State Of Gujarat vs Vishnoi Bharmal Hemaji
2023 Latest Caselaw 2738 Guj

     C/SCA/3494/2011                                JUDGMENT DATED: 03/04/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 3494 of 2011

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI                                Sd/-
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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 ?

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                          STATE OF GUJARAT & 1 other(s)
                                    Versus
                       VISHNOI BHARMAL HEMAJI & 6 other(s)
==========================================================
Appearance:
MS JYOTI BHATT, AGP for the Petitioner(s) No. 1,2
MR DHAVAL M BAROT(2723) for the Respondent(s) No. 1,2,3,4,5,7
RULE SERVED for the Respondent(s) No. 6,7
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    CORAM:HONOURABLE MR. JUSTICE ASHUTOSH SHASTRI

                                Date : 03/04/2023

                                ORAL JUDGMENT

1. By way of this petition under Articles 226 and 227 of the

Constitution of India, State authorities have challenged the

legality and validity of the orders passed by the revenue

authorities below and to be precise, prayed for following

reliefs:-

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a. Your Lordship may be pleased to allow this Special Civil Application.

b. Your Lordship may be pleased to issue writ of certiorari or any other writ appropriate writ order or directions directing, by quashing and setting aside an order passed by the Gujarat Revenue Tribunal, Ahmedabad in Revision Application No. TEN.B.A. 67 of 2001 dated 27th February, 2009 and restore, allow and confirm the order passed in Appeal No. 2 of 2000 decided by the Collector who confirm the Tenancy Case No. 228 of 1997 decided by the Learned Mamlatdar & ALT on 29.05.1999.

c. Pending hearing, admission of the present petition, your lordship may be pleased to grant stay of execution, implementation and operation of the order passed by the Gujarat Revenue Tribunal, Ahmedabad in Revision Application No.TEN.BA.67 of 2001 dated 27th February 2009.

d. Your Lordship may be pleased to condone the delay in preferring the present Special Civil Application.

e. Be pleased to grant any other and further relief in the interest of justice.

2. The background of facts which has been mentioned in the

petition is that respondents herein are agriculturists of the land

situated at village Nenava, Taluka Dhanera and holding Survey

No.31 admeasuring 6 Acres and 29 Gunthas and Survey No.329

admeasuring 26 Acres and 22 Gunthas. Brother of respondent

Vishnoi Vardha Harji had purchased the land from one Mahadev

Sonabhai Patel and to this effect, entry has been effected in the

revenue record being entry No.442 mutated on 22.6.1976. It

was found by an authority that purchaser happened to be a non-

agriculturist and therefore, entry came to be rejected. But later

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on, on 30.7.1980, emtry No.529 was mutated in the name of

Vardha Harji and Hema Harji. It is the case of petitioners that

Hema Harji expired, as a result of which legal heirs were

mutated vide entry No.712 dated 6.10.1987 and names of

Bharmal Hema, Babu Hema, Bhagwan Hema and Jiva Hema

were mutated and names of present respondent Nos.2 to 6 have

also been entered in the revenue record by entry No.858 made

on 15.1.1991. According to petitioners, by recognizing only two

persons, i.e. Vishnoi Vardha Harji and Hema Harji as

agricultural labourers, their names were mutated in the revenue

record after complying the proceedings under Section 63, but

other respondents were not agriculturists and as such finding

said situation, notice was issued under Section 84(C) of

Tenancy Act upon present respondents. Hearing had taken

place before learned Mamlatdar & ALT pursuant to said notice

in which, Tenancy Case No.228 of 1997 was registered and

came to be decided by order dated 29.5.1999. Learned

Mamlatdar & ALT had decided that respondents are not

agriculturists and as such land was ordered to be vested with

Government since there appears to be violation of Section 63 of

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the Bombay Tenancy Act.

3. Feeling aggrieved by and dissatisfied with said order,

present respondents filed an appeal before learned Deputy

Collector, being Appeal No.2 of 2000 and after hearing both the

sides, order passed by learned Mamlatdar & ALT came to be

confirmed. Said order passed by learned Deputy Collector was

made subject matter of challenge before Gujarat Revenue

Tribunal by preferring Revision Application No.TEN/BA/67 of

2000, which after hearing the parties came to be allowed vide

order dated 27.2.2009 and the Revisional Authority was pleased

to set aside the orders passed by learned Mamlatdar & ALT as

well as learned Deputy Collector and it is this order which has

been passed by learned Gujarat Revenue Tribunal is made the

subject matter of present petition under Article 226 of the

Constitution of India.

