Gujarat High Court
Navrangpura Gam Dharmada Trust ... vs Gautambhai Bhikhabhai Thakor on 30 June, 2021
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/LPA/1655/2019 JUDGMENT DATED: 30/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1655 of 2019
In R/SPECIAL CIVIL APPLICATION NO. 5342 of 2017
With
CIVIL APPLICATION (FOR STAY) NO. 1 of 2019
In R/LETTERS PATENT APPEAL NO. 1655 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA Sd/-
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI Sd/-
==========================================================
1 Whether Reporters of Local Papers may be allowed No
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy No
of the judgment ?
4 Whether this case involves a substantial question No
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
==========================================================
NAVRANGPURA GAM DHARMADA TRUST THRU TRUSTEES
Versus
GAUTAMBHAI BHIKHABHAI THAKOR
==========================================================
Appearance:
MR. MEHUL SURESH SHAH, LD. SR. COUNSEL WITH MR VISHAL C
MEHTA(6152) for the Appellant(s) No. 1,2,3,4
for the Respondent(s) No. 2,3,4,5
MR. ANSIN DESAI, LD. SR. COUNSEL WITH MR. ZALAK B PIPALIA(6161)
for the Respondent(s) No. 1
==========================================================
CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 30/06/2021
Page 1 of 34
Downloaded on : Mon Sep 06 19:48:16 IST 2021
C/LPA/1655/2019 JUDGMENT DATED: 30/06/2021
ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE J.B.PARDIWALA)
1. This appeal under Clause 15 of the Letters Patent is
at the instance of the original writ applicant and is
directed against the judgment and order passed by a
learned Single Judge of this Court dated 26.08.2019 in the
Special Civil Application No.5342 of 2017, by which, the
learned Single Judge, in exercise of his supervisory
jurisdiction under Article 226 of the Constitution of India
declined to entertain the writ application and rejected the
same thereby affirmed the concurrent findings recorded
by three revenue authorities.
2. The facts, giving rise to this appeal, may be
summarized as under;
2.1 The Appellant No.1 is a registered trust and the
Appellants Nos.1.1 to 1.3 are its Trustees. The case of the
appellants, as pleaded in the writ application, is as under;
"1. That the Petitioner No.1 is a Registered trust
and the Petitioner Nos. 1(1) to 1(3) are its Trustees
and are residing at the address mentioned in the
cause title of the present petition.
2. That the Petitioner, by way of the present
petition, seek to challenge the legality and validity of
the order passed by the Respondent No.5 in Revision
Application No.TEN/BA/375/15 on date 17.11.2016,
rejecting the same by confirming the order passed
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by the Respondent No.3 in Tenancy Appeal Case
No.46/2012 dated 9.9.2015 as well as the order
passed by the respondent No.2 in Remand Tenancy
Case No.25/2007 dated 10.05.2012, without
considering the relevant provisions of the Gujarat
Tenancy & Agricultural Lands Act, 1948 (hereinafter
referred to as the "Act", for short) in their true spirit
and perspective and erroneously considering the
locus of the Respondent No.1 in whose favour the
order of the Respondent No.2 is passed.
3. That the facts, in brief, leading to the present
Special Civil Application, are as under:
GROUNDS
(1) That the Petitioner-Trust is the owenr of the
land bearing S. No.185/2, T.P. No.19 and Final Plot
No.252, admeasuring A.0-24G (2694 sqmt after
implementation of Town Planning Scheme), situated
at Village Shekhpur-Khanpur, Taluka-City
Ahmedabad (hereinafter referred to as the land in
question, for short).
(2) That, on date 6.12.1994, the original Applicant,
namely, Laxmiben Khodaji Dhulaji preferred an
application to the Respondent No.2 herein under the
provisions of Section 32G of the Act for recognizing
her tenancy rights over the land in question through
her father Khodaji Dhulaji by way of inheritance and
also prayed for fixation of the purchase price for the
same.
(3) That, pursuant to the said application dated
6.12.1994, preferred by the original Applicant, the
Respondent No.2, vide its order dated 06.04.1995 in
Tenancy Case No.316/94/32G allowed the same by
declaring the original Applicant Laxmiben as a
deemed tenant and also fixed the purchase price for
the land in question.
(4) That the Petitioner-Trust, feeling aggrieved by
C/LPA/1655/2019 JUDGMENT DATED: 30/06/2021
the said order passed by the Respondent No.2 dated
06.04.1995, preferred an appeal, being Tenancy
Appeal No.47/95 before the Respondent No.3 herein
under the provisions of Section 74 of the Act and the
respondent No.3, after due consideration, on date
26.12.1995, partly allowed the appeal preferred by
the petitioner-trust by quashing and setting aside the
order passed by the Respondent No.2 dated
06.04.1995, and remanded the matter to the
Respondent No.2 for deciding the same afresh.
(5) That, thereafter, the original Applicant,
Laxmiben, challenged the said order passed by the
Respondent No.3 dated 26.12.1995, before the
Respondent No.5 herein by filing two separate
revision applications, being TEN/BA/582/95 against
the interlocutory order passed by the Respondent
No.3 and being TEN/BA/119/96 against the final order
passed by the Respondent No.3 on date 26.12.1995.
(6) That the Respondent No.5, after hearing the
parties, on date 19.2.2007, rejected the revision
application filed against the final order and declared
the other revision application filed against the
interlocutory order as having become infructuous,
however, the Respondent No.5 further clarified in his
order that the Respondent No.2 shall decide the
matter without being influenced by the observations
made by the Respondent No.3 in its order dated
26.12.1995 in respect of the tenancy rights of the
original Applicant Laxmiben over the land in
question.
