Gujarat High Court
Legal Heirs Of Basiruddin Punnumiya vs State Of Gujarat on 11 December, 2023
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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C/SCA/4201/2015 JUDGMENT DATED: 11/12/2023
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO.4201 of 2015
FOR APPROVAL AND SIGNATURE :
HONOURABLE MR. JUSTICE NIRZAR S. DESAI Sd/-
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1. Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2. To be referred to the Reporter or not ? YES
3. Whether their Lordships wish to see the fair NO
copy of the judgment ?
4. Whether this case involves a substantial NO
question of law as to the interpretation of the
constitution of India, 1950 or any order made
thereunder ?
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LEGAL HEIRS OF BASIRUDDIN PUNNUMIYA
Versus
STATE OF GUJARAT & 3 others
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Appearance :
MR. YOGENDRA THAKORE for the Petitioners.
MR JAY TRIVEDI, AGP for the Respondent Nos.1 to 3.
MR JAYANT P BHATT for the Respondent No.4.1
MR JEET J BHATT for the Respondents No.4.1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 11/12/2023
ORAL JUDGMENT
1. By way of this petition, the petitioner has challenged
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the order dated 3.2.2015 passed by the Gujarat Revenue Tribunal
in Review Application No.TEN/CA/1/14 as well as the order dated
5.12.2013 passed by Gujarat Revenue Tribunal in Revision
Application No.TEN/BA/199/2005. By order dated 5.12.2013, the
Tribunal allowed revision application of the respondent No.4 and
quashed and set aside order dated 20.11.2004 passed by the
Deputy Collector (Land Reforms) in Appeal No.11/12/03 as well as
order dated 7.10.1977 passed by the Additional Mamlatdar &
Krishi Panch, Mehsana in Ganot/32PP(Nagalpur) 164/77. By order
dated 3.2.2015, review application preferred by the petitioner
came to be rejected.
2. The petition is pending since the year 2015 for
admission and, therefore, with the consent of learned advocates
appearing for the respective parties, the matter is taken up for final
disposal today itself.
3. Rule. Mr. Jay Trivedi, learned Assistant Government
Pleader waives service of rule on behalf of respondent Nos.1 to 3
and Mr. Jeet J. Bhatt, learned advocate waives service of rule on
behalf of respondent No.4.1.
4. It is the case of the petitioners that father of the
petitioners was irrigating a land bearing Survey No.824/2
admeasuring Acres 0.30 Guntha situated in the sim of village
Nagalpur, Tal. & Dist. Mehsana in the capacity of a tenant. In the
proceedings being Tenancy Case No.32PP-Nagalpur-164-77, the
Mamlatdar & Krishi Panch vide order dated 7.10.1977 held the
petitioner to be tenant of the land in question on account of
admission of respondent No.4 - Bismillabibi d/o. Musamiya
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Jivanmiya wherein she has categorically admitted the possession
over the land in question by the present petitioners and it was
specifically admitted that the land revenue is being paid by the
present petitioners. Even in the Khed Hakk till 1976 - 77, the
possession of the land is recorded in the name of the present
petitioners.
4.1 On the basis of aforesaid facts, vide order dated
7.10.1977, determined the purchase price of the land in question at
Rs.316.25. The land was sold to the present petitioners with
restrictions of Section 43. The amount was directed to be paid in
two equal installments.
4.2 The aforesaid order dated 7.10.1977 was never
challenged by the respondent No.4.1 till 2003. However, according
to learned advocate Mr. Jeet Bhatt appearing for respondent No.4,
the respondent No.4 challenged the order dated 7.10.1977 before
the Special Secretary, Revenue Department (Appeals) which was
not the right forum according to learned advocate Mr. Jeet Bhatt.
However, the learned SSRD vide order dated 31.3.2004 rejected
the said revision application filed by the respondent No.4.1.
4.3 After unsuccessful attempt to challenge the order
passed in the year 1977, the respondent No.4.1 once again made
an attempt to challenge the said order before the Deputy Collector,
Mehsana by filing Appeal No.11-12/2003 under Section 74 of the
Tenancy Act. However, the said appeal came to be rejected by the
Deputy Collector, Land Reforms, Mehsana vide order dated
20.11.2004 taking note of the fact that there is long unexplained
delay in challenging the order dated 7.10.1977 and rejected the
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appeal of the respondent No.4.
4.4 Being further aggrieved, the respondent No.4 preferred
Revision Application No.TEN/BA/199/2005 before the Gujarat
Revenue Tribunal. However, surprisingly, the Tribunal completely
ignoring the aspect of delay, just by recording that as the SSRD has
wrongly considered the aspect of delay without considering the
merits of the matter, entertained the revision application and
quashed the order dated 20.11.2004 passed by the Deputy
Collector, Land Reforms, Mehsana in Appeal No.11-12/2003 as well
as order dated 7.10.1977 passed by the Mamlatdar & Krishi Panch,
Mehsana.
4.5 Being aggrieved with the order of the Tribunal, The
petitioners filed review application being TEN/CA/1/2014.
However, the aforesaid review application was also rejected vide
order dated 3.2.2015.
4.6 Hence, being aggrieved with the aforesaid orders of the
Tribunal, the petitioners have preferred the present petition.
5. Mr. Yogendra Thakore, learned advocate appearing for
the petitioners pointed out from the record that in the year 1977,
the petitioner was held tenant on account of admission of
respondent No.4 herself as she was alive then and also by
recording the fact that the petitioner is in possession of the land in
question, is cultivating the land and paying land revenue prior to
1976 - 1977. He further submitted that the aforesaid order was not
challenged till 2003 and even when the order was challenged in the
year 2003, initially, it was challenged before the SSRD and as the
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SSRD did not entertain the revision application of the respondent
No.4, after delay of more than 26 years, the respondent No.4
challenged the order dated 7.10.1977 in the year 2003 before the
Deputy Collector, Mehsana by filing Appeal No.11-12/2003 under
Section 74 of the Tenancy Act. The Deputy Collector rejected the
appeal of the respondent No.4 vide order dated 20.11.2004 on the
ground of delay.