4. Learned Assistant Government Pleader Ms. Jyoti Bhatt

appearing on behalf of petitioners has vehemently contended

that order passed by learned Gujarat Revenue Tribunal is not in

consonance with relevant record and not on the basis of

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appreciation of material as well as not in consonance with

relevant proposition and as such, concurrent orders which have

been passed by authorities below have erroneously been

disturbed by learned Tribunal and as such, serious error is

committed which can call for interference of this Court under

Article 226 of the Constitution of India.

5. Learner Assistant Government Pleader has further

submitted that reasons which are assigned by learned Tribunal

are not germane to law and despite the fact that two brothers

were held to be agricultural labourers by revenue entries, but

other brothers who were not agriculturists have also been

considered and erroneous finding has been arrived at and as

such, order passed by learned Tribunal deserves to be

corrected.

6. Learned Assistant Government Pleader Mr. Jyoti Bhatt has

submitted that so far as delay aspect is concerned, since there is

serious infirmity from inception, technicality ought not to have

been considered by learned Tribunal while passing impugned

order and as such under these multiple contentions, Ms. Bhatt

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has requested to grant the reliefs as prayed for in the petition.

7. As against this, learned advocate Mr. Dhaval Barot

appearing on behalf of contesting respondents has supported

the order passed by learned Tribunal and has submitted that a

well-reasoned order is passed which may not be interfered with

in absence of any distinguishable material and as such has

requested to dismiss the petition.

8. Having heard learned advocates appearing for the parties

and having gone through the material on record, precisely the

order which has been passed by learned Gujarat Revenue

Tribunal, it is appearing to be a well-reasoned order after

considering few material aspects with regard to status of

agriculturists of present respondents. Not only entry No.712 has

been considered, but entry No.858 as well as relevant entry

which has been made in succession have also been considered.

Learned Tribunal has considered entry No.858 by virtue of

which names of other brothers have been incorporated in the

revenue record and has been certified way back in 1991,

whereas notice has undisputedly been issued after unreasonable

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period of time and as such after considering all all

circumstances, learned Tribunal has passed order which cannot

be said to be perverse in any form.

9. Since the Court has considered the reasons which are

assigned by learned Tribunal, the Court deems it proper to

proper to extract relevant portion of conclusion arrived at by

learned Tribunal and as such, paragraph-5, which is reflecting

in the order, is reproduced hereunder:-

5. I have perused the record of both the lower courts below and considered the arguments put forward by both the learned advocates. It appears that when two brothers purchased the suit lands in 1974, they were considered as agricultural labourers and that is why provisions of Sec. 63 of the Act were found to be fulfilled in their case. It is common knowledge that in rural areas, the transactions get registered in the names of the elder male members. If they have been found to be agriculturists, it cannot be said that the other brothers are not agriculturists unless there is some contrary evidence on record. I do not find any such evidence on record and, therefore, I am inclined to believe the submission of Shri Trivedi. So far as the point of limitation is concerned, there is much substance in the submissions of Shri Trivedi. Entry No. 712 by which the names of 4 heirs of Hemapi Harji have been entered was effected on 6/10/1987. Even the entry No. 858, by which the names of other brothers 1.e. present applicants No.2 to 6 have been entered, was also effected on 15/1/1991 and certified on 17/2/1991. Issuance of notice on 21/11/1998 regarding the alleged breach of Sec. 63 is late by almost nearly 7.1/2 years, such long delay cannot be supported as held in 202 (1) GLR 410, 202 Ahmedabad Law Reporter 406, 202 (1) GLR 276 and 2000(3) GLH 551. When the inquiry has been commenced very much beyond the reasonable time, the applicants have to be given the benefit of the rulings cited as well as many other rulings of the Hon. High Court and Hon. Supreme Court that suo motu proceddings under Sec. 84C, or for that matter under any

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section, have to be held within reasonable time and unexplained delay would be fatal to the proceedings. There is one more ground which is unexplained in the order of the Mamlatdar & ALT as well as Assistant Collector. When the names of four heirs of Hemaji Harji have been entered by entry No. 712, it is not understood as to why the name of only one heir 1.e. present applicant No.1 has been mentioned in the notice leaving aside the three other heirs of Hemaji Harji. Can it be taken to mean that those three heirs who are now co-owners of the suit lands are agriculturists within the meaning of section 63 of the Act?

