Babubhai Chotabhai Patel- Karta ... vs Neelaben Daughter Of Hiralal ...
2022 Latest Caselaw 145 Guj

     C/SCA/6589/2014                                   ORDER DATED: 05/01/2022



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 6589 of 2014

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     BABUBHAI CHOTABHAI PATEL- KARTA AND LEGAL HEIR
                         Versus
 NEELABEN DAUGHTER OF HIRALAL ALIAS BALKRISHNA SHAH & 10
                         other(s)
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Appearance:
MR NAYAN D PAREKH(5010) for the Petitioner(s) No. 1
MR NIKUNJ KANARA, AGP for the Respondent(s) No. 5,6,7
MR CHIRAG B PATEL(3679) for the Respondent(s) No. 1,10,2,8,9
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 CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                                 Date : 05/01/2022

                                  ORAL ORDER

1. By way of this petition, the petitioner has challenged the order passed by the Gujarat Revenue Tribunal dated 10.10.2013 in Revision Application Nos.TEN BA/ 141 of 1998 and TEN / BA / 142 / 1998 and has also challenged the judgment and order dated 06.02.1998 passed by the Deputy Collector, Kheda in Tenancy Appeal No.380 of 1996.

2. Heard learned advocate Mr.Nayan D. Parekh for the petitioner, learned Assistant Government Pleader Mr.Nikunj Kanara and learned advocate Mr.Chirag Patel for the private respondent nos.1 and 2 and 8 to 10.

3. Brief facts giving rise to the filing of the present petition are stated as under:

3.1 It is the case of the petitioner that ancestors of the

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petitioner were the tenants of ancestors of Respondent Nos.1 and 2 since the year 1941-42 in respect of the land bearing Block No.257 situated at Mouje : Jogan, Tal.Petlad, Dist.Anand ademasuring about 5 hectors 62 Are and 52 sq mtr. In fact as per the petition, there were several parts of the land bearing survey nos.152, 153, 154 and 155 and out of which block no.257 was created.

3.2 It is the case of the petitioner that ancestors of the petitioners were cultivating the aforesaid land and possession of the land was with the ancestors of the petitioners. The land was being cultivated by the petitioner on crop-share basis.

3.3 In the year 1988, the proceedings under Section 32(G) read with Section 70(b) of the Gujarat Tenancy and Agricultural Lands Act, 1948 ('Tenancy Act', for short) were carried out which was numbered as Tenancy Case No.10 of 1988. However, learned advocate Mr.Parekh, on inquiring, submitted that, in the petition, it is wrongly mentioned as proceedings under section 32(C) instead of 32(G) of the Tenancy Act.

3.4 Pursuant to the aforesaid proceedings in Tenancy Case No.10 of 1988, vide order dated 22.06.1993, Ashabhai Chhotabhai Patel, - the brother of the petitioner was declared as tenant and was offered land by determining the price under section 32(G) of the Tenancy Act.

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3.5 Thereafter proceedings under Section 32(G) of the Tenancy Act were carried out and the same was numbered as Tenancy Case No.18 of 1996 and in that proceedings, Mamlatdar & ALT, Petlad vide order dated 28.08.1996 determined the price of the land and directed the petitioner to deposit an amount of Rs.63.684.20 ps towards the price of the land and declared that the land would be considered as new tenure land with the restrictions of Section 43 of the Tenancy Act.

3.6 Respondent Nos.1 and 2, who happened to be original owners of the land, challenged the aforesaid order dated 22.06.1993 passed in Tenancy Case No.10 of 1988 in the proceedings under Section 70(b) read with Section 32(G) of the Tenancy Act, by way of preferring an appeal being Tenancy Appeal No.380 of 1996 under Section 74 of the Tenancy Act before the Deputy Collector (Land Reforms), Kheda.

