Gujarat High Court
Gujarat Harijan Sevak Sangh vs Deceased Garbadji Khodaji Thru ... on 30 June, 2021
Bench: J.B.Pardiwala, Vaibhavi D. Nanavati
C/LPA/1213/2019 JUDGMENT DATED: 30/06/2021
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 1213 of 2019
In
R/SPECIAL CIVIL APPLICATION NO. 17492 of 2006
With
CIVIL APPLICATION (FOR STAY) NO. 2 of 2018
In
R/LETTERS PATENT APPEAL NO. 1213 of 2019
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
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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 ?
==========================================================
GUJARAT HARIJAN SEVAK SANGH
Versus
DECEASED GARBADJI KHODAJI THRU L/H AND L/R
==========================================================
Appearance:
MR VIJAY H NANGESH(3981) for the Appellant(s) No. 1
for the Respondent(s) No. 1,1.1
GOVERNMENT PLEADER(1) for the Respondent(s) No. 3,4
NOTICE SERVED(4) for the Respondent(s) No. 1.1.3,1.2,2,5
ROBIN PRASAD(9344) for the Respondent(s) No. 1.1.1,1.1.2,1.1.4
==========================================================
CORAM:HONOURABLE MR. JUSTICE J.B.PARDIWALA
and
HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI
Date : 30/06/2021
Page 1 of 10
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C/LPA/1213/2019 JUDGMENT DATED: 30/06/2021
ORAL JUDGMENT
(PER : HONOURABLE MS. JUSTICE VAIBHAVI D. NANAVATI)
1. This appeal under Clause 15 of the Letters Patent is at
the instance of the original writ applicant and is directed
against the order passed by a learned Single Judge of this
Court dated 7.9.2018 in the Special Civil Application No.17492
of 2006 by which the learned Single Judge disposed of the
writ application with a direction to the Mamlatdar to institute
proceedings under Section 32G of the Tenancy Act to fix the
purchase price of the land.
2. The facts giving rise to this appeal may be summarised as
under :-
2.1 The appellant (original respondent No.4) is a registered
Sangh who purchased the land bearing Survey Nos.386/2, 388/
A/2/2, 386/6 and 388/9 from one Cristian Missionary and
Alliance Trust by registered Sale Deed on 16.6.1965.
2.2 Respondents (original writ applicants) are the legal heirs
of Garbadji Khodaji who was cultivating some of the lands i.e.
bearing Survey Nos.386/2 and 388/2/1 which were carved out
from the original Survey No.388/A/2/2/ as tenant. With respect
to the land bearing Survey No.388/2/1 proceedings under
Section 32G of the Bombay Tenancy and Agricultural Land Act
in Tenancy Act were dropped because the Trust had produced
certificate of exemption under Section 88b of the Tenancy Act.
Appellant (original respondent No.4) approached the Mamlatdar
and ALT on 4.4.1984 under Section 70(b) and 32G of the
Tenancy Act contending that in land bearing Survey No.388/A/
2/1 admeasuring 1 Acre and 6 Gunthas, the name of Garbadji
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was wrongly shown in the village record and the same was
required to be deleted.
2.3 On issuance of notice by the Mamlatdar Garbadji and his
daughter-in-law jiviben made a statement that they never
cultivated the disputed land and the said land was always
cultivated by the owner. The Mamlatdar relied on the
statement of Garbadji/his family members to hold that Garbadji
was not a tenant of the said land. Accordingly the name of
Garbadji was ordered to be deleted from the revenue record
from 30.4.1984.
2.4 The order dated 30.4.1984 passed by Mamlatdar and
ALT was challenged by Garbadji and his family by filing
appeal before the Dy. Collector.
2.5 The Dy. Collector after one round of remand, by order
dated 30.9.1996 dismissed the appeal filed by Garbadji on the
ground that Garbadji had already deposed before the
Mamlatdar & ALT that he was not cultivator of the disputed
land. In the meantime, Garbadji died on 11.2.1989 and his
legal heirs filed revision application before the GRT. On
27.4.2006 the revision application came to be rejected by the
GRT confirming the order passed by the Mamlatdar & ALT as
well as Dy. Collector.
3. Being aggrieved and dissatisfied by the orders dated
30.4.1984, 31.3.1996 passed by the Mamlatdar & ALT and Dy.
Collector respectively and confirmed by the Gujarat Revenue
Tribunal vide order dated 27.4.2006, the legal heirs of
Garbadji approached this Court by filing Special Civil
Application No.17492 of 2006 which came to be disposed of by
order dated 7.9.2018.