(7) That, upon remand of the matter by the
Respondent No.5, the Respondent No.2, after hearing
the parties, on date 10.05.2012, allowed the
application preferred by the original Applicant
Laxmiben, without appreciating the relevant
provisions of the Act in their true perspective as well
as erroneously held that the Respondent No.1 is a
legal heir and representative of the original Applicant
Laxmiben through an alleged Will and, accordingly,
C/LPA/1655/2019 JUDGMENT DATED: 30/06/2021
rejected the contention of the Petitioners in respect
of the locus of the Respondent No.1. A copy of the
order passed by the Respondent No.2 dated
10.05.2012 is produced herewith and marked as
Annexure-A to the present petition.
(8) That, thereafter, feeling aggrieved and
dissatisfied with the order passed by the Respondent
No.2 at Annexure-A herein, the Petitioners preferred
an appeal, being Tenancy Appeal Case No.46/2012,
under the provisions of Section 74 of the Act before
the Respondent No.3; however, the Respondent
No.3, without assigning any independent germane
reasons, dismissed the said appeal preferred by the
Petitioners, on date 9.9.2015. A copy of the said
order passed by the Respondent No.3 is produced
herewith and marked as Annexure-"B' to the present
petition.
(9) That, against the order passed by the
Respondent No.3 at Annexure- B herein, the
Petitioners further challenged the same before the
Respondent No.5 by preferring a revision application
on date 16.11.2015, being Revision Application
No.TEN/BA/375/15, inter alia, raising various
substantial grounds mentioned therein. A copy of the
memorandum of the said Revision Application is
produced herewith and marked as Annexure-'C' to
the present petition.
(10) That the Petitioners thereafter, at the time of
hearing of the revision application before the
Respondent No.5 also filed a detailed Written
Submissions on date 26.09.2016 in support of their
revision application at Annexure-'C'. A copy of the
said Written Submissions is produced herewith and
marked as Annexure-'D' to the present petition.
(11) That the Respondent No.5 then heard the
parties on the Revision Application and rejected the
same on date 17.11.2016, without considering the
Written Submissions advanced by the Petitioners, by
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confirming the orders passed by the Respondent
Nos.2 and 3 at Annexure-'A' and Annexure-'B' herein
without considering the locus of the Respondent No.1
in whose favour the Respondent No.2 has passed the
order. A copy of the said order passed by the
Respondent No.5 dated 17.11.2016 is produced
herewith and marked as Annexure-'E' to the present
petition."
2.2 Thus, it appears from the aforesaid that against the
concurrent findings recorded by the three revenue
authorities, the trust came before this Court by filing the
Special Civil Application No.5342 of 2017. The subject
matter of challenge before the learned Single Judge was to
the order passed by the Gujarat Revenue Tribunal.
2.3 Although the special civil application came to be filed
as one under Article 226 of the Constitution with a prayer
to issue a writ of certiorari, yet the learned Single Judge
appears to have treated the petition as one under Article
227 of the Constitution of India and decided not to
interfere with the concurrent findings of the three revenue
authorities in exercise of its supervisory jurisdiction.
2.4 In view of the aforesaid, obviously Mr. Ansin Desai,
the learned senior counsel assisted by Mr. Zalak Pipaliya
appearing for the private respondent raised a preliminary
objection as regards the maintainability of the present
appeal under clause 15 of the Letters Patent. Mr. Desai
would submit that although the petition has been labelled
as one under Article 226 of the Constitution of India, yet
C/LPA/1655/2019 JUDGMENT DATED: 30/06/2021
the learned Single Judge considered the same in exercise
of its supervisory jurisdiction under Article 227 of the
Constitution and, therefore, in such circumstances, the
appeal could not be said to be maintainable.
2.5 Mr. Desai vehemently submitted that the learned
Single Judge has made himself very clear in the impugned
judgment that his Lordship, in exercise of supervisory
jurisdiction under Article 227 of the Constitution of India,
would not like to disturb the concurrent findings recorded
by (i) the Mamlatdar & ALT, (ii) the Deputy Collector and
(iii) the Revenue Tribunal. According to Mr. Desai, when
the learned Single Judge has specifically referred to Article
227 of the Constitution, it would necessary imply that the
learned Single Judge thought fit not to treat the petition as
a writ application under Article 226 of the Constitution
though the petition has been labelled and styled as one
seeking a writ of certiorari under Article 226 of the
Constitution of India.
2.6. Mr. Mehul Suresh. Shah, the learned senior counsel
appearing for the appellant would submit that this Court
may not go by the nomenclature given to the petition.
Once the writ applicant invokes the writ jurisdiction of the
High Court under Article 226 of the Constitution of India
and prays for a writ of certiorari, then the learned Single
Judge should treat the same as a writ application.
According to Mr. Shah, the appeal is maintainable under
clause 15 of the letters patent.
C/LPA/1655/2019 JUDGMENT DATED: 30/06/2021
2.7. As Mr. Desai, the learned senior counsel appearing
for the respondent has raised a preliminary objection as
regards the maintainability of the present appeal under
Clause 15 of the Letters Patent, we should deal with such
objection.
2.8. A Larger Bench of this Court in the case of Gujarat
State Road Transport Corporation vs. Firoze M.
Mogal, reported in 2014 (2) GLR 1373 had the occasion to
consider the phrase "original jurisdiction" appearing in
Clause 15 of the Letters Patent and how the same should
be construed. The Larger Bench laid down the following
principles;
"(i) the first and foremost test that must be applied is
the pleadings in the writ petition. This is clear from
the observations of the Apex Court in the case of
Mangalbhai and ors. v. Radhey Shyam, (1992) 3 SCC
448, wherein at para 6 of the judgment, the Apex
Court has observed that where in the totality of the
facts and circumstances of the case, the pleadings of
the parties in the writ petition and the judgment of
the Single Judge leave no manner of doubt that it
was an order passed under Article 226 of the
Constitution, a Letters Patent Appeal would be
maintainable. Similar observations are to be found in
Sushilabhai's case, reported in AIR 1992 SC 185,
where a reference is made in para 3 of the judgment
to the ground taken in the writ petition, if
unmistakably go to show that it was a petition under
Article 226, the Letters Patent appeal would be
maintainable.