3.7 The Deputy Collector (Land Reforms), Kheda vide order dated 06.02.1998 allowed the appeal preferred by the Respondent Nos.1 and 2 and quashed and set aside the order passed by the Mamlatdar & ALT, Petlad in Tenancy Case No.10 of 1988 dated 22.06.1993. While quashing and setting aside the order passed by the Mamlatdar & ALT, Petlad, the Deputy Collector, Kheda observed that the order dated 22.06.1993 was not passed on the basis of any evidence but was passed on the basis

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of oral statement made by the present petitioner. The Deputy Collector also observed the fact that aforesaid order was passed as the petitioner had suppressed the fact before the Mamlatdar & ALT, Petlad to the effect that the possession of the land was surrendered by the petitioner on 15.06.1955 and the legal heirs of deceased Chhotabhai Ranchhodbhai, who claimed to be the tenant in respect of the land in question, was not in possession of the land. In fact, in the past, tenancy proceedings under Section 70(nb) being Tenancy Case No.12 of 1988 was decided on 07.01.1989 and in that tenancy case the present petitioner could not establish that the possession in respect of the land in question was with him. Against the said order, the Tenancy Appeal being No.64 of 1989 was also preferred before the Deputy Collector, Kheda and against which Revision Application No.288 of 1990 was also preferred by the petitioner before the Gujarat Revenue Tribunal with a prayer to grant interim relief in favour of the petitioner. However, that application was also rejected by the Gujarat Revenue Tribunal. All these facts were suppressed by the present petitioner before the Mamlatdar & ALT, Petlad.

3.8 The Deputy Collector in his order observed that in the past in Tenancy Case No.2 of 1976, which was decided on 29.12.1977, the petitioner could not establish that he or his ancestors were in possession of the land in question on 15.06.1955. Even Appeal preferred against the aforesaid order being Tenancy Appeal Nos.475 and

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476 of 1988 were also rejected vide order dated 04.03.1990 against which no revision was filed.

3.9 The contention of the petitioner in respect of delay was considered by the Deputy Collector, Kheda, however it also did not find acceptance and ultimately the Appeal preferred by the Respondent Nos.1 and 2 was allowed on 06.02.1998.

3.10 Against the aforesaid order the petitioner preferred revision application under Section 76 of the Act before the Gujarat Revenue Tribunal being Revision Application Nos. TEN / BA/ 141 of 1998 and TEN / BA / 142 of 1998. The Gujarat Revenue Tribunal vide order dated 10.10.2013 rejected the revision application preferred by the present petitioner and confirmed the order dated 06.02.1998 passed by the Deputy Collector (Land Reforms), Kheda in Tenancy Appeal No.380 of 1996.

3.11 Being aggrieved by and feeling dissatisfied with the aforesaid two orders, the petitioner has filed the present petition.

4. Heard learned advocate Mr.Nayan Parekh for the petitioner, learned Assistant Government Pleader Mr.Nikunj Kanara for the respondent State and learned advocate Mr.Chirag Patel for the private respondents i.e. Respondent Nos.1, 2 and 8 to 10.

5.1 Learned advocate Mr.Parekh submitted that the

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petitioner was in possession of the land on tillers date. In fact, after arguing the matter for some time, pursuant to query by the Court, learned advocate Mr.Parekh requested the Court to grant some time for producing certain documents. However, considering the fact that petition is pending for admission since 2014 and all throughout the same has been adjourned for eight years after filing of the petition and after more than 30 years after proceedings were started and considering the fact that original proceedings were of the year 1988, such request was rejected by this Court and Mr.Parekh was asked to address the Court on merits of the matter.

5.2 He submitted that as per the order dated 22.06.1993, the petitioner was declared tenant and pursuant to that order the petitioner has paid the price towards the land in question and certificate to that effect also was issued in favour of the petitioner on 05.05.1993. Mr.Parekh submitted that the order dated 22.06.1993, which was in favour of the petitioner was subsequently quashed by the Deputy Collector in Tenancy Case No.380 of 1996 vide order dated 06.02.1998. The order dated 22.06.1993 which was passed after considering the material on record and after due deliberation and, therefore, both the authorities i.e. Deputy Collector and Gujarat Revenue Tribunal have committed the grave error by quashing those orders.

