Amrutsinh Naththusinh Padhiyar vs Narsing Manganlal Padhiyar
2021 Latest Caselaw 934 Guj

              C/LPA/668/2016                            JUDGMENT




                IN THEHIGHCOURTOF GUJARATAT AHMEDABAD

                   R/LETTERSPATENTAPPEALNO. 668 of 2016
                                    In
                  R/SPECIALCIVILAPPLICATIONNO. 3727of 2012


FORAPPROVALANDSIGNATURE:

HONOURABLEDR. JUSTICE VINEET KOTHARI

and

HONOURABLEMS. JUSTICEGITA 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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                      AMRUTSINHNATHTHUSINHPADHIYAR
                                 Versus
                    NARSINGMANGANLALPADHIYAR& 1 other(s)
==============================================================================
Appearance:
MRTRILOKJ PATEL(658)for the Appellant(s)No. 1
MS SONALD VYAS(999)for the Respondent(s)No. 1
UNSERVEDREFUSED(R)(70)for the Respondent(s)No. 2
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 CORAM: HONOURABLE DR. JUSTICE VINEET KOTHARI
        and
        HONOURABLE MS. JUSTICE GITA GOPI

                               Date: 20/01/2021
                               ORALJUDGMENT

C/LPA/668/2016 JUDGMENT

(PER: HONOURABLE DR. JUSTICE VINEET KOTHARI)

1. This appeal has been filed against the order dated 28.06.2016 passed by the learned Single Judge allowing the Special Civil Application No.3727 of 2012 and setting aside the impugned order dated 18.11.2011 passed by the learned Gujarat Revenue Tribunal and the order dated 30.09.1993 passed by the Collector.

2. The learned Gujarat Revenue Tribunal, by the impugned order dated 18.11.2011, had remanded the case back to the learned Collector to consider the case again about the tenancy of the writ petitioner - Narsing Maganlal Padhiyar. Aggrieved by the same, the appellant before us, i.e. Amrutsinh Nathhusinh Padhiyar, who seems to have purchased the land in question from the respondent No.1 before the learned Single Judge, Firozsha Ratansha Bulsarana, through the Power of Attorney - Dr. Roshan Ratansha Bulsara, was also directed to be heard by the learned Collector under the said remand order dated 18.11.2011. The learned Single Judge, by the impugned order, however held that there was no occasion for the learned Gujarat Revenue Tribunal to make a second remand since the matter already stood once remanded to the learned Collector vide order dated 18.03.2008 and therefore, a repeat remand was not called for.

3. The learned counsel appearing for the appellant-purchaser Mr. Trilok Patel submits that the purchaser of the land in question, i.e. the present appellant, was never heard by any of the revenue authorities below and therefore, the Gujarat Revenue Tribunal was justified in remanding the case back to the Mamlatdar for hearing the case again on merits, after giving an opportunity of hearing to the present appellant-

C/LPA/668/2016 JUDGMENT

purchaser of the land in question while determining the tenancy rights of respondent - Narsing Maganlal Padhiyar, qua the petitioner.

4. The learned opposite counsel Ms. Sonal Vyas, however, submitted that the impleadment application of the present appellant was earlier rejected by the learned Gujarat Revenue Tribunal and the second such application was preferred, without disclosing the first rejection. The said purchaser was directed by the learned Gujarat Revenue Tribunal vide order dated 12.06.2006 that his application would be heard at the time of final hearing. However, while passing the remand order, nothing was stated about giving him an opportunity of hearing by the learned Gujarat Revenue Tribunal. She, therefore, urged that the learned Single Judge was justified in holding that second such remand was not called for.

5. Having heard the learned counsel for the parties, we are of the opinion that the present intra-Court appeal deserves to be allowed and we cannot agree with the view of the learned Single Judge that the second remand was not at all called for. While determining the tenancy rights of the respondent, purchaser of the land in question, the present appellant - Amrutsinh Nathhusinh Padhiyar, does not seem to have been heard by any of the revenue authorities below so far, even if the impleadment application was not finally decided giving him such a right to be heard. Earlier, the land-holder - Firozsha Ratansha Bulsarana had sold the land in question in favour of the present appellant - Amrutsinh Nathuthusinh Padhiyar and therefore, he could not object or at least lost his interest to the tenancy rights of the writ petitioner - Narsing Maganlal Padhiyar. Without allowing the present purchaser-appellant an opportunity of being heard, in our opinion, a miscarriage of justice has resulted and therefore, the learned Gujarat Revenue Tribunal was justified in making a remand

C/LPA/668/2016 JUDGMENT

order on 18.11.2011 remanding the case back to the Mamlatdar.

6. Therefore, we are inclined to allow the present intra-court appeal and accordingly, set aside the order of the learned Single Judge dated 18.06.2016. We remand the case back to the concerned Mamlatdar to provide an opportunity of hearing to both the parties, namely, Narsing Maganlal Padhiyar, who claims to be tenant of Amrutsinh Naththusinh Padhiyar. Since the matter is very old, we direct the concerned Mamlatdar to decide the said case upon remand, as expeditiously as possible, preferably within Six Months from today. The parties may appear before the authority concerned, at the first instance, on 08.02.2021. All the contentions of both the parties are kept open. With the above observations and directions, the appeal stands disposed of with no order as to costs.

(DR. VINEET KOTHARI,J)

(GITA GOPI, J) PRAVINKARUNAN