(ii) the second test would be the approach and the
observations of the Single Judge as to whether he
was exercising the power under Article 226 or under
C/LPA/1655/2019 JUDGMENT DATED: 30/06/2021
Article 227. The Apex Court held this in para 6 of its
judgment in Mangalbhai's case (supra) and similar
observations are to be found in Sushilabhai's case
(supra) in paras 3 and 4 of its judgment. However,
we clarify that this would not be the sole
consideration because the nomenclature of the
proceeding or reference to a particular article of the
Constitution in the judgment may not be final or
conclusive. As observed by the Supreme Court in
Ramesh Chandra (supra), if it were so, a petition
strictly falling under Article 226 of the Constitution
simplicitor can be disposed of by a Single Judge
observing that he was exercising power of
superintendence under Article 227 of the
Constitution. At this stage, it is necessary for us to
state that the learned Single Judge should clarify,
whether any case for a writ of certiorari has been
made out by the petitioner as prayed for and if the
answer is no, then the learned Single Judge should
assign reasons in brief as to why no case for a writ of
certiorari has been made out. Such reasons in brief
would make the task of the LPA bench relatively
easier in deciding whether the LPA is maintainable or
not.
(iii) the third factor which is relevant and most
important is whether the person, authority or State
against whom the writ is sought, was made a party,
which is the requirement of a petition under Article
226 of the Constitution, unlike a petition under
Article 227 of the Constitution, where the Court or
the Tribunal is not required to be made a party. This
test emerges from the observations of the apex
Court in Umaji's case (supra). We clarify that in the
case of Savitri Devi (supra), the apex Court has
disapproved the practice of the judicial officers being
impleaded as respondents in the petitions filed in the
High Court, and the Special Leave Petitions filed in
the apex Court. The observations made by the
Supreme Court should be understood to unburden
the judicial officers being made parties in
proceedings as against the persons, authority or a
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State being required to be made as party in a
petition under Article 226 and the Court or a Tribunal
not being so required in a petition under Article 227
of the Constitution.
(iv) the fourth factum would be the relief prayed for
in the petition. Where the relief prayed for is for
issuance of writ in the nature of certiorari, such writ
would normally be issued in exercise of powers under
Article 226 of the Constitution where such writs are
directed against the person, authority or the State.
Where however, the reliefs prayed for are in exercise
of powers of superintendence conferred upon every
High Court under Article 227 of the Constitution,
which is a supervisory jurisdiction intended to ensure
that the subordinate Courts and the Tribunals act
within the limits of the authority and according to
law, the exercise of jurisdiction would be under
Article 227. This particular test emerges from the
observations made in para 99 of the judgment in
Umaji's case (supra);
(v) the fifth factor is whether the jurisdiction invoked
in the petition irrespective of the lable mentioned in
the title of the petition was primarily of original
nature, in which case it would be a petition under
Article 226 of the Constitution, or whether it was
invoked in the nature of supervisory jurisdiction in
which case it would be under Article 227 of the
Constitution. The observations to this effect are
found in para 100 of the decision of the Supreme
Court in Umaji's case (supra) where there is a
reference to some Privy Council decisions also.
(vi) The sixth test to be applied should be the real
nature of the order or the principal relief granted by
the Court. Where substantial part of the order is
under Article 226 of the Constitution, the mere fact
that in the final order the Court gives ancillary
direction which may burden to Article 227 of the
Constitution out not to deprive the party of a writ of
appeal under Clause 15 of the Letters Patent. This
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test emerges from para 106 of the decision of the
Supreme Court in Umaji's case (supra)."
2.9 In our opinion, the sixth test as regards the real
nature of the order or the principal relief granted by the
Court is a very important test to determine whether the
petition in substance was treated by the learned Single
Judge as one under Article 226 of the Constitution of India
or under Article 227 of the Constitution of India. We would
like to elaborate this test only with a view to explain that
the final order or the principal relief will govern the
maintainability of the Letters Patent Appeal under Clause
15 of the Letters Patent.
2.10. Ordinarily, in each and every petition, whether the
facts justify or otherwise, there is a prayer for issue of a
writ of certiorari. However, as discussed in the earlier part
of our judgment that by merely praying for a writ of
certiorari, the petition which is otherwise under Article 227
of the Constitution will not become automatically a writ
application under Article 226 of the Constitution. When a
petition praying for a writ of certiorari is taken up for
hearing by the learned Single Judge, three courses are
open to the Court,
(i) hear the counsel appearing for the petitioner and
dismiss the same in limine having not found any
substance in the petition;
(ii) the Court may find some prima facie case to issue
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Notice to the other side and after hearing both the side
decides the matter one way or the other; and
(iii) the Court may find an error apparent on the face of
the record and may issue Rule Nisi.
2.11. In our opinion, if the court finds no substance in the
petition and dismisses the petition in limine thereby
confirming the order passed by any authority, Tribunal or
a Court, then in such circumstances it could be said that
the court did not find any case for issue of a writ of
certiorari and against such an order no Letters Patent
Appeal would lie.
2.12 At this stage, we may clarify that the test no.(iii) did
not find favour with the Supreme Court in the case of
Jogendrasinhji Vijaysinghji vs. State of Gujarat,
(2015) 9 SCC 1. In the said case,, the Supreme Court took
the view that the writ-petition can be held to be
maintainable even if the tribunal is not impleaded as a
party respondent in the petition.
2.13 Ultimately, we need to keep in mind the
observations of the Supreme Court in Jogendrasinhji
Vijaysinghji [supra] that whether a Letters Patent Appeal
would lie against the order passed by the learned Single
Judge that has travelled to him from the other tribunals or
authorities, would depend upon many facet. At the same
time, we should also bear in mind the observations of the
Supreme Court in the case of Himalayan Cooperative
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Group Housing Society [supra] that even if the petition is
styled as one under Article 226 of the Constitution, if the
contents and prayers thereunder require only exercise of
supervisory jurisdiction, then the same could be treated as
a petition filed under Article 227 of the Constitution of
India only.
