dispute the fact

of Somabhai Vaghabhai being "tenant" of the said land and

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therefore, on the death of Somabhai Vaghabhai, the Mamlatdar &

ALT held the right to inherit tenancy in favour of Mohanbhai

Somabhai and Becharbhai Somabhai. The Mamlatdar & ALT

observed that the disputed land, situated within the Municipal limits

of Anand, were in possession of the tenant till the Tillers' Day, i.e.

13.12.1960, under the Tenancy Act and therefore, they were entitled

to purchase the said land by virtue of Section 32-I of the Tenancy

Act.

8. Aggrieved by the Sale Certificate issued under Section 32M of

the Tenancy Act in favour of Mohanbhai Somabhai and Becharbhai

Somabhai, the landlord (Watandar) preferred Tenancy Appeal

No.3898/1982 before the Deputy Collector. At the same time,

Becharbhai Somabhai, also preferred Appeal No.3882/1982

challenging the declaration of his brother - Mohanbhai Somabhai as

"tenant". Both these Appeals were partly allowed vide order dated

22.03.1983 wherein, the Deputy Collector observed that 'Watandars'

had agreed that Somabhai Vaghabhai was tenant of the disputed land

but, at the same time, asserted that the lands were cultivated by the

'Watandars' and not by the tenant and thus by setting aside the order,

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remanded the matter back on the ground that all the concerned were

not given an opportunity of hearing. The said order of the Deputy

Collector was challenged before the Gujarat Revenue Tribunal;

however, the Gujarat Revenue Tribunal dismissed the matter vide

order dated 16.01.1987 for want of prosecution and hence, the said

proceedings had attained finality.

9. The facts, as reflect from the record, show that during the

proceedings under the Watans Act, the Mamlatdar, Anand, by his

order dated 14.06.1968, held the land to be 'Watans' land under

Section 4 of the Watans Act and the said lands were resumed by the

State Government and hence, the possession of the tenants was

found to be unauthorized. Resultantly, the disputed land and such

other lands were put for sale by Public Auction. Being aggrieved by

the order of public auction, appeal being Appeal No.252/1969 was

preferred before the State Government and by order dated

27.05.1971, the Public Advertisement for sale through Public

Auction was set aside. The matter was remanded for decision in

respect of the status of Somabhai Vaghabhai Gohel under the

Watans Act.

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9.1 The District Collector, Kheda, by his order dated 26.11.1990,

declared Mohanbhai Somabhai and Becharbhai Somabhai to be

'tenants' of the disputed land under the Watans Act. Aggrieved by

the said order, the 'Watandars' preferred an Appeal before the State

Government. The order of District Collector, Kheda, was set aside

on 03.12.1991 and the matter was remanded for hearing and decision

afresh on the issue as to whether Somabhai Vaghabhai was a lawful

tenant of the disputed land or not ?

9.2 Pursuant to the order of remand, the District Collector, Kheda

passed the order dated 24.08.1992 by which it was held that said

Somabhai Vaghabhai was in unauthorized occupation of the

disputed land, which land, thereafter, got resumed by the State

Government and the occupants were ordered to be summarily

evicted. The said order of Summary Eviction was confirmed by the

State Government on 29.04.1995 in Revision Application

Nos.24/1992 and 23/1993; and in Revision Application No.1/1992,

the N.A. Permission granted in respect of the disputed land by order

dated 29.10.1991 by the District Collector, Kheda pursuant to the

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order dated 26.11.1990, came to be cancelled by order dated

06.10.1992. The order of cancellation of N.A. Permission was

challenged by Revision Application No.1/1992; however, the

Deputy Secretary (Appeals), Revenue Department, Government of

Gujarat confirmed the cancellation order and against that, present

private respondents were before the learned Single Judge.

