Late Suraji Savaji Thakor Through ... vs The Special Secretary (Appeals)
2022 Latest Caselaw 7240 Guj

    C/LPA/138/2022                                 CAV JUDGMENT DATED: 22/08/2022




           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 138 of 2022
          In R/SPECIAL CIVIL APPLICATION NO. 16881 of 2020

                                      With

               CIVIL APPLICATION (FOR STAY) NO. 1 of 2022
               In R/LETTERS PATENT APPEAL NO. 138 of 2022



FOR APPROVAL AND SIGNATURE:


HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND
KUMAR

and

HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI                               Sd/-

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

1 Whether Reporters of Local Papers may be allowed to No see the judgment ?

2      To be referred to the Reporter or not ?                             No

3      Whether their Lordships wish to see the fair copy of                No
       the judgment ?

4      Whether this case involves a substantial question of                No

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

================================================== LATE SURAJI SAVAJI THAKOR THROUGH HIS LEGAL HEIRS

Versus

THE SPECIAL SECRETARY (APPEALS) ==================================================

C/LPA/138/2022 CAV JUDGMENT DATED: 22/08/2022

Appearance:

MR VIMAL A PUROHIT(5049) for the Appellant(s) No. 1,1.1,1.2,1.3,1.4,1.5,1.6,1.7,1.8,1.9 MR.K.M.ANTANI, AGP for the Respondent(s) No. 1

SUNILSINH J CHAUHAN(8334) for the Respondent(s) No. 3 ==================================================

CORAM:HONOURABLE THE CHIEF JUSTICE MR. JUSTICE ARAVIND KUMAR and HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI

Date : 22/08/2022

CAV JUDGMENT

(PER : HONOURABLE MR. JUSTICE ASHUTOSH J. SHASTRI)

[1] By way of this Letters Patent Appeal the appellants -

original petitioners have questioned the legality and validity of

an oral order dated 01.12.2021 passed by the learned Single

Judge in Special Civil Application No. 16881 of 2020.

[2] The background of facts in brief is that the appellants -

original petitioners are the legal heirs of Suraji Savaji (tenant)

had applied for grant of land on 11.02.2014. The subject land in

question bearing Survey No.945/2a+3a+4a paiki, admeasuring

7790 sq.mtrs., situated at Village : Uvarsad, Taluka & District :

Gandhinagar. The said land in question was cultivated by the

Suraji Savaji i.e. ancestor of the original petitioners in the

capacity as a tenant and as such was declared as permanent

C/LPA/138/2022 CAV JUDGMENT DATED: 22/08/2022

tenant by virtue of order of Mamlatdar dated 27.11.1947 and

accordingly, the mutation entry was also incorporated in the

revenue record on 20.04.1948 being Entry No.3207. Under the

provisions of Section 32 G of Tenancy Act, said Suraji Savaji i.e.

ancestor of the original petitioners being the tenant was called

upon whether he is desirous of purchasing the land in question

or not but said Suraji Savaji had expired in the year 1960 and

legal heirs were not issued with a notice and therefore, the

purchase remained in effective possession resultantly an Entry

No.5579 on 15.03.1967 came to be made. Subsequently, a

Ganot case was registered bearing Ganot Case No.1808/88 and

by virtue of order dated 17.02.1988, the land came to be taken

over by State Government by virtue of provisions contained

under Section 32 P of Tenancy Act and entry to that effect has

also been mutated being Entry No.7984 dated 29.02.1988.

[2.1] According to the original petitioners after taking over

possession, the same has to be disposed of by virtue of

provisions contained under Section 32 P (2) (C) of the Tenancy

Act but it appears that said process had not been undertaken by

the State Government and as such appellants - original

C/LPA/138/2022 CAV JUDGMENT DATED: 22/08/2022

petitioners being the legal heirs of Suraji Savaji since cultivating

the land in question till 2013, hence once again, the proceedings

to take over possession under Section 32 P (4) of Tenancy Act

came to be initiated wherein the learned Mamlatdar and ALT

vide order dated 08.10.2013 directed to take over the

possession of land in question and possession came to be taken

from the appellants to which effect, a panchnama has also been

drawn on 30.10.2013.