2.14 The adjudication of the issue whether the Appeal
before us is maintainable or not, would remain
incomplete, if we fail to make a reference of a Full Bench
decision of the Bombay High Court in the case of M/s.
Advani Oerlikon Ltd. vs. Machindra Govind
Makasare & others, rendered in the Letters Patent
Appeal No.261 of 2005, decided on 17th March, 2011,
wherein Hon'ble Justice Dr. D.Y Chandrachud [as His
Lordship then was], speaking for the Full Bench, after an
exhaustive review of various decisions of the Supreme
Court starting from Basappa's case [supra], laid down the
following principles of law:
"Re: 1 : It is not a correct proposition in law that this
Court cannot correct jurisdictional errors or errors
resulting in miscarriage of justice committed by
authorities which are subordinate to it by invoking
powers under Article 226 of the Constitution.
Re: 2 : It is not a correct proposition in law that
jurisdictional errors or errors resulting in miscarriage
of justice committed by subordinate Courts/Tribunals
can only be corrected by this Court in exercise of
powers under Article 227 of the Constitution. The writ
of certiorari can be issued under Article 226 of the
Constitution where the subordinate Court or Tribunal
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commits an error of jurisdiction. Where the
subordinate Court or Tribunal acts without
jurisdiction or in excess of it or fails to exercise
jurisdiction, that error of jurisdiction can be
corrected. Moreover when the Court or tribunal has
acted illegally or improperly such as in breach of the
principles of natural justice the writ of certiorari is
available under Article 226.
Re: 3 : Where the facts justify the invocation of either
Article 226 or Article 227 of the Constitution to
correct a jurisdictional error or an error resulting in a
miscarriage of justice committed by authorities
subordinate to this Court, there is no reason or
justification to deprive a party of the right to invoke
the constitutional remedy under Article 226 of the
Constitution.
Re: 4 : It is open to the Court while dealing with a
petition filed under Articles 226 and/or 227 of the
Constitution or a Letters Patent Appeal under Clause
15 of the Letters Patent arising from the judgment in
such a petition to determine whether the facts justify
the party in filing the petition under Article 226
and/or 227 of the Constitution.
Re: 5 : The cause title, the averments and prayers in
the petition can be taken into account while deciding
whether the petition is one under Article 226 and/or
227 of the Constitution.
Re: 6 : If the petitioner elects to invoke Article 226
and/or 227 of the Constitution and the facts justify
such invocation, a Letters Patent Appeal against the
order of the Learned Single Judge would be
maintainable even though the Single Judge has
purported to exercise jurisdiction only under Article
227 of the Constitution. The fact that the Learned
Single Judge has adverted only to the provisions of
Article 227 of the Constitution would not bar the
maintainability of such an appeal. The true test is
whether the facts justify the invocation of Articles
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226 and 227 and this has to be determined on the
facts of each case having due regard to (I) the nature
of the jurisdiction invoked; (ii) the averments
contained in the petition; (iii) the reliefs sought; and
(iv) the true nature of the principal order passed by
the Single Judge. The true nature of the order passed
by the Single Judge has to be determined on the
basis of the principal character of the relief granted.
The fact that an ancillary direction has been issued
under Article 227 of the Constitution would not dilute
the character of an order as one with reference to
Article 226. What has to be ascertained is the true
nature of the order passed by the Single Judge and
not what provision is mentioned while exercising this
power.
Re: 7 : Where a petition is filed under Articles 226
and 227 of the Constitution and the facts justify the
filing of such a petition, it is not lawful for the Court
to hold that jurisdictional errors or errors resulting in
a miscarriage of justice committed by the
subordinate Courts or Tribunals can be corrected
only by exercising powers under Article 227 (and that
the mentioning of Article 226 is redundant), thus
depriving the party of a right of appeal under Clause
15 of the Letters Patent.
Re: 8 : When a petition is filed under Articles 226 and
227 of the Constitution and the facts justify the filing
of such a petition, it is not open to the Court to hold
that Article 226 need not have been invoked, on the
ground that Article 227 is clothed with the power to
grant the same relief thus depriving the party of a
right to elect or choose a remedy.
Re: 9 : In a situation where a petition is filed under
Article 227 of the Constitution and judgment is
rendered in favour of the Petitioner, recourse to an
appeal under Clause 15 of the Letters Patent is not
barred to the Respondent before the Single Judge
merely on the ground that the petition was under
Article 227."
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2.15 In the last two paragraphs of the judgment, the Full
Bench observed as under :
"21. In State of Madhya Pradesh vs. Visan Kumar
Shiv Charanlal (supra), the appeal before the Division
Bench was filed by the Respondent to the
proceedings before the Single Judge in a petition
which had been instituted under Article 227.
Accepting the submission that a nomenclature is of
no consequence and it is the nature of the reliefs
sought and the controversy involved which
determine which Article is applicable, the Supreme
Court held that the appeal before the Division Bench
was maintainable. A similar position arose in the
decision of the Supreme Court in M.M.T.C. vs.
Commissioner of Commercial Tax (supra). The
Division Bench of the High Court had held that since
the petition before the Single Judge was under Article
227 of the Constitution, an appeal at the behest of
the Respondent to the petition was not maintainable.
The Supreme Court held that the High Court was not
justified in holding that the Letters Patent Appeal was
not maintainable since the High Court did not
consider the nature of the controversy and the
prayers involved in the Writ Petition.
22. Consequently, when a petition which is filed
before the Single Judge invokes Article 227 of the
Constitution and a decision is rendered in favour of
the Petitioner, it is open to the Respondent to
demonstrate before the Division Bench in appeal that
the nature of the controversy, the averments
contained in the petition, the reliefs sought and the
principal character of the order of the Learned Single
Judge would support the maintainability of the appeal
on the ground that the facts justify the invocation of
both Articles 226 and 227 of the Constitution.
Whether that is so will be determined by the Division
Bench on the circumstances of each case."
