Gujarat High Court

Heirs Of Decd. Ranchhodbhai ... vs Heir Of Decd. Chunilal Lallubhai ... on 2 March, 2023

Bench: Bhargav D. Karia

     C/SCA/3292/2023                             JUDGMENT DATED: 02/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 3292 of 2023


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE BHARGAV D. KARIA

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

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 ?

==========================================================
       HEIRS OF DECD. RANCHHODBHAI KHODIDAS PRAJAPITI
                            Versus
 HEIR OF DECD. CHUNILAL LALLUBHAI DASHRATH BHULABHAI PATEL
==========================================================
Appearance:
MR. PRAKASH JANI, SENIOR ADVOCATE with MR TATTVAM K
PATEL(5455) for the Petitioner(s) No. 1,1.1,1.2,1.3
for the Respondent(s) No. 1,2,2.1,2.2,2.3,3,4,6
MR. DHAWAN JAYSWAL, AGP for the Respondent(s) No. 5
==========================================================

    CORAM:HONOURABLE MR. JUSTICE BHARGAV D. KARIA

                             Date : 02/03/2023

                            ORAL JUDGMENT

1. By this petition under Article 227 of the

Constitution of India, the petitioners have

C/SCA/3292/2023 JUDGMENT DATED: 02/03/2023

challenged the order dated 23.1.2023 passed by

the Gujarat Revenue Tribunal (for short "the

Tribunal") in Revision Application No. AMD/296/22

(for short "the revision application").

2. By the impugned order the Tribunal has

admitted the Revision Application filed by the

Respondent No.1 being aggrieved by the judgment

and order dated 14.7.2022 passed by the Deputy

Collector under Section 65 of the Gujarat Land

Revenue Code 1879 (for short "the Code").

3. The Tribunal on receipt of the revision

application filed by Respondent No.1 issued

notice dated 30.8.2022 calling upon the

petitioners for preliminary hearing of the

revision application.

4. The petitioners in response to such notice

filed objection against admission of the revision

application.

C/SCA/3292/2023 JUDGMENT DATED: 02/03/2023

5. After hearing the learned Advocates of the

petitioners and Respondent No.1 and after

considering that the revision application is

filed within the period of limitation, the

Tribunal ordered to admit the revision

application under Section 76 of the Gujarat

Tenancy and Agricultural Land Act 1948 (for short

"the Gujarat Tenancy Act").

6. Learned Senior Advocate Mr. Prakash Jani

appearing with learned Advocate Mr. Tattvam K.

Patel for the petitioners submitted that the

Tribunal has failed to hold that the revision

application was required to be rejected

considering the objections raised by the

petitioners on merits, on law as well as on

procedure which were tendered before the

Tribunal. It was submitted that the Tribunal has

not recorded any reason for admitting the

revision application.

C/SCA/3292/2023 JUDGMENT DATED: 02/03/2023

7. Learned Senior Advocate Mr. Prakash Jani has

placed reliance upon Rule 13 of the Bombay

Tenancy And Agricultural Lands (Bombay Revenue

Tribunal Procedure) Rules, 1958 (for short "the

Bombay Tenancy Rules") which are applicable for

the purpose of regulating the procedure to hear

matters filed before the Tribunal.

8. It was submitted that as per sub Rule (3) of

Rule 13 of the Bombay Tenancy Rules, the Tribunal

may for the sufficient reasons admit or reject

the application.

9. Reference was made to sub Rule (1) and (2) of

Rule 13 of the Bombay Tenancy Rules to point out

that the Tribunal is required to issue notice of

preliminary hearing to the applicants or to duly

appointed agent or lawyer after the application

has been registered. It was also pointed out

that after the issuance of notice under sub Rule

(1) if the applicant does not appear before the

C/SCA/3292/2023 JUDGMENT DATED: 02/03/2023

Tribunal either in person or through agent or

lawyer on the date mentioned in the notice, the

application is required to be heard and decided

ex parte. It was pointed out that as per the

proviso to sub Rule (3) of Rule 13 of the Bombay

Tenancy Rules no application shall be rejected

without giving reasons in writing for doing so.

10. Learned Senior Advocate Mr. Prakash Jani has

also referred to sub Rule (4) of Rule 13 of the

Bombay Tenancy Rules empowering the Tribunal to

call for the record and proceedings of the case.

11. It was therefore submitted that in view of

Rule 13 of the Bombay Tenancy Rules, the Tribunal

ought to have given the reasons for admission of

the revision application under Section 76 of the

Gujarat Tenancy Act.

12. It was submitted that the petitioners have

filed exhaustive written submissions raising the

C/SCA/3292/2023 JUDGMENT DATED: 02/03/2023

objections to the admission of the revision

application relying upon the decided cases and

pointed out that the Tribunal has very limited

jurisdiction under Section 76 of the Gujarat

Tenancy Act.

12.1 It was submitted that when there are

concurrent findings, the Tribunal could not have

admitted the revision application.

12.2 It was further pointed out that the

proceedings under Section 32(1)(b) of the Gujarat

Tenancy Act itself were not maintainable and

therefore the entire proceedings initiated

against the petitioners is without jurisdiction

and the Tribunal therefore could not have

admitted the revision application.