C/LPA/1213/2019 JUDGMENT DATED: 30/06/2021
4. Being aggrieved and dissatisfied by the order 7.9.2018
setting aside the orders dated 30.4.1984, 31.3.1996 passed by
the Mamlatdar & ALT and Dy. Collector respectively and
confirmed by the Gujarat Revenue Tribunal vide order dated
27.4.2006 the learned Single Judge disposed of the Special
Civil Application No.17492 of 2006 the appellant (original
respondent No.4 ) filed the present appeal.
5. We have heard Mr. V. H. Nangesh, the learned counsel
appearing for the appellant (original respondent No.4 ) and Mr.
Meet Thakker, learned AGP appearing for the respondents -
State through video conferencing.
6. We should first look into the findings recorded by the
learned Single Judge while disposing of the writ petition. The
learned Single Judge while disposing of the writ petition made
following observations in paragraphs 13 to 18 :-
"13. Coming to the merits of the case one may recall
that the authorities below gave overwhelming importance
to the statement of Garbadji and his family members that
they had never cultivated the land in question as tenants
and the name of Garbadji entered the revenue record
only by mistake because he was the tenant of the
adjoining land. Though the Mamlatdar and Deputy
Collector have fleetingly referred to other materials on
record this is the prime factor which persuaded all the
three authorities to hold that Garbadji was not the tenant
on the suit land. In my opinion, in the process, the
authorities committed a serious error. As is well settled,
the Tenancy Act is a welframed legislation. By very
nature of things due to huge social economical and
C/LPA/1213/2019 JUDGMENT DATED: 30/06/2021
societal inequalities between the landholder and the
tenant, the Tenancy Act contains several measures to
ensure that the genuine tenancy is not terminated or
extinguished on mere mechanical confessions or
admissions by a tenant. Even a surrender of a tenancy
had to be through certain procedure to ensure that the
same was voluntarily and willingly done. When Garbadji
therefore voluntarily came before the Mamlatdar and
declared that he was not the tenant of the land though
his name appeared in the revenue records, the duty of
the Mamlatdar was to make further inquiries. The
Tenancy Act did not expect him to accept the statement
mechanically as if it was adversarial litigation.
14. In case of Bhikubhai Bhima Gaidhane and anr vs.
Khandu Daji Pagar and anr reported in AIR 1973
Bombay page 101, learned Single Judge of the Bombay
High Court observed that the opponent does not cease to
be a tenant or in possession of the land simply because
he states in the proceedings under section 32G that he
was neither a tenant nor in possession of the land in
question on the tiller's day. The Court thereafter referred
to the contemporaneous record and held that the
Mamlatdar committed an error in merely accepting the
declaration of the tenant which was contrary to the
record.
15. In case of Shanabhai Ghanabhai Baraiya (since decd.)
through Heirs vs. Chunibhai Govindbhai (Decd) through
Heirs and Karta of HUF and ors reported in 2017 (3)
GLR 2399 Division Bench of this Court reiterated this
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principal discussed by the Bombay High Court in above
judgement in following terms:
"12. We find force in the submissions made by Mr.Nikhil
Kariel learned advocate for the applicant based on law
laid down by the High Court of Bombay in the decision
of Bhikubai Bhima Gaidhane and another v. Khandu Daji
Pagar and another (Supra) that because the tenant has
made a statement before the Mamlatdar and ALT and,
therefore, he was no more tenant and no more in
possession and it should be treated as good as his giving
up his tenancy rights, is not correct position of law and
duty is cast upon Mamlatdar and ALT to hold proper
inquiry and in the above case ALT had dropped the
proceedings based on the statement of the tenant that he
had surrendered his tenancy and had given up his
possession, but at the same time operation of the social
legislation, which is for the benefit of the tenants and
also to safeguard their interest, will not stop their
termination of tenancy by virtue of surrender should be
in accordance with Section 15 of the Act at the same
time possession of the landlord should be in accordance
with Section 29 of the Act. As we are in agreement with
the law laid down by the High Court of Bombay in the
decision of Bhikubai Bhima Gaidhane and another v.
Khandu Daji Pagar and another (Supra), which still holds
good, order passed by the learned Single Judge
impugned in this Letters Patent Appeal, in view of the
above and collective and conjoint appreciation of law as
well as facts of the subject, and accordingly the order is
quashed and setaside. The Appeal is allowed to the
aforesaid extent."
16. With this background, one may refer to the
materials on record. As recorded by the Mamlatdar, the
proceedings under section 32G were instituted at the
relevant time. However, the same came to be dropped
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without full inquiry of the tenancy rights of Garbadji
since the Cristian Missionary produced exemption
certificate under section 88B of the Act. As rightly
pointed out by counsel for the petitioners, name of
Garbadji was mentioned in several other government
documents as occupant and tenant of the suit land. The
petitioners have produced before me Khedut Khatavahi
which shows the petitioner, as tenant of both these
Survey No. 386/2 and 388/A/2/1. Village forms are also
produced in which the name of Garbardji is consistently
shown from 1982 onwards till he died and thereafter of
his legal heirs. The most clinching piece of evidence
however is the registered sale deed dated 06.05.1965
under which, respondent No.4 purchased the suit land
besides other lands belonging to the Cristian Missionary.