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2.16 Having gone through the pleadings in the petition
filed by the appellants, more particularly, the grounds
urged therein and also the reliefs prayed for in the
petition, we are inclined to hold that the appeal is
maintainable. We are not inclined to dismiss the appeal
on the ground that the learned Single Judge treated the
petition as one under Article 227 of the Constitution of
India and rejected the same.
2,17 We now proceed to look into the appeal on merits.
The subject matter of dispute is a parcel of land bearing
Survey No.185/2 of the Town Planning Scheme No.9, Final
Plot No.252, admeasuring A0-34G (2694 square meters),
situated at village Shekhpur-Khanpur, Taluka-City
Ahmedabad.
2.18 One Khodaji Dhulaji Thakor was cultivating the land
in question between 15.06.1955 and 01.04.1957. If this is
to be believed as true, then Khodaji Dhulaji could be said
to be a deemed purchaser in accordance with Section 4 of
the Bombay Tenancy & Agricultural Lands Act, 1948 (for
short " the Tenancy Act").
2.19 01.04.1957, is the "tillers day". Section 4 of the
Tenancy Act provides that a person lawfully cultivating
any land belonging to another person shall be deemed to
be a tenant if such land is not cultivated personally by the
owner and (a) if such person is not a member of the
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owner's family or (b) servant on wages, payable in case or
kind or (c ) the mortgagee in possession.
2.20 On 30.11.1960, by Gujarat Act 16 of 1960, various
provisions of the Tenancy Act came to be amended.
2.21 In Section 32 of the Principal Act, after sub-section
(3), sub sections were inserted.
"...(4) On the date of the commencement of the Bombay
Tenancy and Agricultural Lands (Gujarat Amendment) Act,
1960 (Guj. XVI of 1960), every tenant in the areas within
the limits of Municipal boroughs within the meaning of the
Bombay Municipal Boroughs Act, 1925 (Bom. XVIII of
1925), or within the limits of municipal districts
constituted under the Bombay District Municipal Act, 1901
(Bom. III of 1901), shall subject to the other provision of
this Act, be deemed to have purchased from a landlord
free from all encumbrances subsisting thereon on the said
date the land held by him as tenant, as if the said date
were the tiller day."
Section 43C of the Act was also amended and Clause (c )
and Clause (d) were deleted.
2.22 The appellant-trust filed an application dated
25.06.1973 under Section 88B of the Tenancy Act, seeking
exemption from certain provisions. Such application was
addressed to the local authority. The said application
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came to be rejected by the Deputy Collector and the
order was later affirmed by the Gujarat Revenue Tribunal.
2.23 The Gujarat Revenue Tribunal, vide its order dated
27.06.1974, while affirming the order passed by the
Deputy Collector, rejecting the application under Section
88B of the Tenancy Act, held that as the trust was a
composite trust, it failed to satisfy the criteria as laid down
under Section 88B of the Act. This order attained finality.
2.24 On 20.10.1973, Khodaji Dhulaji Thakor passed away
leaving behind his wife Maniben Khodaji Thakor and
daughter Laxmiben Khodaji Thakor. The wife Maniben
passed away on 09.09.1985 and the unmarried daughter
Laxmiben passed away on 28.02.2012.
2.25 It is not in dispute that Laxmiben, referred to above,
executed a registered Will in favour of her nephew,
namely, Gautambhai Bhikhabhai Thakor, i.e, the
respondent No.1 herein.
2.26 Laxmiben Khodaji Thakor preferred an application
during her life time dated 06.12.1994 addressed to the
Mamlatdar & ALT under the provisions of Section 32G of
the Act to assert her tenancy rights over the land in
question through her father late Khodaji Dhulaji by way of
inheritance. Laxmiben prayed for fixation of purchase
price under the provisions of Section 32G of the Act.
2.27 The Mamtldar & ALT in the Tenancy Case
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No.316/94/32G vide order dated 06.04.1995 allowed the
application declaring Laxmiben as deemed tenant and
also proceeded to fix the purchase price for the land in
question.
2.28 The appellant-trust challenged the order passed by
the Mamlatdar before the Deputy Collector by way of
appeal under Section 74 of the Act. The appeal came to
be partly allowed vide order dated 26.12.1995. The
Deputy Collector quashed and set aside the order and
remanded the proceedings to the Mamlatdar for fresh
consideration only on the question whether Laxmiben was
a "permanent" or "deemed tenant". The issue of
Laxmiben being tenant was not disturbed.
2.29 Laxmiben, being dissatisfied with the order passed by
the Deputy Collector, preferred a revision application
before the Gujarat Revenue Tribunal. The Gujarat
Revenue Tribunal rejected the revision application filed by
Laxmiben vide order dated 19.02.2007 and remanded the
proceedings to the Mamlatdar & ALT for fresh
consideration without being influenced by the
observations made by the Deputy Collector in his order
dated 26.12.1995.
2.30 As noted above, Laxmiben instituted a
registered Will dated 30.04.2007 in favour of the
respondent No.1 herein. The Will came into force with
Laxmiben passing away on 28.02.2012.
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2.31 Upon proceedings being remanded by the Tribunal to
the Mamlatdar & ALT, the Mamlatdar & ALT, in its order
dated 10.05.2012, recorded the following findings;
"1. That on date 01.04.1957, Khodaji Dhulaji is the
deemed tenant of the land in question.
2. No evidence is produced or led by the petitioner
trust to believe that on date 01.04.1957, Khodaji
Dhulaji was not cultivating the land in question and
cannot be considered to be a deemed tenant;
3. That Laxmiben in the capacity of daughter of
deemed tenant, i.e, Khodaji Dhulaji is entitled to the
same status as that of Khodaji Dhulaji.
4. Purchase price is fixed and order is passed to
issue certificate under Section 32M of the Gujarat
Tenancy and Agriculatural Lands Act subject to
payment of purchase price."
2.32 It appears that thereafter an application was filed in
the City Civil Court being the Misc. Application No.651 of
2012 for obtaining probate of the Will, referred to above.