9.3. The learned Single Judge while allowing Special Civil

Application No.4651 of 1995 and Special Civil Application No.4663

of 1995, observed in internal page 13 to 15 of the judgment, as

below:

"The copies of the Panipatrak and 7/12 forms produced on the record irrefutably prove that the aforesaid Moti Vagha, the predecessor of the petitioners was cultivating the disputed lands since 1930. After his death, the aforesaid Somabhai Vaghabhai continued to cultivate the disputed lands till he passed away in the year 1959. In the order dated 24th August, 1981 made under Section 32G of the Tenancy Act, the Mamlatdar and ALT did record that the Watandar did not dispute that the said Somabhai Vaghabhai was the tenant in the

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disputed lands and that he was cultivating the lands on crop-share basis. It has also been recorded that the Watandar did not lay claim for trees, Well or any building or construction. In Tenancy Appeal No.3898/1982 before the Deputy Collector also, the Watandar did agree that the aforesaid Somabhai Vaghabhai was the tenant in the disputed lands. The said findings have become final. In my view, therefore, it is not now open for the Watandar to allege that the aforesaid Somabhai Vaghabhai was not a lawful tenant in the disputed lands or that he was not in possession of the disputed lands on the appointed date.

Section 4 of the Act of 1958 brings about abolition of Inferior Village Watans together with the incidence thereof. Section 5 of the said Act provides, inter alia, for regrant of the Watan lands resumed under Section 4 of the Act of 1958 to the Watandars. Section 8 of the Act of 1958, however, provides for application of the tenancy laws in respect of the Watan lands lawfully leased and such lease subsisting on the appointed date. In the present case, as observed hereinabove, the disputed lands were cultivated by the predecessors-in-title of the petitioners as tenant; they were cultivating the

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said lands for decades before the appointed date and also on the appointed date. In view of Section 8 of the Act of 1958 the right of the tenants to purchase the lands in their possession conferred by the Tenancy Act would not be abrogated by the provisions of the Act of 1958. In my view, the aforesaid Mohanbhai Somabhai and Becharbhai Somabhai were rightly held to be the deemed purchasers as envisaged by the Tenancy Act and the disputed lands were rightly sold to the said Mohanbhai Somabhai and Becharbhai Somabhai in compliance with the provisions of the Tenancy Act.

In above view of the matter, the cancellation of the permission for N.A. use by impugned order dated 6th October, 1992 is held to be bad and illegal and inconsequential.

For the aforesaid reasons, both these petitions are allowed. The impugned judgment and order dated 29th April, 1995 passed by the State Government (Deputy Secretary to the Government of Gujarat (Appeals), Revenue Department) is quashed and set- aside. Rule nisi issued in each petition is made absolute. The parties will bear their own cost."

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10. The appellants projected to claim their rights as 'Watandar'

under Sections 3 and 4 of the Watans Act with effect on and from

the "appointed date" considering all the Inferior Village Watans Act,

having been abolished, all incidents appertaining to the said Watans

been extinguished, the land resumes to the Government, which

would in-turn be re-granted to the 'Watandars' by payment of

occupancy price equal to the amount of the full assessment of such

land within the prescribed period and in the prescribed manner and

the 'Watandars' shall be deemed to be the "occupant" within the

meaning of the 'Code' (Code means in relation to the pre-

reorganization State of Bombay, excluding the transferred territories,

the Bombay Land Revenue Code, 1879 and in relation to the

Hyderabad area of the State of Bombay, the Hyderabad Land

Revenue Act), in respect of such land. However, in view of the facts,

the said contention cannot be entertained since Section 8 of the

Watans Act shall have predominance over Section 4 of the said Act,

which prescribes that if any Watans Land has been lawfully leased

and such lease is subsisting on the "appointed date", the provisions

of the Tenancy Law would apply to the said lease and the rights and

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liabilities of the holder of such land and his tenant/s shall be

governed by the provisions of the Tenancy Act. Thus, in view of

Section 8 of the Watans Act, the rights of the tenants to purchase the

land in their possession, conferred by the Tenancy Act, would not be

abrogated by the provisions of Watans Act.