10. At the time when hearing had taken place, learned

Assistant Government Pleader was not in a position to question

this conclusion on any other distinguishable material and has

not been confronted with situation that entry incorporated in

the names other contesting respondents was not only made but

appears to have been certified on 17.2.1991 and notice has been

issued after a period of 7 ½ years and as such, for initiation of

proceedings, it appears that authorities have taken

unreasonable time without there being any material on record.

Hence, at this stage, the Court is of the opinion that there

appears to be no error committed by learned Tribunal in

exercising jurisdiction mainly on two counts; viz. (1) that order

is passed after considering relevant entries and in consonance

with provisions contained under the Tenancy Act and (2) that

for initiation of steps after more than a period of 7 ½ years.

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11. At this stage, the Court is apprised of the proposition of

law on such issue by tendering an order dated 12.1.2023 passed

by Coordinate Bench of this Court by learned advocate Mr.

Barot wherein it has been propounded that delay in exercising

jurisdiction would fatal to the case and that has also been

considered by learned Tribunal and as such, the Court see no

error committed by learned Tribunal which may call for any

interference. Since the Court has considered this decision of the

Coordinate Bench of this Court, relevant observations contained

in paragraphs 7 and 8 thereof are reproduced hereunder:-

7. The facts which are established from records are that by the impugned order passed by the Tribunal dated 06.12.2005, the concurrent findings of the Mamlatdar as well as Deputy Collector holding the petitioners as agriculturists have been set aside. It is also not in dispute that the proceedings under Section 84(C) of the Tenancy Act have been initiated after considerable delay of more than 8 years as the sale transaction is of 1985 and the proceedings are initiated in the year 1993 that too at the behest of the private respondents who had sold the land to the petitioners.

9. In the decision of the Division Bench in the case of Labhubhai Veljibhai Gajera vs. Secretary (Appeals), Revenue Dept. Gujrat State and Ors., 2011 (1) G.L.R. 279, the proceedings under the Bombay Prevention of Fragmentation and Consolidation of Holdings Act, 1947, which have been initiated after more than three years are set aside. By now, it is no more res integra that the power conferred under the provisions of Section 84(C) of the Tenancy Act is required to be exercised within a reasonable period. Hence, the impugned order of the Tribunal is required to be quashed and set aside since the same is passed against the well settled proposition of law.

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12. Additionally, the Court is also of the opinion that in the

absence of any perversity or material irregularity, extraordinary

jurisdiction cannot be exercised just to substitute the conclusion

arrived by an authority below. Here, no distinguishable material

is placed before the Court to question the conclusion arrived at

by learned Tribunal and further, a possible view also may not be

substituted by invoking extraordinary jurisdiction and as such

for aforesaid multiple reasons, the Court is of clear opinion that

no case is made out by petitioners.

13. In view of the aforesaid discussion and in view of the

proposition of law laid down by Hon'ble the Apex Court in

respect of scope of Letters Patent Appeal in case of

Management of Narendra & Company Private Limited v.

Workmen of Narendra & Company reported in (2016) 3

SCC 340, Court is of the opinion that no case made out. Hence,

the Court deems it proper to quote relevant observations

contained in paragraph 5 thereof, which reads as under:

"5. Once the learned Single Judge having seen the records had come to the conclusion that the industry was not functioning after January 1995, there is no justification in entering a

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different finding without any further material before the Division Bench. The Appellate Bench ought to have noticed that the statement of MW 3 is itself part of the evidence before the Labour Court. 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."

14. Hence, petition being merit-less, deserves to be dismissed.

It is accordingly DISMISSED with no order as to costs. Rule is

discharged.

Sd/-

(ASHUTOSH SHASTRI, J) OMKAR