Vaghela Popatbhai Chhaganbhai vs The Mamlatdar And Alt
2023 Latest Caselaw 3084 Guj

     C/LPA/17/2022                         ORDER DATED: 20/04/2023




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/LETTERS PATENT APPEAL NO. 17 of 2022
        In R/SPECIAL CIVIL APPLICATION NO. 16874 of 2019
                                With
           CIVIL APPLICATION (FOR STAY) NO. 1 of 2021
            In R/LETTERS PATENT APPEAL NO. 17 of 2022
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                 VAGHELA POPATBHAI CHHAGANBHAI
                               Versus
                     THE MAMLATDAR AND ALT
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Appearance:
MR AN PATEL(597) for the Appellant(s) No. 1
MS SHRANJUL SHAH, AGP for the Respondent(s) No. 1,2,3,4
MR TATTVAM K PATEL(5455) for the Respondent(s) No. 5
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  CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
          A.J.DESAI
          and
          HONOURABLE MR. JUSTICE BIREN VAISHNAV

                       Date : 20/04/2023
                         ORAL ORDER

(PER : HONOURABLE MR. JUSTICE BIREN VAISHNAV)

[1.0] This appeal challenges an oral order dated 24.08.2021 passed by the learned Single Judge in Special Civil Application No.16874 of 2019. By the aforesaid oral order, the learned Single Judge has refused to entertain the petition of the appellant wherein the appellant herein - original petitioner had prayed for a writ of mandamus or any appropriate writ, order or direction to the respondent - Tenancy Authorities to restore the possession and occupation of the tenancy of land of Survey Nos.46 and 47 of village Dumral and Survey No.215 of village Tundel and dwelling house in its original position to the petitioner from respondent Nos.5 and 6 and to fix the purchase price under Section 32G of

C/LPA/17/2022 ORDER DATED: 20/04/2023

the Gujarat Tenancy and Agricultural Land Act, 1948 (hereinafter referred to as "Tenancy Act") and declare the petitioner as a deemed tenant as on 01.04.1957.

[2.0] Mr. A.N. Patel, learned Counsel appearing for the petitioner would submit that the learned Single Judge erred in dismissing the petition on the ground of previous litigation which the petitioner had filed to hold that the question that the petitioner as a tenant could not now be reopened.

[3.0] Having heard learned Counsel Mr. A.N. Patel appearing for the appellant and having perused the order of the learned Single Judge it is borne that, this is a multiple round of litigation at the hands of the petitioner who had earlier approached this Court by filing Special Civil Application No.21372/2017. The order dated 29.11.2017 passed by the learned Single Judge needs to be set out inasmuch as it reproduces the prayers made in that petition, which read as under:

"A) Your Lordships may be pleased to issue a writ of mandamus or any other appropriate writ, order or direction to to the respondent tenancy authorities to restore the possession of the dwelling house and tenancy land of S. No.46, 47 of Village Dumral and S. No.215 of Village : Tundel and further directions to respondent authorities to extend the purchase price u/s.32M of the Tenancy Act and to hand over possession of the tenancy land as deemed purchasers to the petitioners from respondent no.5.

B) During the pendency and final disposal of this petition, this Hon'ble Court may be pleased to direct

C/LPA/17/2022 ORDER DATED: 20/04/2023

the respondent no.5 and the Tenancy Authorities to restore the dwelling house and tenancy land to the petitioners in the interest of justice.

C) ... ... ..."

[3.1] Apparently, the prayers as set out and the prayers made in the present petition are verbatim the same. The petition as is borne out from the order of the learned Single Judge was disposed of on the ground that the prayers made in the petition cannot be considered. The petitioner once again approached this Court by filing Special Civil Application No.10911/2016. By an order dated 26.12.2016, while dismissing the petition, the learned Single Judge, though the case of the appellant is that he is a protected tenant, observed that it was not open for the petitioner to contend the same and by an extensive order, dismissed the petition. It was the very case of the learned Counsel as is set out by him during the course of arguments here that he should have been declared as protected tenant which itself was considered and negatived by the learned Single Judge, which was confirmed in appeal being Letters Patent Appeal No.15406/2019 vide an order of the Division Bench dated 05.02.2019. Paragraph 12 of the order of the Division Bench reads as under:

"12. Learned counsel for the appellant is not able to show anything contrary to the aforesaid, whereas having failed before the Mamlatdar and ALT, Deputy Collector and thereafter observed before by this the

C/LPA/17/2022 ORDER DATED: 20/04/2023

Court, learned the Single issue, Judge as rightly has attained finality. This Court has reason to believe that the facts which are suppressed by the appellant were not only material but vital and the appellant was well aware about the same, which were suppressed with the purpose to misdirect and misguide this Court. We, therefore, find that, there is no error committed by the learned Single Judge, which requires interference of this Court in the present appeal and therefore, the appeal being merit less, deserves to be dismissed.