5.3 Learned advocate Mr.Parekh submitted that the

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authority i.e. Mamlatdar & ALT passed order dated 22.06.1993 on merits of the matter after considering the evidence on record and, therefore, it was not open for the appellate authority to re-appreciate the evidence to quash the order passed by the Mamlatdar & ALT. He thereafter submitted that in view of the fact that purchase price has been paid by the petitioner pursuant to the order dated 20.08.1996 whereby the price of the land was determined as per Section 32(G) of the Tenancy Act and as price has already been paid by the petitioner, certificate is issued in favour of the petitioner and equity is created in favour of petitioner, it is not open for the appellate authority to quash the order passed by the Mamlatdar & ALT.

5.4 Thereafter learned advocate Mr.Parekh submitted that as far as aspect of the possession is concerned, the question of possession can be gone into only by the Civil Court as the Civil Court is competent Court to determine the possession of the party and Deputy Collector as well as Gujarat Revenue Tribunal being quashi judicial authorities could not have gone into question in respect of possession of the land.

5.5 By making above submission, learned advocate Mr.Parekh submitted that in view of above, the impugned orders are bad as per law and prayed for quashing and setting aside the aforesaid orders.

6.1 Learned advocate Mr.Chirag Patel for the private

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parties i.e. Respondent Nos.1, 2 and 8 to 10 submitted that the first order i.e. 22.06.1993 passed by the Mamlatdar & ALT, Petlad in tenancy proceedings being Case No.10 of 1988 was passed without giving proper opportunity to the Respondent Nos.1 and 2 as sufficient notice was not issued. He pointed out from the observations made by the Deputy Collector, Kheda in order dated 06.02.1998 in Appeal No.380 of 1996 whereby the Deputy Collector, Kheda has elaborately discussed about the suppression made by the present petitioner and has also taken into consideration the manner in which the proceedings under Section 70(b) of the Act were conducted by the Mamlatdar & ALT, Petlad.

6.2 Learned advocate Mr.Chirag Patel submitted that only on the basis of oral statement of the petitioner it was believed by Mamlatdar & ALT, Petlad that the possession of the land in question was with the petitioner and they were tenants in question. No other documentary evidences were produced on record or taken into consideration by the Mamlatdar & ALT, Petlad and at no point of time all throughout in any of the proceeding, the petitioner had ever produced any relevant document to establish possession over the land i.e. those documents could be a receipt of land revenue paid by the petitioner or about the purchase of fertilizers etc or about the receipt given by the land owner as the petitioner claimed that he used to cultivate the land on crop-sharing basis.

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No independent witness was ever examined by the Mamlatdar&ALT, Petlad and, therefore, Deputy Collector, Kheda has rightly quashed the order passed by the Mamlatdar&ALT. Mr.Patel drew attention of this Court to the observations made by the Deputy Collector, Kheda in respect of suppression by the petitioner and pointed out that in the past in respect of tenancy proceedings, it was already established that the petitioner was not in possession of the land in question on 15.06.1955. Those proceedings have already attained finality. Even thereafter in the subsequent proceedings which has reached upto this Court, the petitioner could not produce any evidence on record before any authority to indicate that petitioner was in possession of the land in question on tillers date and, therefore, as petitioner was not in possession of the land in question on the tillers date nor he could establish that petitioner was cultivating the land in question, the orders passed by the Deputy Collector, Kheda and Gujarat Revenue Tribunal are the orders which cannot be said to be bad in law and, therefore, he prayed dismissal of present petition.

6.3 Mr.Patel further submitted that all throughout both the authorities i.e. Deputy Collector as well as Gujarat Revenue Tribunal have observed that petitioner was aware about the fact that land in question was already sold to the respondents i.e. respondent nos.8 to 10 in the year 1989. He drew attention of this Court to the fact that

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petitioner himself had initiated RTS proceedings against the respondent nos.8 to 10 and order passed by the Deputy Collector, Petlad in RTS Proceedings being No.87 of 1998 dated 28.01.1989 is also produced on record on page:108 which indicates that petitioner was aware about the fact that land is already sold to Respondent Nos.8 to 10 yet petitioner did not join them as party which is recorded by both the authorities i.e. Appellate Authority as well as Revenue Authority. For the first time, the petitioner joined respondent nos.8 to 10 as party respondents in the year 2014 pursuant to the order passed by the coordinate Bench of this Court which would show the conduct of the petitioner that all throughout the petitioner wanted to have the orders without joining proper party or behind the back of the private respondents or any interested person in the land in question.