Such application was filed on 01.09.2014. It is not in
dispute that the appellant-trust was a party in the Civil
Misc. Application No.651 of 2012 filed by the respondent
No.1 for obtaining probate and the trust had raised its
objections. However, later, such objections were
withdrawn and the probate was issued. This order also
attained finality.
2.33 The trust, being dissatisfied with the order dated
10.05.2012, referred to above, passed by the Mamaltdar &
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ALT, filed an appeal under Section 74 of the Tenancy Act
before the Deputy Collector. The appeal came to be
dismissed vide order dated 10.05.2012.
2.34 The respondent No.1 herein proceeded to pay the
purchase price of the subject land as fixed and a
certificate under Section 32M of the Tenancy Act came to
be issued. The trust, thereafter, questioned the legality
and validity of the order passed by the Deputy Collector,
dismissing the appeal, referred to above, by filing revision
application before the Tribunal. The Tribunal vide its order
dated 17.11.2016, rejected the revision application
holding as under;
"1. That on date 01.04.1957, Khodaji Dhulaji is the
deemed tenant of the land in question.
2. No evidence is produced or led by the petitioner
trust to believe that on date 01.04.1957, Khodaji
Dhulaji was not cultivating the land in question and
cannot be considered to be a deemed tenant.
3. That Laxmiben in the capacity of daughter of
deemed tenant i.e. Khodiaji Dhulaji is entitled to the
same status as that of Khodaji Dhulaji.
4. Purchase price is fixed and order is passed to
issue certificate under Section 32M of the Gujarat
Tenancy and Agricultural Lands Act subject to
payment of purchase price.
5. That the trust does not have certificate under
Section 88B of the Gujarat Tenancy and Agricultural
Lands Act and the trust has not provided any
evidence to show the activities undertaken by it."
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2.35 The trust was, thereafter, left with no other option
but to come before this Court by way of filing the Special
Civil Application No.5342 of 2017.
2.36 The learned Single Judge declined to disturb the
concurrent findings recorded by three revenue authorities
and rejected the petition holding as under;
"18. I have heard learned advocates appearing for
the respective parties, perused the orders impugned
in the petition as well as several orders passed by
several authorities as well as by the Gujarat Revenue
Tribunal dealing with the case in the year 1994 - 95,
Probate certificate issued by the City Civil Court,
Ahmedabad. Since contention was raised about the
stand taken by Laxmiben about her relationship with
the deceased Khodaji and when certain observations
were made in the order passed by the Mamlatdar,
ALT as well as Deputy Collector, the original record
was called for and the same has been examined,
though the Court was aware that the case is being
considered under Article 227 of the Constitution of
India and there would be a narrow scope for the
Court to examine the case on factual aspects, when
there are concurrent findings by the three lower
authorities and Tribunal.
19. The Gujarat Tenancy and Agricultural Lands Act,
1948 was nomenclature as Bombay Tenancy and
Agricultural Lands Act, 1948 since the area of the
present State of Gujarat was part of Bombay State,
the provisions were made applicable to all the
agricultural lands covered under the then Bombay
State. The Bombay word has been substituted with
the word Gujarat only in the year 2011.
19.1 It is an undisputed fact that the petitioner Trust
had applied to get exemption under Section 88B of
the Tenancy Act. The Deputy Collector rejected the
application by assigning reasons which was
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confirmed by the Gujarat Revenue Tribunal in
Revision Application No. TEN B.A. 573 of 1973 by
judgment and order dated 27.6.1974. The said
decision has become final and, therefore, the
petitioner would not be entitled to get any benefits
out of Section 88B.
19.2 Several documents which have been produced
before this Court and were produced before the
authorities below do suggest that Khodaji Dhulaji
Thakore was in occupation of the land in question
even before the enactment of the Tenancy Act, 1948.
He continued to cultivate the land for decades, even
after 1948. He expired in the year 1973. Subsequent
to death of Khodaji, Laxmiben continued to cultivate
the land. She applied for the first time in the year
1994 to get benefit under Section 32 of the Tenancy
Act. The Mamlatdar & ALT, Ahmedabad by his order
dated 6.4.1995 held that the said Laxmiben is a
permanent tenant. Similar contentions were raised
by the petitioner Trust that the Act would not cover
the land in question since the same was within the
limits of Municipal borough. However, the same was
negatived by the Mamlatdar. The said decision was
challenged by the petitioner Trust by way of filing
Appeal No.47 of 1995, which came to be allowed in
part and the matter was remanded. However, if the
said order dated 26.12.1995 is perused, the matter
was remanded to Mamlatdar to decide only the
question whether the said Laxmiben is a permanent
tenant or a deemed tenant. The Gujarat Revenue
Tribunal did not accept the revision application filed
by the respondent No.1, however, has observed in its
order that since the matter is remanded only for the
purpose of deciding the nature of tenancy, the
Tribunal would not like to interfere with the same.
20. In view of the above facts, the Mamlatdar has
decided the case and has again dealt with all the
contentions which were raised before him as well as
have been raised by filing the present petition.
21. It also appears from the record and it is
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established before the authorities below that
deceased Laxmiben was daughter of Khodaji Dhulaji.
It is also established that the respondent No.1 is the
nephew of the deceased Laxmiben in whose favour
the Probate has been issued which has become final.
21.1 A Probate certificate has been issued in favour
of respondent No.1 by a competent Civil Court which
has become final.
22. As stated herein above, I have also gone through
the depositions of Laxmiben and documents
produced before the authorities below in support of
her say about her relationship with Khodaji. It has
been rightly held by the authority that she was the
daughter of the said Khodaji Dhulaji. Therefore, the
contentions raised by the petitioner with regard to
relationship of either the respondent No.1 with
Laxmiben as well as deceased Laxmiben with Khodaji
Dhulaji are required to be discarded. "
3. Mr. Mehul Suresh Shah, learned senior counsel
assisted by Mr. Vishal Mehta appearing for the appellant-
trust vehemently submitted that the learned Single Judge
committed a serious error in passing the impugned order.
