Lhr Of Decd Maganbhai Lallubhai ... vs State Of Gujarat
2023 Latest Caselaw 2124 Guj

      C/LPA/260/2023                            ORDER DATED: 07/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                R/LETTERS PATENT APPEAL NO. 260 of 2023

            In R/SPECIAL CIVIL APPLICATION NO. 7160 of 2015

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       LHR OF DECD MAGANBHAI LALLUBHAI JIVABHAI TALPADA
                            Versus
                      STATE OF GUJARAT
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Appearance:
MR MRUGEN K PUROHIT(1224) for the Appellant(s) No.
1,1.1,2,2.1,2.2,2.3,2.4,2.5,2.6,2.7
for the Respondent(s) No. 1,2,3,4
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    CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
          JUSTICE A.J.DESAI
          and
          HONOURABLE MR. JUSTICE BIREN VAISHNAV

                            Date : 07/03/2023

                        ORAL ORDER

(PER : HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE A.J.DESAI)

1 By way of present appeal under Clause 15 of the

Letters Patent, the original petitioner has challenged the

oral judgment and order dated 15.07.2022 passed by the

learned Single Judge in Special Civil Application No. 7160

of 2015, by which, challenge qua different orders

including that of the order passed by the Gujarat Revenue

Tribunal is not entertained.

C/LPA/260/2023 ORDER DATED: 07/03/2023

2 The case of the petitioner before this Court is that

the grandfather of the petitioner, namely, Lallubhai

Jivabhai Talpada, was a protected tenant by virtue of

order dated 17.10.1960 passed in Suo Motu Tenancy

Case No. 232 of 1960. Even it is also the case of the

petitioner that a Certificate under Section 32 M of the

Bombay Tenancy & Agricultural Lands Act, 1948 was

issued by the Mamlatdar on 23.10.1984, however, the

Certificate has not been produced.

2.1 It is the case of the petitioner that respondent No.3,

purchased the land admeasuring 13096 sq.mtrs for the

construction of factory and 3568 sq.mtrs for the purpose

of open land situated at village: Kamla, Tal: Nadiad.

According to the petitioner, N.A. permission was granted

under Sec.65 of the Bombay Land Revenue Code, way

back on 11.08.1961 on certain terms and conditions.

2.2 In the year 2012, the petitioner made an application

before the Deputy Collector, Nadiad, that the company

C/LPA/260/2023 ORDER DATED: 07/03/2023

has not complied with the conditions of N.A permission.

Proceedings were initially decided by the Collector in

favour of the Company and ultimately by the Gujarat

Revenue Tribunal. All that orders came to be challenged

by captioned writ petition being Special Civil Application

No. 7160 of 2015. The learned Single Judge by oral

judgement dated 15.07.2022 dismissed the petition,

hence the present appeal.

3 Mr.Mrugen Purohit, learned counsel for the

petitioners, would submit that though an application was

made by the petitioner for breach of terms and conditions

of N.A Permission, which was granted in favour of private

respondents, before passing the orders, the Collector did

not give an opportunity of hearing. He would submit that

the Tribunal ought not to have examined the right, title or

interest of the petitioner since he was a protected tenant.

He therefore would submit that the order passed by the

authority and confirmed by the learned Single Judge be

quashed and set aside.

C/LPA/260/2023 ORDER DATED: 07/03/2023

4 We have heard learned advocates appearing for the

respective parties, perused the impugned order, the

contents raised in the memo of the petition, affidavit-in-

reply filed on behalf of the private respondent No.4 and

the order passed by the Gujarat Revenue Tribunal. It is

undisputed fact that the property in question was

purchased in the year 1960 by respondent No.3 and N.A.

Permission was obtained in the year 1961. On behalf of

the applicant, an application was made for the first time

after more than 41 years i.e. in the year 2012, and

therefore, the authorities below have rightly held about

right, title or interest of the of the present petitioners.

Apart from the ownership of right and property, such

application has been preferred after an unexplained delay

on behalf of the present appellants. It also appears that

the order was passed by this Court way back on

10.04.1974 in Special Civil Application No. 1467 of 1969

filed by the present respondent company for payment of

Rs.17,000/- and requesting to drop the proceedings

initiated under Sec. 32(G) of the The Bombay Tenancy &

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Agricultural Lands Act, 1948, which was accepted. All

these aspects have been considered by the Tribunal. The

Tribunal has rightly held that the appellants have no

right, title or interest in the property. The learned Single

Judge has considered various aspects, including civil

proceedings filed at the instance of the present

petitioner. The order of the Tribunal is confirmed by this

Court in another proceedings, being Special Civil

Application No. 6856 of 1991. All these aspects have been

considered by the learned Single Judge.

5 We are in agreement with the observations made by

the learned Single Judge in paras 5 to 8, which are

reproduced hereinabove:

"5. Having heard learned advocates for the parties and having gone through the material on record it appears that the petitioners have lost their battle with regard to their right as protected tenants over the land in question. Except pendency of the Regular Civil Suit No. 338 of 2012, there is no other proceeding which is pending. The Gujarat Revenue Tribunal has also dismissed the Revision Application filed by one of the ancestors of the petitioners being Revision Application No. TEA.B.A 51/86 by order dated 08.03.1991 by holding as under:

C/LPA/260/2023 ORDER DATED: 07/03/2023

"11.Under the circumstances, considering the documentary evidence on record and the attitude of the deceased tenant is not depositing the amount of purchase price prove that the deceased tenant had absolutely no right, title and interest in suit survey number, the deceased tenant had sold his right, title and interest in the suit survey number to Mahendra Electricals Co. Hence the applicant has absolutely no right, title and interest in the suit survey number. In the result, I do not find any reason to remand this case to the Mamlatdar & A.L.T. for any further hearing. All the documentary evidence on which the parties want to rely are before us and the applicant is not in a position to prove his interest in the suit survey number, while the opponent No.1 Mahendra Electricals has proved that I it a bona fie purchaser of the suit survey number from the father of the applicant after obtaining permission u/s. 63 of the Act. In the result, the applicant is not entitled to get any relief. Hence, the revision application fails and is dismissed."

6. The aforesaid order of the Tribunal is confirmed by this Court in Special Civil Application No. 6856 of 1991 vide order dated 15.07.1995.

7. Thus, the order passed under section 63 of the Act, 1948 has achieved finality on the ground that tenant has sold his right, title, or interest in the land in question to Mahendra Electricals Company and therefore, the petitioners have absolutely no right, title or interest in the land in question. As the respondent No.3 Mahendra Electricals Company is held to be a bona fide purchaser of the land in question from the protected tenant after obtaining permission under section 63 of the Act, 1948, the petitioners would not have any locus to make any

C/LPA/260/2023 ORDER DATED: 07/03/2023

application raising any objection against N.A.order passed in 1961, as the petitioners do not have any right title or interest over the land in question in any manner whatsoever.

8.This Court also in case of Bhayabhai Vajshibhai Hathalia(supra) has held that section 65 of the Code does not envisage scope of raising any objection by any party who is not acknowledged right or interest in the land in question."

6 We do not find any substance in the arguments

advanced by Mr.Purohit, learned counsel for the

petitioners. The petition is accordingly, dismissed.

(A.J.DESAI, ACJ)

(BIREN VAISHNAV, J) BIMAL