[2.2] It is the say of the appellants that Mamlatdar and ALT has

initiated proceedings to dispose of the land by virtue of

provisions contained under Section 32 P (2) (C) of Tenancy Act

and issued a public notice as required under Rule 21(1) of the

Tenancy Act on 28.01.2014. The purchase price was pre fixed

and same was fixed at Rs.1162/-. The Notice came to be

published and the panchnama has also been executed with

respect to such publication on 28.01.2014. The original

petitioners being legal heirs and representatives of deceased

Suraji Savaji, the original tenant, has as such applied for grant

of land vide application dated 11.02.2014.

C/LPA/138/2022 CAV JUDGMENT DATED: 22/08/2022

[2.3] It is further the case of appellants that after a period of

five years, the appellants being the legal heirs of original tenant

Suraji Savaji comes in the top of priority list in consonance with

Section 32 P (2) (C) of the Tenancy Act and as such vide order

dated 16.01.2019 the learned and ALT has allotted the land to

the original petitioners and the purchase price which was fixed

of Rs.1162/- has also been paid by the original petitioners and

land has been allotted for cultivation to the original petitioners

with restriction stipulated under Section 43 of the Tenancy Act.

Entry to this effect has also been mutated being Mutation Entry

No.16649 on 29.05.2019 but according to original petitioners,

then suddenly having realized such situation the superior

authority i.e. learned Deputy Collector has taken the said order

of Mamlatdar and ALT in suo moto review and upon satisfaction,

the order dated 16.01.2019 is confirmed and consequential

effect is also not disturbed.

[2.4] It is further the case of the original petitioners that

respondent No.3 claiming to be the legal heir of the original

land owner had challenged the order of the Mamlatdar dated

C/LPA/138/2022 CAV JUDGMENT DATED: 22/08/2022

16.01.2019 before the learned Special Secretary Revenue

Department by way of revision No. MVV/GNT/GDHN/06 of 2019.

The thrust of the contention of the said revision was that before

passing the impugned order the Mamlatdar and ALT has not

extended any opportunity of hearing since the objectors were

the legal heirs of original landlord. After hearing both the sides

the learned SSRD was pleased to reject the appeal filed by

respondent No.3 on 25.08.2020 and simultaneously, the order

passed by Mamlatdar dated 16.01.2019 also came to be

quashed and set aside and consequently respondent No.1 has

remanded the matter back for undertaking the entire process

under Section 32 P (2) (C) of the Tenancy Act afresh and it is

this order dated 25.08.2020 was challenged in the petition filed

by present appellants.

[2.5] The learned Single Judge, after hearing at length, vide oral

order dated 01.12.2021 did not entertain the petition and by a

reasoned order the petition came to be dismissed and it is this

order of dismissal of petition which is made the subject matter

of the present Letters Patent Appeal before us.