The main thrust of the submission of Mr. Shah is that there
is nothing cogent and convincing to indicate that
Laxmiben was the daughter of late Khodaji Dhulaji Thakor.
It is argued that having regard to various discrepancy in
the deposition of Laxmiben, it cannot be said that the
respondent No.1 herein is the legal heir of Laxmiben. Mr.
Shah laid much emphasis on the fact that the learned
Single Judge failed to consider the long and inordinate
delay on the part of Laxmiben in invoking Section 32G of
the Act.
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4. Mr. Shah laid much emphasis on the fact by inviting
the attention of this Court to the operative part of the
order passed by the Mamlatdar & ALT dated 10.05.2012
that the order of issuance of purchase certificate under
the provisions of Section 32 of the Act was subject to the
declaration by a Competent Court/Revenue Authority that
Laxmiben was the legal heir of deceased tenant Khodaji.
According to Mr. Shah, a clear cut direction issued by the
Mamlatdar could not have been disturbed by the
respondent No.3, i.e, the Deputy Collector in appeal, more
particularly, when no appeal was filed by the respondent
No.1 against the order passed by the respondent No.2
dated 10.05.2012, referred to above.
5. In other words, according to Mr. Shah, nothing is
forthcoming from the evidence on record that Laxmiben
was the daughter of Khodaji and if Laxmiben is not to be
treated as the daughter of Khodaji, then she could not
have executed the Will bequeathing the property in favour
of the respondent No.1.
6. In such circumstances, referred to above, Mr. Shah
prays that there being merit in his appeal, the same be
allowed and the impugned judgment and order passed by
the learned Single Judge be set aside. Mr. Shah prays that
the Special Civil Application No.5342 of 2017 may be
allowed and the impugned order passed by the Revenue
Authorities be quashed.
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7. Mr. Desai would submit that no error, not to speak of
any error of law, could be said to have been committed by
the learned Single Judge in passing the impugned order.
He would submit that the learned Single Judge rightly
declined to interfere with the concurrent findings recorded
by the three revenue authorities. He would submit that
this Court, in an appeal under Clause 15 of the Letters
Patent, may not go into the disputed questions of fact like
whether Laxmiben was the daughter of Khodaji or not etc.
8. In such circumstances, referred to above, Mr. Desai
prays that there being no merit in this appeal, the same
may be dismissed.
ANALYSIS
9. Having heard the learned counsel appearing for the
parties and having gone through the materials on record,
the only question that falls for our consideration is
whether the learned Single Judge committed any error in
passing the impugned order.
10. We take notice of the fact that one of the main
contentions raised before the learned Single Judge on
behalf of the appellant-trust was that the land bearing
Survey No.185/2, Town Planning No.19, Final Plot No.252,
situated at Village Shekhpur-Khanpur, Taluka-City
Ahmedabad falls within the Municipal Limits since 1939
and is also included in the Town Planning Scheme and,
therefore, having regard to the provisions of Section 43C
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of the Tenancy Act, the provisions of the Tenancy Act
would cease to apply. This contention has been dealt with
very exhaustively by the learned Single Judge. However, in
the present appeal, this contention has been given up by
the learned senior counsel appearing for the appellant-
trust. The learned senior counsel appearing for the trust
only concentrated on the other issues as noted aforesaid.
11. We are of the view that having regard to the
concurrent findings of fact recorded by the three revenue
authorities and as confirmed by the learned Single Judge,
we should not interfere in the present appeal. The finding
of fact recorded is that Laxmiben was the daughter of
Khodaji Dhulaji. The further finding of fact recorded is that
the respondent No.1 herein is the nephew of late
Laxmiben, in whose favour, the probate has been issued
and has become final. The learned Single Judge, in Para-22
of the impugned judgment, has observed that considering
the depositions of Laxmiben before the authorities and
also other documents on record, it is established that she
was the daughter of Khodaji Dhulaji. It is too late in the
day now for the trust to raise the dispute as regards the
relationship of late Khodaji Dhulaji and late Laxmiben.
12. Keeping the aforesaid aspects in mind, can it be said
that the case on hand is one wherein this Court should
issue a writ of certiorari, as prayed for.
13. Relying on T.C.Basappa vs. Nagappa, AIR 1954 SC
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440, the constitution Bench of the Supreme Court in the
case of Hari Vishnu Kamath v. Ahmed Ishaque, reported in
AIR 1955 SC 233, laid down the following propositions as
well established :
"(1) Certiorari will be issued for correcting errors of
jurisdiction, as when an inferior court or tribunal acts
without jurisdiction or in excess of it, or fails to
exercise it.
(2) Certiorari will also be issued when the court or
tribunal acts illegally in the exercise of its undoubted
jurisdiction, as when it decides without giving an
opportunity to the parties to be heard, or violates the
principles of natural justice.
(3) The court issuing a writ of certiorari acts in
exercise of a supervisory and not appellate
jurisdiction. One consequence of such exercise of
powers would be that the court will not review the
findings of facts reached by the inferior court or
tribunal, even if they be erroneous."
14. The Court explained that a court which has
jurisdiction over a subject matter has jurisdiction to decide
wrong as well as right, and when the Legislature does not
choose to confer a right of appeal against that decision, it
would be defeating its purpose and policy if a superior
court were to rehear the case on the evidence and
substitute its own finding in certiorari.
15. In Syed Yakoob v. K.S.Radhakrishnan and
others, reported in AIR 1964 SC 477, His Lordship
P.B.Gajendragadkar, CJ., speaking for the constitution
Bench, placed the matter beyond any position of doubt by
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holding that the writ of certiorari can be issued for
correcting errors of jurisdiction committed by inferior
courts or tribunals. The observations of the court in para 7
are worth taking note of :
"7. The question about the limits of the jurisdiction of
High Courts in issuing a writ of certiorari under Art.