This document refers to land bearing Survey No. 388/2/2
having area of 1 Acres and 30 Gunthas. As noted, I am
informed that this land bearing Survey No. 388 (A should
be there in between)/2/2 was sub-divided into 388/A/2/1
of 3 Acres and 6 Gunthas and 388/A/2/2 of 24 Gunthas.
In the sale deed, there is a clear mention of the seller
informing the purchaser that out of the total four parcels
of the land being sold, Garbadji is cultivating Survey No.
386 and 388/A/2/2.
17. Thus, when the sale of the lands took-place under
which, respondent No.4 purchased them, Survey No 388/
A/2/2 was not yet bifurcated and none other than the
owner of the land in the sale deed in writing declared
that Garbadji was cultivating such land. This is in
addition to referring to Survey No. 386 which also he
C/LPA/1213/2019 JUDGMENT DATED: 30/06/2021
agreed that Garbadji was cultivating. In clear terms,
thus, even as per the owner of the land who transferred
the same to respondent No.4, Garbadji was cultivating
Survey No. 388/A/2/2. Had the Mamlatdar and ALT
carried out proper inquiry which he was supposed to and
expected to instead of going mechanically by the
admission of Garbadji or his other family members, he
would have certainly found such material to clearly
establish the presence, occupation and cultivation of
Garbadji on the suit land.
18. Under the circumstances, impugned orders are set
aside. With this declaration, the Mamlatdar would now
institute proceedings under section 32G of the Act to fix
the purchase price of the land. Petition is disposed of
accordingly.
7. It appears that the learned Single Judge took notice of
the following :-
(a) There was no determination of tenancy rights of Garbadji.
(b) Proceedings under Section 32G were dropped merely on
the statement of respondent without full inquiry. Certificate
produced by the appellant Trust under Section 88b of the
Tenancy Act granting exemption was given credence by the
Mamlatdar and ALT.
(c) The legal heirs of Garbadji - respondent herein (original
appellant) had produced several Government documents/record/
evidencing that Garbadji was an occupant and tenant of the
said disputed land.
(d) The sale deed dated 6.5.1965 clearly mentions that the
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seller had informed the purchaser that out of total four parcels
of land being sold Garbadji was cultivating Survey No.386 and
388/A/2/2 respectively.
(e) Had the Mamlatdar and ALT carried out proper inquiry
which he was supposed to and expected to carry out, he
would have certainly found material to clearly establish the
occupation and cultivation by Garbadji on the disputed land.
The above referred aspects weighed with the learned
Single Judge while disposing of the writ application.
8. While dealing with the present appeal, one has to bear in
mind that a intra Court appeal is really not a statutory appeal
preferred against the judgment and order of an inferior to the
superior Court. The appeal inter se in a High Court from one
Court to another is really an appeal from one coordinate Bench
to another Coordinate Bench and it is for this reason that a
writ cannot be issued by one Bench of the High Court to
another Bench of the High Court nor can even the Supreme
Court issue writ to a High Court. Thus, unlike an appeal, in
general, an intra Court appeal is an appeal on principle and
that is why, unlike an appeal, in an ordinary sense, such as a
criminal appeal, where the whole evidence on record is
examined afresh by the appellate Court, what is really
examined, in an intra Court appeal, is the legality and validity
of the Judgment and/or Order of the Single Judge and it can
be set aside or should be set aside only when there is a patent
error on the face of the record or the judgment is against the
C/LPA/1213/2019 JUDGMENT DATED: 30/06/2021
established or settled principle of law. If two views are
possible and a view, which is reasonable and logical, has been
adopted by a Single Judge, the other view, howsoever
appealing such a view may be to the Division Bench, it is the
view adopted by the Single Judge, which should, normally, be
allowed to prevail. Hence, the impugned judgment of the
learned Single Judge should not be completely ignored and this
Court has to consider the judgment and order in its proper
perspective and if this Bench, sitting as an appellate Bench, is
of the view that the decision has been arrived at by the
learned Single Judge without any material error of fact or law,
then, the judgment, in question, should be allowed to prevail.
9. In view of the aforesaid, we see no good reason to
interfere with the impugned order in the present appeal.
10. In the result, this appeal fails and is hereby dismissed.
Consequently the civil application stands disposed of.
(J. B. PARDIWALA, J)
(VAIBHAVI D. NANAVATI,J)
K.K. SAIYED