C/LPA/138/2022 CAV JUDGMENT DATED: 22/08/2022

[3] Mr. Vimal A. Purohit, learned advocate appearing for the

appellants has vehemently contended that a close perusal of the

provisions contained under Section 32 of the Tenancy Act would

clearly indicate that allotment which was made in favour of the

appellants was just and proper and same ought not to have

disturbed in any manner having done so without interpreting

relevant provisions in its proper perspective, an error is

committed by learned Single Judge which requires to be

corrected. It has been submitted that at relevant point of time,

the ancestor deceased Suraji Savaji was declared as a

permanent tenant by virtue of specific order dated 27.11.1947,

which has also been given effect in the revenue entries and the

said aspect was not in dispute and it is only because of the fact

that Suraji Savaji had expired in 1960 the proceedings could not

be concluded of the purchase as contemplated under Section 32

G of the Tencancy Act and as such said purchase has remained

in effective pursuant to which, an entry came to be mutated on

15.03.1967 being Entry No.5579 and in between after taking

over the land under the head of Government, a fresh process

was undertaken in which the appellants have made an

C/LPA/138/2022 CAV JUDGMENT DATED: 22/08/2022

application for grant of land on 11.02.2014 and same has been

considered in accordance with law on 16.01.2019 and in fact the

purchase price was paid and hence, there was no just and

proper reason to unsettle such allotment which has taken place

in favour of the appellants. The impugned order passed by

SSRD dated 25.08.2020 as such was not sustainable in the eye

of law which aspect has not been considered in its proper

prospective by the learned Single Judge and therefore, the error

which has been crept in deserves to be corrected by quashing

and setting aside the same.

[3.1] According to Mr. Purohit, learned advocate appearing for

the appellant, the learned Single Judge has also not appreciated

the fact that purchase price having been pre fixed has been

bona fidely paid by the appellants and therefore there is hardly

any earthly reason for unsettling the allotment which had

already been made in favour of the original petitioners and

therefore order passed by the revisional authority which was not

in consonance with the scheme of the Tenancy Act prescribed

under Section 32 of the Tenancy Act ought to have been set

C/LPA/138/2022 CAV JUDGMENT DATED: 22/08/2022

aside. Hence, he contends that such serious error having not

been noticed by the learned Single Judge, impugned order

deserves to be set aside by allowing the appeal.

[3.2] Mr. Purohit, learned advocate has further submitted that

over the passage of time, if the price rise has raised to a

substantial rate, same may not be a ground for unsettling the

allotment, which has taken place in favour of the appellants and

therefore, question of undertaking a fresh process is not

fulfilling the test of scheme of the Act and therefore, learned

Single Judge has committed a serious error in giving undue

weightage to such circumstance and on this ground also, the

order passed by the learned Single Judge deserves to be set

aside.

[3.3] Mr. Purohit, learned advocate has further contended that

even otherwise the order passed by the learned Single Judge is

not supported by cogent reasons and as such order deserves to

be quashed in the interest of justice. No other submissions has

been made.

C/LPA/138/2022 CAV JUDGMENT DATED: 22/08/2022

[4] As against aforesaid contention, Mr. K. M. Antani, learned

Assistant Government Pleader appearing on behalf of the State

while supporting the order passed by the learned Single Judge

has vehemently contended that a serious attempt has been

made to divert the land to the appellants at a throwaway price.

Undisputedly, the appellants being the legal heirs of original

tenant, had no vested right, since the purchase proposal which

had been given to the deceased Suraji Savaji way back in the

year 1960 which had not crystalised and the offer made by the

State has not been accepted and contract was not concluded.

Had it been the desire of Suraji Savaji to conclude the contract,

the purchase would have been effected, but same had remained

ineffective for which there is a specific entry made in the

revenue record by Entry No.5579 dated 15.03.1967 and as such

the land was rightly taken over by the State authority under

Section 32 P (4) of the Tenancy Act and for that reason also,

way back in the year 1988, the entry also came to be mutated by

Entry No.7984 dated 29.02.1988 and as such considering the

overall circumstances which are reflecting not only from the

order dated 25.08.2020 but also from the oral order of learned

C/LPA/138/2022 CAV JUDGMENT DATED: 22/08/2022

Single Judge dated 01.12.2021 no case appears to have been

made out and no error appears to have been committed by the

learned Single Judge while disposing of the writ petition. He

would contend that learned Single Judge while dismissing the

petition has given elaborate reasons as to why the writ

applicants have not made out any case and therefore, in the

absence of any error being committed by the learned Single

Judge, Letters Patent Appeal may not be entertained and while

substantiating his submission the learned Assistant Government

Pleader has not only drawn the attention to the impugned

original order dated 25.08.2020 but also to the observations

made by the learned Single Judge in the oral impugned order

dated 01.12.2021 and thereby he has prayed for dismissal of the

Letters Patent Appeal.