6.4 As far as submissions made by learned advocate Mr.Parekh in respect of possession of land is concerned, learned advocate Mr.Chirag Patel submitted that none of the revenue authorities have tried to determine possession of the land in question but have relied upon the documents in the form of orders passed in earlier tenancy proceedings whereby it was held that petitioner was not in possession and in fact he had surrendered the possession of the land in question even in the year 1947 and, therefore, the petitioner cannot say that revenue

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authorities have tried to determine the question as regard the possession of the land in question. The petitioner was never enjoying possession of the land in question after the year 1947 and though the revenue authorities had given specific finding in that regard, at no point of time any evidence or order passed by the revenue authorities were challenged by the petitioner and those findings have become final and, therefore, on the basis of those findings revenue authorities have come to the conclusion in this round of litigation that petitioner was not in possession and has surrendered the possession in the year 1947 itself and, therefore, it can not be said that the quashi judicial authorities have tried to determine the issue regarding possession of the land in question.

7.1 Learned Assistant Government Pleader Mr.Nikunj Kanara submitted that both the authorities i.e. Deputy Collector as well as the Gujarat Revenue Tribunal passed the orders in accordance with law and, therefore, those orders may not be disturbed and as such both the learned advocate Mr.Chirag Patel and learned Assistant Government Pleader Mr.Nikunj Kanara prayed for dismissal of the petition.

7.2 In rejoinder, learned advocate Mr.Nayan Parekh submitted that non-joinder of Respondent Nos.8 to 10 was not a deliberate action and with the permission of this Court respondent nos.8 to 10 were joined as party

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respondents. He relied upon the judgment in case of Bhikhabhai A. Jadav and ors. vs. Vaidya Gamanlal reported in 2001 (1) GLR 663 and submitted that this Court has held in the aforesaid judgment that if a man was in possession of agricultural land even at any time between the year 15.06.1955 and 03.03.1973 and the procedure laid down in Section 15 of the Tenancy Act has not been gone, man would be tenant and entitled to purchase the land. By citing aforesaid judgment, Mr.Parekh submitted that as in the instant case procedure, as stated under Section 15 is not followed, the petitioner has purchased the land in question after paying price determined as per section 32(G) of the Act, authorities have committed error by quashing and setting aside the order dated 22.06.1993.

7.3 Mr.Parekh submitted that the appellate authority was required to initiate separate inquiry rather passing the order on examining all the documents.

No other submissions were made by either party.

8.1 Heard learned advocates for the respective parties and examined the material on record.

8.2 On perusal of record, it transpires that present petitioner did not produce any material before the Mamlatdar & ALT, Petlad in Tenancy Case No.10 of 1988 which was decided on 22.06.1993 by Mamlatdar & ALT,

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Petlad and whereby the petitioner was declared tenant in the proceedings under Section 70(b) of the Act read with Section 32B of the Tenancy Act. In fact, the perusal of the order dated 22.06.1993 reveals that no submissions of either party in detail were discussed by the Mamlatdar & ALT, Petlad and without assigning any reason vide order dated 22.06.1993, the petitioner was declared tenant in respect of the land in question. The petitioner thereafter also either before the Deputy Collector or before the Revisional Authority i.e. Gujarat Revenue Tribunal could not produce any material to indicate that the petitioner was enjoying possession of the land in question between 15.06.1955 and 03.03.1973. In absence of there being any material to indicate that either the petitioner was in possession of the land in question or that the petitioner was cultivating the land in question, the Mamlatdar & ALT, Petlad ought not to have declared the petitioner as tenant and, therefore, aforesaid aspect was rightly taken into consideration while allowing appeal under Section 74 by the Deputy Collector (Land Reforms), Petlad. In fact, the Deputy Collector (Land Reforms) Petlad also allowed the appeal preferred by the present Respondent Nos.1 and 2 by considering suppression of material fact by the petitioner. The petitioner had earlier preferred tenancy Proceedings under Section 70(nb) of the Tenancy Act being Case No.12 of 1988 and aforesaid proceedings were decided against the petitioner as the petitioner could not establish his possession over the land in