13. Having heard learned Senior Advocate Mr.

Prakash Jani for the petitioners and considering

the provisions of Section 76 of the Gujarat

C/SCA/3292/2023 JUDGMENT DATED: 02/03/2023

Tenancy Act read with Rule 13 of the Bombay

Tenancy Rules, it appears that the Tribunal is

not required to give any reasons while admitting

the revision application. For this, it would be

germane to refer to Section 76 of the Gujarat

Tenancy Act as well as Rule 13 of the Bombay

Tenancy Rules which reads as under:

"Section 76. (1) Notwithstanding anything contained in the 2 [Bombay Revenue Tribunal Act, 1957] an application for revision may be made to the [Gujarat Revenue Tribunal] constituted under the said Act against any order of the Collector [except an order under section 32P or an order in appeal against an order under sub-section (4) of section 32G] on the following grounds only :-

(a) that the order of the Collector was contrary to law,

(b) that the Collector failed to determine some material issue of law, or

C/SCA/3292/2023 JUDGMENT DATED: 02/03/2023

[or that there has been failure to take evidence or error in approciating important evidence] which has resulted in the miscarriage of justice.

(2) In deciding applications under this section the [Gujarat Revenue Tribunal] shall follow the procedure which may be prescribed by rules made under this Act after consultation with the [Gujarat Revenue Tribunal]."

13.1 Rule 13 of the Bombay Tenancy Rules

provides the procedure for registering the

application which reads as under:

"13. Procedure on registering application: (1) Where an application has been registered, the Registrar shall, as soon thereafter as possible place it before the Tribunal for preliminary hearing. A notice of preliminary hearing shall be given to the applicant or to his duly appointed agent or lawyer.

(2) A notice Under sub-rule (1) shall state that if the applicant does not appear before the Tribunal either in person or through an agent or lawyer on the date mentioned in the notice, the

C/SCA/3292/2023 JUDGMENT DATED: 02/03/2023

application shall be heard and decided ex-parte.

(3) The Tribunal may, for sufficient reasons, admit or reject the application.

Provided that no application shall be rejected without giving reason in writing for doing so.

(4) For the purpose of making an order under sub- rule (3), the Tribunal may direct the Registrar to call for the record and proceedings relating to the application under consideration, or any other papers or documents, from the Collector or the authority concerned:

Provided that the record and proceedings shall not be called nor processes issued unless the process fee prescribed under Rule 47 is duly received by the Registrar."

14. On a careful perusal of Section 76 of

the Gujarat Tenancy Act read with Rule 13 of the

Bombay Tenancy Rules, it appears that the

Tribunal is having jurisdiction to hear an

application for revision against any order of the

Collector except an order under Section 32(P) or

an order in Appeal against an order under sub

C/SCA/3292/2023 JUDGMENT DATED: 02/03/2023

Section (4) of Section 32 (G).

15. In view thereof, it would therefore now

be necessary to refer to the procedure on

registering the application.

15.1 When an application in form of revision

was filed by Respondent No.1 within the

prescribed limitation and when such application

is registered as per sub Rule (1) of Rule 13 of

the Bombay Tenancy Rules, the Registrar of the

Tribunal is required to place such application

before the Tribunal for preliminary hearing and

notice of preliminary hearing is required to be

given only to the Respondent No.1 - applicant

before the Tribunal or to his duly appointed

agent or lawyer.

15.2 Sub Rule (1) of Rule 13 of the Bombay

Tenancy Rules does not prescribe any procedure

for issuance of notice upon the petitioners who

C/SCA/3292/2023 JUDGMENT DATED: 02/03/2023

are respondents before the Tribunal. Similarly,

sub Rule (2) of of rule 13 of the Bombay Tenancy

Rules prescribes that on service of notice of

preliminary hearing upon the applicant before the

Tribunal, if such applicant does not appear

before the Tribunal either in person or through

an agent or lawyer on the date mentioned in the

notice, the application shall be heard and

decided ex parte. Therefore till the stage of

sub Rule (1) and (2) the Respondents before the

Tribunal i.e. the petitioners herein are not

required to be heard at all by the Tribunal.

15.3 Sub Rule (3) provides that the Tribunal

after hearing the applicant before it or his duly

appointed agent or lawyer for sufficient reasons

either may admit or reject the application. Sub

Rule (3) does not prescribe for giving any

reason for admission of the application submitted

by the applicant which is fortified by the

proviso to sub Rule (3) of Rule 13 of the Bombay

C/SCA/3292/2023 JUDGMENT DATED: 02/03/2023

Tenancy Rules which provides that no application

shall be rejected without giving reasons in

writing for doing so. Meaning thereby that if

the Tribunal after giving preliminary hearing to

the applicant before it or his duly appointed

agent or lawyer comes to the conclusion that the

application is not required to be admitted then

the same can be rejected after recording the

reasons in writing for doing so and for that

purpose recourse to sub Rule (4) of Rule 13 of

the Bombay Tenancy Rules may be taken by the

Tribunal to call for the record and proceedings

of the case.

Therefore, neither Section 76 of the Gujarat

Tenancy Act nor Rule 13 of the Bombay Tenancy

Rules provide at any stage provide for any

hearing to the respondents in the revision

application filed before the Tribunal.

16.          In       the      facts     of        the     case        when         the





   C/SCA/3292/2023                                           JUDGMENT DATED: 02/03/2023




Tribunal        has    issued          the      notice           of    preliminary

hearing to all the parties so as to permit the

respondents before it - petitioners herein to

tender the objections, such procedure adopted by

the Tribunal is contrary to Rule 13 of the Bombay

Tenancy Rules and therefore the Tribunal has

rightly not considered the objections raised by

the petitioners against the admission of the

revision application.

17. As per Rule 13 of the Bombay Tenancy

Rules, the Tribunal is required to hear only the

applicant before it or its Advocate as per

prescribed procedure while deciding as to whether