For the foregoing, present appeal is dismissed. The order dated 26.12.2016 passed by learned Single Judge in Special Civil Application No.1011/2016 is hereby confirmed on merits. However, in the facts of the case, the costs imposed by learned Single Judge is hereby quashed. Rest of the order remains as it is."

[3.2] Despite multiple findings in repeated rounds of litigation the prayer so made in the petition was therefore considered by the learned Single Judge and in the order under challenge, the learned Single Judge in paragraphs 12, 13 and 14 observed as under:

"12.The Categoric findings recorded in Para-8 indicates that the Authorities which have concurrently found on facts that the petitioner was not entitled to make claim under Section 32(1B), the reasons were found to be sound and no legal infirmity was found in the orders

C/LPA/17/2022 ORDER DATED: 20/04/2023

of the Tribunal as well as two subordinate Authorities.

This would indicate that claim of the petitioner under Section 32(1B) was not sustained. Challenge to the orders passed by the Single Judge in Special Civil Application No.12865 of 2008 was confirmed by order dated 09-04-2010 in Letters Patent Appeal No.2215 of 2009. The Division Bench has held in Para-7 as under:

"7. Learned counsel for the petitioner however, submitted that the petitioner is still in possession of the land. We do not see how the petitioner can still be in possession of the land and can still seek benefit of section 32(1B) of the Act. The said Section applies where a tenant who was in possession of the land on the appointed day has been dispossessed of such land by the landlord illegally. When benefit of Section 32(1B) is pressed in service, it pre-supposes that the petitioner would have lost possession."

13. It appears that this order has attained finality and this appears to be the firm attempt on the part of the petitioner to claim and assert his rights. Another attempt was made by filing Tenancy Case No.2 of 2009 and 24 of 2010 before the Mamlatdar and ALT, which also came to be rejected by a separate orders

C/LPA/17/2022 ORDER DATED: 20/04/2023

against which it is reported that Revision Applications are pending before the GRT. In that view of the matter, the Court is not inclined to make any observations so as to cause any impediment with the ongoing proceedings with the GRT. 14.However, it would be useful to refer to the detailed discussion of this Court vide Oral Judgment dated 26-12-2016 passed in Special Civil Application No.10911 of 2016, wherein all the arguments more or less advanced before this Court have been taken into consideration and the petition came to be rejected. This order was the subject matter of challenge in Letters Patent Appeal No.1504 of 2016, which confirmed the order of Single Judge. It would be appropriate to reproduce ultimate findings in Para-12, which is as under:

"12. Learned counsel for the appellant is not able to show anything contrary to the aforesaid, whereas having failed before the Mamlatdar and ALT, Deputy Collector and thereafter observed before by this the Court, learned the Single issue, Judge as rightly has attained finality. This Court has reason to believe that the facts which are suppressed by the appellant were not only material but vital and the appellant was well aware about the same, which were

C/LPA/17/2022 ORDER DATED: 20/04/2023

suppressed with the purpose to misdirect and misguide this Court. We, therefore, find that, there is no error committed by the learned Single Judge, which requires interference of this Court in the present appeal and therefore, the appeal being merit less, deserves to be dismissed."

[4.0] Having perused the order of the learned Single Judge and having found that in paragraph 17 when the liberty has been given by the learned Single Judge to approach the appropriate authorities to initiate appropriate proceedings with regard to the possession of the land in question, we find no error in the order of the learned Single Judge.

[5.0] Hence, present Letters Patent Appeal is dismissed.

In view of dismissal of Letters Patent Appeal, Civil Application (For Stay) also stands dismissed.

(A.J. DESAI, ACJ)

(BIREN VAISHNAV, J.)

Ajay