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question and it was specifically stated in that order that the third party i.e. Respondent Nos.8 to 10 are enjoying possession of the land in question. The application for stay was decided by the order dated 07.01.1989, however, aforesaid fact was suppressed before the Mamlatdar & ALT. Similarly, the petitioner has also suppressed the fact about the proceedings being Tenancy Case No.2 of 1976 Jogan before the Mamlatdar & ALT, Petlad which was also initiated by the present petitioner and said application was disposed on 29.12.1977 by Mamlatdar & ALT, Petlad holding that possession of the land in question is with the respondent since the year 1954-55.

8.2 Therefore, the Deputy Collector rightly allowed the appeal preferred by the present Respondent Nos.1 and 2 by considering the merits of the matter as well as on the ground of suppression of the fact and the aforesaid order has rightly been upheld by confirming the order passed by the Deputy Collector, Kheda in Tenancy Appeal No.380 of 1996 dated 06.02.1998 by the Gujarat Revenue Tribunal vide order dated 10.10.2013 in Revision Application Nos.TEN / BA / 141 of 1998 and TEN / BA / 142 of 1998.

8.3 Today, even during the course of argument learned Parekh could not point out from the order as to which illegality is committed by the authorities while allowing the appeal and rejecting the revision application. As far

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as submission of learned advocate Mr.Parekh in respect of powers of Deputy Collector is concerned, it was contended by Mr.Parekh that without ordering a separate inquiry, the Deputy Collector could not have come to the conclusion that the possession of the land in question is not with the petitioner. In that regard, perusal of order passed by the Deputy Collector clearly indicates that Deputy Collector has merely considered earlier order passed in earlier litigation whereby it is categorically stated that possession of the land in question was not with the petitioner since 1954-55 by relying upon the order dated 29.12.1977 passed in Tenancy Case No.2 of 1976 Jogan by Mamlatdar & ALT, Petlad. Hence, when the documentary evidence has been relied upon the Deputy Collector, it cannot be said that he has determined the question of possession of the land without conducting inquiry and, therefore, such contention cannot be accepted. However, learned advocate Mr.Parekh could not answer to the aspect of suppression except contending that there is no deliberation intention on the part of the petitioner.

8.4 As far as contention of learned advocate Mr.Parekh in respect of the fact that question of possession was required to be determined by the Civil Court is concerned, as stated in forgoing paras, neither the Deputy Collector, Kheda nor the Gujarat Revenue Tribunal has decided the question of possession. All that

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both the authorities have done is that they have made reference about the earlier order passed by the quashi judicial authority whereby it is categorically stated that the possession of the land in question is not with the petitioner. Those findings having not been challenged by the petitioner and have remained as it is. Therefore, reference was made and those judgments or orders were passed by the Deputy Collector as well as Gujarat Revenue Tribunal and, therefore, it can nnot be said that they have encroached upon the jurisdiction of Civil Court or acted beyond jurisdiction.

8.5 In view of above, I do not find any infirmity either in the order passed by the Deputy Collector, Kheda in Tenancy Appeal No.380 of 1996 dated 06.02.1998 or in the order passed by the Gujarat Revenue Tribunal in Revision Application Nos. TEN / BA/ 141 of 1998 and TEN / BA / 142 of 1998 dated 10.10.2013, present petition requires to be dismissed. It is accordingly dismissed. Notice is discharged. No order as to costs.

(NIRZAR S. DESAI,J) MISHRA AMIT V.