Gujarat High Court
Nathubhai Narotambhai Patel vs Ganpat Hiraman Misale on 20 January, 2021
Bench: Gita Gopi
C/LPA/1484/2016 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1484 of 2016
In
R/SPECIAL CIVIL APPLICATION NO. 4210 of 1996
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2017
In
R/LETTERS PATENT APPEAL NO. 1484 of 2016
FOR APPROVAL AND SIGNATURE:
HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
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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 ?
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NATHUBHAI NAROTAMBHAI PATEL
Versus
GANPAT HIRAMAN MISALE & 269 other(s)
==================================================================
Appearance:
MR NIRAV C SANGHAVI(5950) for the Appellant(s) No. 1
MR AMIT V THAKKAR(3073) for the Respondent(s) No. 153,205,40
MR UTKARSH SHARMA for the Respondent-State.
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CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
and
HONOURABLE MS. JUSTICE GITA GOPI
Date : 20/01/2021
Page 1 of 9
Downloaded on : Wed Jan 12 03:39:48 IST 2022
C/LPA/1484/2016 JUDGMENT
ORAL JUDGMENT
(PER : HONOURABLE DR. JUSTICE VINEET KOTHARI)
1. This intra court appeal is directed against the order of learned
Single Judge dated 28.7.2016 dismissing the writ petition filed by the
appellant - petitioner Nathubhai Narottambhai Patel along with the
petitioner No.2 Viraj Rustamji Patel with the following observations:
"5. Having regard to the submissions, and the
record of the case, it appears that out of 265
respondents, about 70 respondents were not
served, and therefore, the Court vide the order
dated 07.10.2010, had dismissed the petition
qua the said respondents. It is further required
to be noted that none of the petitioners has
challenged the final order passed by the Deputy
order Collector on 29.12.1992, restoring the
order dated 29.12.1987, granting NA
permission in respect of the land in question.
None of the petitioners has challenged the sale
deeds executed by the petitioner No.2 through
Power of Attorney holder in favour of the 383
persons by filing any civil suit or other
substantive proceedings. The order of
Mamlatdar passed on 24.02.1992 under Section
70 (b) of the Tenancy Act declaring the petitioner
No.1 as the tenant has been set aside by the
Deputy Collector vide the order dated 30.04.1992
in the appeal preferred by the respondents. The
said order has also been confirmed by the
Tribunal in revision preferred by the petitioners.
As a result thereof, the respondents have
C/LPA/1484/2016 JUDGMENT
continued to be the owners of the land in
question by virtue of the sale deeds executed in
their favour by the petitioner No.2 in the year
1985. The said land has also been permitted to
be used for the non-agricultural purpose by virtue
of the order passed by the Deputy Collector on
29.12.1992 restoring the order dated 29.12.1987,
which in turn had restored the order dated
15.10.1982 granting NA permission by the
Taluka Development Officer.
6. Under the circumstances, the land in
question being permitted to be used for non-
agricultural purpose since 1982, the of Tenancy
Act could not be made applicable to the said land.
It is also pertinent to note that the petitioner No.1
had filed the application under Section 70 (b) of
the Tenancy Act, in January, 1992, i.e. during the
period when the NA permission had remained
cancelled between the period February 1991 to
December, 1992 as a result of the order passed
by the Deputy Collector. The said application of
the petitioner No.1 was granted by the Mamlatdar
surprisingly within one month from the date of
filing of the application, and that too on the
admission made by the petitioner No.2 to the
effect that the petitioner No.1 was his tenant.
Under these circumstances, it clearly emerges
that the said proceedings under Section 70(b) of
the Tenancy Act were filed by the petitioner No.1
in collusion with the petitioner No.2, after the
C/LPA/1484/2016 JUDGMENT
petitioner No.2 had pocketed the money from 363
persons, in whose favour he had executed the
registered sale deeds, and with the ulterior motive
to dupe their rights in respect of the land in
question. The revision petition before the
Tribunal was also filed by both the petitioners
jointly, and the present petition also was filed by
both the petitioners jointly, which conduct of the
petitioners clearly establishes their collusion
against the respondents.