5.1 Mr. Thakore further pointed out that the matter was
taken in revision by the respondent No.4 before the Gujarat
Revenue Tribunal and the Tribunal completely ignored the aspect
of delay of 26 years and proceeded on merit despite the fact that
equity was created in favour of the petitioners and the petitioners
are in possession of the land in question. However, the aspect of
possession is disputed by learned advocate Mr. Jeet Bhatt as
according to him, respondent No.4.1 is in possession of the land in
question.
5.2 Be that as it may, it was submitted by learned advocate
Mr. Thakore that unexplained delay of 26 years can be said to be a
long delay and such long delay could not have been ignored and
there must be specific finding on the aspect of delay by the
Tribunal and unless the Tribunal quashes the finding of the Deputy
Collector who has rejected the appeal on the ground of delay by
giving cogent reasons, it was not open for the Tribunal to consider
the matter on merits and, therefore, the Tribunal has committed an
error in entering into the merits of the case by allowing the
revision application and ignoring the aspect of delay of more than
26 years. He further submitted that the Tribunal has also
committed an error in rejecting the review application of the
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petitioners. He, therefore, prayed that the petition may be allowed
and the impugned orders may be quashed and set aside.
6. Mr. Jeet Bhatt, learned advocate appearing for the
respondent No.4.1, on the other hand, vehemently opposed the
petition and submitted that the Deputy Collector, Land Reforms did
not consider the merit of the matter and on the contrary,
proceeded on the aspect of delay. He further submitted that no
reasons are assigned for not condoning the delay of 26 years by the
Deputy Collector while rejecting the delay condonation application
and, therefore, the Tribunal has rightly entered into the merits of
the matter and quashed and set aside the orders passed by the
Deputy Collector and Mamlatdar & Krishi Panch. He further
submitted that the petitioners and the respondent No.4.1 happen to
be relatives and, therefore, by playing fraud upon the respondent
No.4, the petitioners succeeded in establishing himself as tenant
and, therefore, if any order is based on fraud, the same can be
quashed at any time without considering the aspect of delay. He
further submitted that the order passed by the Mamlatdar & Krishi
Panch is without jurisdiction as the proceedings had already
attained finality in the year 1968 between the parties and,
therefore, the Mamlatdar & Krishi Panch could not have passed the
order in the year 1977. He, therefore, prayed to dismiss the
petition.
7. I have heard learned advocates appearing for the
respective parties and perused the record. I found that the order
dated 7.10.1977 passed by the Mamlatdar & Krishi Panch,
Mehsana is based upon three facts, (i) admission of the respondent
No.4 indicating that the present petitioner is tenant of the land in
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question and (ii) it was also recorded in the said order dated
7.10.1977 that the petitioner's name was there in the Khed Hakk
even prior to 1976 - 77 and (iii) even various taxes in the form of
related to revenue cess are being apid by the present petitioners.
Surprisingly, the Tribunal completely ignored the aspect about the
admission of respondent No.4 as well as unexplained long delay of
26 years and proceeded by taking a completely different view in
respect of issue on hand. The Tribunal while allowing the revision
application preferred by the respondent No.4, considered the fact
that as per Section 32 P of the Tenancy Act, when the transaction
in favour of tenant becomes ineffective, the land is required to be
disposed of under Section 32P(9) and under Section 32G(4) if the
tenant is ready and willing to purchase the land, in that case,
limitation of one year is decided and after that the sale would
become ineffective and by proceeding on the aforesaid fact, as well
as by proceeding with the fact that in the present case, there is no
breach of Section 84-C as the petitioners and respondent No.4 are
the relatives having blood relations and, therefore, original
proceedings under Section 84-C pursuant to which the proceedings
under Section 32P(9) had taken place are not in confirmity with the
provisions of the Act and, therefore, by recording aforesaid
reasoning, the order dated 7.10.1977 of the Mamlatdar & Krishi
Panch was also quashed. However, according to this Court, if the
proceedings under Section 32P(9) were without jurisdiction, at the
relevant point of time, those proceedings were required to be
challenged. Instead of challenging those proceedings, the parties
participated in those proceedings and there upon admission of the
respondent No.4 as well as in view of the evidence that the present
petitioner was cultivating the land and was paying land revenue
and was in possession of the land, he was held tenant and purchase
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price was fixed, pursuant to which till date, petition is in possession
of the land in question and equity is created in his favour due to his
long possession since 1976 - 77.
8. The Tribunal completely ignored the aforesaid aspect
and proceeded on the basis of extraneous consideration which were
never canvassed by respondent No.4.1 before 2004 before the
Deputy Collector after delay of 26 years. Today also, learned
advocate Mr. Jeet Bhatt could not explain the long delay of 26 years
and, therefore, when the Tribunal has quashed and set aside the
orders dated 7.10.1977 and 20.11.2004 in favour of the petitioners,
the tribunal has committed an error by completely ignoring the
aspect of delay of 26 years.
9. In the result, the petition succeeds and is allowed. The
order dated 3.2.2015 passed by the Gujarat Revenue Tribunal in
Review Application No.TEN/CA/1/14 as well as the order dated
5.12.2013 passed by Gujarat Revenue Tribunal in Revision
Application No.TEN/BA/199/2005 are quashed and set aside. Rule
is made absolute to the above extent. No order as to costs.
Sd/-
(NIRZAR S. DESAI,J)
SAVARIYA