226 has been frequently considered by this Court
and the true legal position in that behalf is no longer
in doubt. A writ of certiorari can be issued for
correcting errors of jurisdiction committed by inferior
courts or tribunals : these are cases where orders are
passed by inferior courts or tribunals without
jurisdiction, or is in excess of it, or as a result of
failure to exercise jurisdiction. A writ can similarly be
issued where in exercise of jurisdiction conferred on
it, the Court or Tribunal acts illegally or improperly,
as for instance, it decides a question without giving
an opportunity to be heard to the party affected by
the order, or where the procedure adopted in dealing
with the dispute is opposed to principles of natural
justice. There is, however, no doubt that the
jurisdiction to issue a writ of certiorari is a
supervisory jurisdiction and the Court exercising it is
not entitled to act as an appellate Court. This
limitation necessarily means that findings of fact
reached by the inferior Court or Tribunal as result of
the appreciation of evidence cannot be reopened or
questioned in writ proceedings. An error of law which
is apparent on the face of the record can be
corrected by a writ, but not an error of fact, however
grave it may appear to be. In regard to a finding of
fact recorded by the Tribunal, a writ of certiorari can
be issued if it is shown that in recording the said
finding, the Tribunal had erroneously refused to
admit admissible and material evidence, or had
erroneously admitted inadmissible evidence which
has influenced the impugned finding. Similarly, if a
finding of fact is based on no evidence, that would be
regarded as an error of law which can be corrected
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by a writ of certiorari. In dealing with this category of
cases, however, we must always bear in mind that a
finding of fact recorded by the Tribunal cannot be
challenged in proceedings for a writ of certiorari on
the ground that the relevant and material evidence
adduced before the Tribunal was insufficient or
inadequate to sustain the impugned finding. The
adequacy or sufficiency of evidence led on a point
and the inference of fact to be drawn from the said
finding are within the exclusive jurisdiction of the
Tribunal, and the said points cannot be agitated
before a writ Court. It is within these limits that the
jurisdiction conferred on the High Courts under Art.
226 to issue a writ of certiorari can be legitimately
exercised."
16. In Surya Dev Rai v. Ram Chandra Rai, reported in
2003(6) SCC 675, a bench of two Judges held that the
certiorari jurisdiction though available should not be
exercised as a matter of course. The High Court would be
justified in refusing the writ of certiorari if no failure of
justice had been occasioned. In exercising the certiorari
jurisdiction, the procedure ordinarily followed by the High
Court is to command the inferior court or tribunal to certify
its record or proceedings to the High Court for its
inspection so as to enable the High Court to determine,
whether on the face of the record the inferior court has
committed any of the errors as explained by the Supreme
Court in Hari Vishnu Kamath (supra) occasioning failure of
justice.
17. From the aforesaid, it could be said in terms of a
jurisdictional error that want of jurisdiction may arise from
the nature of the subject matter so that the inferior court
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or tribunal might not have the authority to enter on the
inquiry. It may also arise from the absence of some
essential preliminary, or from the absence of jurisdictional
fact. Where the jurisdiction of a body depends upon a
preliminary finding of fact in a proceeding for a writ of
certiorari, the court may determine, whether or not that
finding of fact is correct. The reason is that by wrongly
deciding such a fact, the court or tribunal cannot give
itself the jurisdiction.
18. In Anisminic Limited v. Foreign Compensation
Commission, reported in (1969)2 AC 147, the House of
Lords has given a very broad connotation to the concept
of 'jurisdictional error'. It has been laid down in Anisminic
that a tribunal exceeds jurisdiction not only at the
threshold when it enters into an inquiry which it is not
entitled to undertake, but it may enter into an enquiry
within its jurisdiction in the first instance and then do
some thing which would deprive it of its jurisdiction and
render its decision a nullity. In the words of Lord Reid:
"But there are many cases where, although the
tribunal had jurisdiction to enter on the enquiry, it
has done or failed to do something in the course of
the enquiry which is of such a nature that its decision
is a nullity. It may have given its decision in bad
faith. It may have made a decision which it had no
power to make. It may have failed in the course of
the enquiry to comply with the requirements of
natural justice. It may in perfect good faith have
misconstrued the provisions giving it power to act so
that it failed to deal with the question remitted to it
and decided some question which was not remitted
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to it. It may have refused to take into account
something which it was required to take into
account. Or it may have based its decision on some
matter which, under the provisions setting it up, it
had no right to take into account. I do not intend this
list to be exhaustive."
19. So far as the errors of law are concerned, a writ of
certiorari could be issued if an error of law is apparent on
the face of the record. To attract the writ of certiorari, a
mere error of law is not sufficient. It must be one which is
manifest or patent on the face of the record. Mere formal
or technical errors, even of law, are not sufficient, so as to
attract a writ of certiorari. As reminded by the Supreme
Court time and again, this concept is indefinite and cannot
be defined precisely or exhaustively and so it has to be
determined judiciously on the facts of each case. The
concept, according to the Supreme Court in
K.M.Shanmugam v. SRVS (P) Ltd and others, reported in
AIR 1963 SC 1626, 'is comprised of many imponderables...
it is not capable of precise definition, as no objective
criterion could be laid down, the apparent nature of the
error, to a large extent, being dependent upon the
subjective element.' A general test to apply, however, is
that no error could be said to be apparent on the face of
the record if it is not 'self-evident' or 'manifest'. If it
requires an examination or argument to establish it, if it
has to be established by a long drawn out process of
reasoning, or lengthy or complicated arguments, on points
where there may considerably be two opinions, then such
an error would cease to be an error of law. (see
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Satyanarayan Laxminarayan Hegde v. Millikarjun
Bhavanappa Tirumale, reported in AIR 1960 SC 137).
20. In our opinion, no case is made out for issue of writ of
certiorari to quash the order passed by the Revenue
Tribunal.
21. For all the foregoing reasons, this appeal fails and is
hereby dismissed.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
Vahid