7. Having regard to the afore stated facts
and circumstances of the case, the Court does not
find any illegality or infirmity in the impugned
order passed by the Gujarat Revenue Tribunal.
The petition being devoid of merits, deserves to
be dismissed and is accordingly dismissed. At
this juncture, Mr. Sanghavi, learned counsel for
the petitioners requests to continue the interim
relief for a period of eight weeks. The said
request is rejected for the reasons stated above.
Interim relief, if any, stands vacated forthwith.
Rule is discharged."
2. Mr.Shalin Mehta, learned senior counsel with Mr.Nirav
C.Sanghavi, learned counsel for the appellant, urged before us that the
petitioner No.1 Nathubhai Narotambhai Patel was tenant of the land
holder petitioner No.2 Viraj Rustamji Patel and his rights as a tenant was
declared by the learned Mamlatdar under Section 70 (b) of the Gujarat
Tenancy and Agricultural Act, 1948 (for short "the Act") under which
C/LPA/1484/2016 JUDGMENT
provision, the learned Mamlatdar has power to decide whether a person is
or was a tenant or a protected tenant or a permanent tenant. He submitted
that petitioner No.1 also got a Purchase Certificate issued by the
competent authority on 13.7.1992 which by virtue of Section 32 M of the
said Act was the conclusive proof of his rights over the land in question
namely, Block No.124 admeasuring 4 Hector and 66 Ares and 00
Gunthas. He further urged that the Non-Agricultural (NA) permission
earlier given to the petitioner No.2 was cancelled on 16.9.1987 by the
Taluka Development Officer which, however, came to be restored by the
District Collector on 22.12.1992.
2.1. Mr. Shalin Mehta, learned senior counsel further urged that
petitioner No.2 appears to have sold the said land in question, to as many
as 383 various purchasers and some of them represented by Mr.Amit
Thakkar, learned opposite counsel. He submitted that the learned Single
Judge has erred in holding that the order dated 24.2.1992 passed by
learned Mamlatdar in Tenancy Case No.1 of 1992 in favour of the present
two petitioners was based on relevant evidence including Affidavit of the
four neighbours. That, petitioner No.1 was the in-cultivatory possession
of said land in question and merely because the said order was passed
within a period of one month from the date of his Application dated
24.1.1992, it could not have raised doubt in the mind of the learned
Single Judge as well as the two Authorities below namely, the Deputy
Collector vide order dated 22.2.1993 and Gujarat Revenue Tribunal dated
12.2.1996. He, therefore, submitted that petitioner No.1 is entitled to be
held to be the Tenant/ land owner in the light of the aforesaid facts and
the orders passed by the two authorities below namely, Dy. Collector
dated 22.2.1993 and Gujarat Revenue Tribunal dated 12.2.1996 as well as
the order of learned Single Judge dated 28.7.2016 deserve to be set aside.
3. On the other hand, learned counsel for some of the purchasers,
C/LPA/1484/2016 JUDGMENT
Mr.Amit Thakkar, vehemently opposed these submissions and urged that
the Order dated 24.2.1992 was passed by the Mamlatdar in a very hasty
manner on the application of present petitioner No.1 and it smacks of
malafides and the very fact that the Non-Agricultural character of the
land which was cancelled by Taluka Development Officer was restored
by the learned District Collector proves that the sale of land in question in
favour of the various purchasers was absolutely legal and valid and the
Registered Sale Deeds in favour of such purchasers could not have been
set aside or ignored by the Mamlatdar while passing the order dated
24.2.1992. He also submitted that despite the fact of such sales made by
petitioner No.2 Mr.Viraj Rustamji Patel in favour of 383 purchasers
having come on the record before learned Mamlatdar, he deliberately did
not choose to issue any Notice to these purchasers, whose rights were
apparently sought to be adversely affected by the proceedings undertaken
by the said Mamlatdar under Section 70(b) of the Act, at the instance of
the said two petitioners. He also submitted that petitioner No.1 Mr.