11. In Letters Patent Appeal No.2035 of 2007 in the case of

Amthabhai Dalabhai Harijan Vs. Somabhai Vaghabhai Gohel, order

by coordinate Bench dated 23.07.2008, a decision of the Hon'ble

Supreme Court in case of Pandurang Dnyanoba Lad Vs. Dada

Rama Methe And Ors., reported in AIR 1976 SC 1910, has been

referred. In the said case, the Hon'ble Supreme Court has held as

under:

"None of the provisions of the Bombay Tenancy Act, 1948, particularly the provisions contained in Section 32 of the Act under which tenants became entitled to purchase the lands held by them in that capacity on the tillers' day, is in any way inconsistent with any of the express provisions of the Bombay Merged Territories Miscellaneous Alienations Abolition Act. Section 32 must therefore, govern the rights

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of the ex-Inamdar and his tenants notwithstanding the abolition of the Inams brought about by the Alienations Abolition Act. Since the respondents tenants did not ceases to be tenants of the appellant Inamdar on the introduction of the Alienations Abolition Act, they are entitled to purchase the land under Section 32. Consequently it was competent to the Agricultural Lands Tribunal to commence the price fixation proceedings under Section 32- G of the Tenancy Act."

11.1 In case of Ranchhod Fakir Halpati V. Govanbhai

Bhikhabhai & Ors., reported in 1968 GLR 473, it was held that the

Legislature in enacting Bombay Service Inam (Useful to

Community) Amendment Act, 1953, could not have intended to take

away the right to be deemed tenant accrued to a person, when the

entire object of the Act was to ameliorate the lot of the tiller of the

land and to make him the owner of the land tilled by him. Thereby, it

was held that the provisions contained in that Act did not abrogate

the right of the tenant to purchase the land cultivated by him under

the Tenancy Act. Similarly, in this case, due to the Watants Act, the

tenant's right does not get abrogated.

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12. Learned counsel Mr. Choksi submitted that being occupant of

agricultural land bearing 1581/A and 1581/B at the sim of Village

Anand, on application by Somabhai Vaghabhai Gohel and

Becharbhai Somabhai Gohel, the Collector, Kaira by his order dated

29.10.1991 being No. L.N.D./N.A./S.R. 42/91-92, had passed an

order granting N.A. Permission for residential purpose under Section

65 of the Bombay Land Revenue Code. He submits that the land

bearing Survey No.1581/A-B, admeasuring Hectare 0-65.76 sq. mtrs

was in Final Plot No.70, admeasuring 6671 sq. mtrs. of T.P. Scheme

No.4. Mr. Choksi contended that since by the earlier round of

litigation, the issue has come to be settled, and, being protected

tenant as deemed purchaser, the case has been considered under

Section 32G of the Tenancy Act for the Sale Certificate, under

application to the Collector, the land was converted into Old Tenure

and therefore, the State Government [Deputy Secretary to the

Government of Gujarat (Appeals), Revenue Department] was not

correct in confirming the cancellation of N.A Permission, which has

been rightly held to be bad and illegal by the learned Single Judge.

As per Mr. Choksi, after the N.A. Permission came to be granted, the

houses were constructed in the land in dispute and the members of

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the society had started occupying the houses and after the lapse of

many years, the authorities had wrongly cancelled the N.A.

Permission. On perusal of the record, it appears that T.P. Scheme

was finalized and out of abundant caution, N.A. Permission was also

prayed from the Collector. There is no substantive defence raised by

the present appellants against the N.A. Permission granted by the

Collector, Kheda. When permission was granted under the Gujarat

Town Planning and Urban Development Act, 1976 and construction

was permitted in Final Plot No.70 of T.P. Scheme No.4, the present

appeal filed against the N.A. Permission bears no significance.

13. The rights of tenants to purchase the land in possession has got

crystallized. The challenge by the appellants and the State to the

Eviction Order have failed by orders passed in Letters Patent Appeal

No.2035 of 2007, Letters Patent Appeal No.8573 of 2009 and also

before the Apex Court in Special Leave to Appeal (Civil) C.C.

No.8573/2009 filed against Letters Patent Appeal No.2035 of 2007

in Special Civil Application No.4651/1995, which came to be

dismissed as withdrawn.

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14. In view of the above observations and discussions, we are of

the considered opinion that the reasonings given by the learned

Single Judge in the judgment and order impugned before us dated

25.09.2007 passed in Special Civil Application No.4663 of 1995,

which was passed along with Special Civil Application No.4651 of

1995, is just and proper and does not require any interference.

15. Accordingly, the present Letters Patent Appeal is dismissed.

No order as to costs. Consequently, the connected Civil Application

also stands disposed of.

(DR. VINEET KOTHARI, J.)

(GITA GOPI, J.) Pankaj