[5] Having heard the learned advocates appearing for the

parties and having gone through the material placed on record,

it appears that while dismissing the petition the learned Single

Judge has given elaborate reasons and has extensively

considered the factual background which is in consonance with

C/LPA/138/2022 CAV JUDGMENT DATED: 22/08/2022

the relevant provisions of the Tenancy Act and as such the order

passed after considering all the relevant material and

submissions, we find no error having been committed by the

learned Single Judge nor said order would reflect any perversity

or material irregularity which may permit us to substitute said

finding.

[6] We notice from the chronology of events that appellants -

original petitioners have not made out any case to justify their

stand and to challenge the original order of remand passed by

the learned SSRD. Perusal of the impugned original order

discloses that to undertake a fresh exercise of process in

consonance with Section 32 P (2) (C) of the Tenancy Act after

broadly publishing and informing all the respective legal heirs

and after hearing all the parties and to make a close scrutiny of

relevant record as well as circulars and the prevailing policy of

such allotment order of remand came to be passed. Hence,

basically an order of remand was under challenge before the

learned Single Judge. It is settled position of law that normally

against an order of remand extraordinary jurisdiction would not

C/LPA/138/2022 CAV JUDGMENT DATED: 22/08/2022

be exercised particularly when a balance is struck by the

learned SSRD while passing the order dated 25.08.2020 and as

such the learned Single Judge has rightly dismissed the petition

by observing the relevant circumstances which are related to

the controversy.

[7] From the reading of the order of learned Single Judge's

order, we find that land situated at Village : Uvarsad, which is

between Ahmedabad and Gandhinagar is admeasuring 7790 sq.

mtrs. which came to be disposed of at a throwaway price of

Rs.1160/- though the value of the land runs into crores of

rupees. Apart from that, what has been ordered by the

authority below was also justifiably considered by the learned

Single Judge that a fresh process in transparent manner

deserves to be undertaken and as such we see no reason to

interfere with the well-reasoned order passed by the learned

Single Judge.

[8] While coming to this conclusion, we are also of the view

that in the absence of any perversity or material irregularity

sitting in an appellate jurisdiction the finding so recorded would

C/LPA/138/2022 CAV JUDGMENT DATED: 22/08/2022

not be substituted under normal circumstance and the

proposition on that issue is on the contrary namely to that

extent that even if another view is possible then also there

should be no interference unless the order is manifestly

perverse or irregular. Hence, we are of the opinion that no such

contingency is reflecting from the impugned oral order and

appellants have not made out any case to call for any

interference.

[9] The Hon'ble Apex Court in the case of Management of

Narendra & Company Private Limited versus Workmen of

Narendra & Company reported in (2016) 3 SCC 340 has

clearly propounded in paragraph No.5 that: -

"Be that as it may, in an intra-court appeal, on a finding of fact, unless the appellate Bench reaches a conclusion that the finding of the Single Bench is perverse, it shall not disturb the same. Merely because another view or a better view is possible, there should be no interference with or disturbance of the order passed by the Single Judge, unless both sides agree for a fairer approach on relief."

C/LPA/138/2022 CAV JUDGMENT DATED: 22/08/2022

[10] As such we are of the view that in fulforce said proposition

deserves to be applied here especially when the learned Single

Judge while examining an order of remand has taken a

particular view not to interfere. We are of the view that appeal

lacks merit and same is dismissed hereby. No order as to costs.

Notice is discharged.

[11] All pending applications, if any, stand consigned to

records.

Sd/-

(ARAVIND KUMAR, C.J.)

Sd/-

(ASHUTOSH J. SHASTRI, J.)

DHARMENDRA KUMAR