Nathubhai Nartotambhai Patel and petitioner No.2 Viraj Rustamji Patel
have apparently colluded with each other and could succeed before
learned Mamlatdar in their Tenancy Case No.1/1992 vide their
application filed on 24.1.1992 and the learned Mamlatdar obliged them
and passed the impugned order in their favour on 24.2.1992 which has
been rightly quashed and set aside by the Courts/Tribunals/Authorities
below consistently and the same does not call for any interference. He
also submitted that the Registered Sale Deeds in favour of such various
purchasers can only be challenged in properly instituted civil suits in the
Civil Courts and the Revenue Authorities have no jurisdiction to cancel
the same.
4. Having heard the learned counsel at length and upon perusal of the
record, we are satisfied with the order of learned Single Judge does not
call for any interference and the present Letters Patent Appeal is without
C/LPA/1484/2016 JUDGMENT
any merit. We find considerable force in the submissions of learned
counsel for the respondent Mr.Amit Thakkar that the Registered Sale
Deeds in favour of 383 people executed by the Power of Attorney of
mother of petitioner No.2 Mr. Viraj Rustamji Patel and illustrative copy
of such is placed on record, could not be set aside, ignored or even
adversely affected by the proceedings chosen by these two petitioners, the
writ appellant before us, under Section 70(b) of the Act.
4.1. Section 70(b) of the Act becomes operative only if some
proceedings are initiated before him under Section 71 and which
proceedings are to be dealt with in accordance with the procedure laid
down in Section 72 of the Act. Section 70(b) of the Act is merely an
enabling power given to the Mamlatdar to decide whether a person is or
was a tenant or a protected tenant or a permanent tenant. Such a dispute
if raised before him in accordance with law can be decided by him under
Section 70(b) of the Act. Neither the question of title nor the question of
validity of sale deeds etc. can be decided by such Mamlatdar.
5. The very initiation of these proceedings by petitioner Nos.1 and 2
apparently being fully aware of the sale of land in question by Registered
Sale Deeds in favour of as many as 383 different persons, smacks a foul
play. The said proceedings viewed in the light of the background that the
same were moved at a stage when an order was obtained by them from
Taluka Development Officer cancelling the Non-Agricultural permission
on 16.9.1987 and just before that, order came to be cancelled by the
District Collector on 22.12.1992, which order of learned District
Collector also became final. The impugned order was passed on
24.2.1992 by the said Mamlatdar.
6. Therefore, these proceedings before Mamlatdar initiated on
premise that the land in question bore the Agricultural character during
C/LPA/1484/2016 JUDGMENT
the pendency of the proceedings before the learned District Collector for
restoration of the Non-Agricultural permission were per se under the
cloud of proceedings pending before a higher authority. The quick
manner in which the favourable order on the basis of self-serving
evidence led by these two persons who apparently joined hands for the
reasons best known to them is highly doubtful. There was no reason for
any tearing hurry in which the said Mamlatdar obliged these two
petitioners with the said order dated 24.2.1992 which, in our opinion,
rightly came to be reversed by Dy. Collector on 22.2.1993 and later on
affirmed by the Gujarat Revenue Tribunal on 12.2.1996.
7. The contention raised by learned counsel for the appellant on the
anvil of Section 32 M of the Act on the basis of Purchase Certificate is
also equally untenable, so also the reliance placed by him on the decision
of the Hon'ble Supreme Court in the case of The State of Kerala vs.
Mohammed Basheer MANU/SC/0057/2019 because that case arose in
the context where the tenancy rights of the tenant who had the purchase
certificate were so challenged and it was held that such Purchase
Certificate was conclusive of his right in terms of Section 32M of the Act.
There were no facts like the one involved in the present case namely, the
sale of land in question in favour of the third party and, therefore the
reliance placed on the decision of the Hon'ble Supreme Court is also
misplaced and we do not find any applicability of Section 32 M to the
facts of the present case. The said contention is liable to be rejected and
the same is rejected.
8. The learned Single Judge was, therefore, absolutely right in
dismissing the writ petition being without any merit and we respectfully
agree with the views expressed by learned Single Judge and affirm the
same without any doubt. Letters Patent Appeal is found to be devoid of
merit and is accordingly dismissed. No order as to costs.
C/LPA/1484/2016 JUDGMENT
9. Consequently, the Civil Application (For Stay) also stands
accordingly dismissed. No costs.
(DR. VINEET KOTHARI,J)
(GITA GOPI,J)
NAIR SMITA V.
