Gujarat High Court
Dhulabhai Shivabhai Patel vs State Of Gujarat on 17 January, 2024
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 1634 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIRZAR S. DESAI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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DHULABHAI SHIVABHAI PATEL
Versus
STATE OF GUJARAT & 6 other(s)
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Appearance:
MS. SAMATA V PATEL(3784) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.5
VRAJLAL C PATEL(8463) for the Petitioner(s) No. 1,1.1,1.2,1.3,1.4,1.5
NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,4,5,6,7
MR. JAY TRIVEDI FOR THE RESPONDENT STATE.
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 17/01/2024
ORAL JUDGMENT
Heard learned senior advocate Mr. Shalin Mehta
with learned advocate Ms. Samta V. Patel for the
petitioner and learned AGP Mr. Jay Trivedi for the
respondent-State.
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1.1 Though the notices are served upon private
respondent they have chosen to remain absent before
this Court when the matter was called out.
2. At the outset upon instructions, learned advocate
Ms. Samta Patel makes it clear that though the
petitioner is pressing this petition, the petitioner does not
press his prayer in respect of order dated 25.10.2016
passed in Tenancy Appeal/SR/62/2009 passed by the
Deputy Collector (Land Reform) Gandhinagar.
3. In view of above, the petitioner has prayed for
following reliefs by way of this petition:
(A) Your Lordships may be pleased to issue a
writ of mandamus and/or certiorari or a writ in the
nature of mandamus and/or certiorari, or any
other appropriate writ, order or direction be
issued for quashing and setting aside the orders
dated 9.2.1962 passed in tenancy case no. 374 by
Mamlatdar and Krushipanch Kalol and order dated
5.7.2011 passed in Ganot/Appeal/SR/31/2008 by
the Deputy Collector (Land Reform) Gandhinagar,
order dated 16.7.2014 passed in Revision
Application No. TEN/BA/216/11 by the Gujarat
Revenue Tribunal, Ahmedabad and the order dated
25.10.2016 passed in Ganot/Appeal/SR/62/2009 by
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the Deputy Collector (Land Reform) Gandhinagar
and further be pleased to uphold the order dated
29.9.2007 passed by the Mamlatdar and
Krushipanch,Kalol in Tenancy Case No. 32-O-
105/07.
(B) Pending admission, hearing and final
disposal of the present petition, this Hon'ble Court
be pleased to stay the operation and
implementation of the orders dated 9.2.1962
passed in tenancy case no. 374 by mamlatdar and
Krushipanch Kalol and order dated 5.7.2011
passed in Ganot/Appeal/SR/31/2008 by the Deputy
Collector (Land Reform) Gandhinagar, order
dated 16.7.2014 passed in Revision Applciation
No. TEN/BA/216/11 by the Gujarat Revenue
Tribunal, Ahmedabad and the order dated
25.10.2016 passed in Ganot/Appeal/SR/62/2009 by
the Deputy Collector (Land Reform) Gandhinagar.
(C) Interim/Ex-parte Ad interim relief in terms of
para 14(B) be granted.
(D) Such other and further relief that this Hon'ble
Court may deemed and proper in the interest of
justice be granted.
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4. The brief facts of the case as narrated by learned
senior advocate Mr. Shalin Mehta is stated as under :
The issue pertains to an agricultural land bearing
block no. 1481(old Revenue Survey no.1206) situated at
Rancharda Taluka Kalol, District Gandhinagar which was
held by one Mr.Bhulabhai Ranchhodbhai and one Mr.
Mohanlal was cultivating the land as protected tenant.
5. The present petitioner who is a farmer and
according to the petitioner he was cultivating the
aforesaid subject land as sub tenant from 1956 till 1966
as tenant. Upon the death of the owner of the land lord
Bhulabhai Ranchhodbhai Patel's death on 11.12.1957
vide entry no.603 dated 13.6.1958, his legal heir
Kantibhai Bhulabhai Patel became the owner of the
subject land bearing survey no.1206 of village
Rancharda.
6. It is the case of the petitioner that Keshavlal
Mohanlal was declared as protected tenant vide mutation
entry no. 562 (10) & 603 as well as their names appeared
in several 7/12 extract for a period from the year 1952
to 1953.
7. The tenant Keshavlal Mohanlal Patel gave the land
bearing 1206 to the petitioner for cultivating it from
1956 onwards and at the time when the petitioner was
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cultivating the land in capacity of sub tenant one
Tenancy Case no. 374 was preferred by protected tenant
Keshavbhai Mohanbhai was registered as the protected
tenant but he showed his unwillingness to purchase the
land and therefore, in the Tenancy case no. 374 vide
order dated 9.2.1962, the purchase of the land was
declared to be ineffective.
8. In the petition though it is not stated but the record
indicates that in the year 1989, the petitioner preferred
an application under Section 32(O) and sought a
declaration to declare him as a tenant but vide order
dated 20.4.1990 the aforesaid proceedings were closed as
the sale of the land in question was already held invalid
and the land was directed to be disposed of as per section
32 P-2-c. The aforesaid order was passed by Mamlatdar
and Alt Kalol .
9. However, in the petition aforesaid fact is not stated
but the same was submitted by learned senior advocate
Mr. Mehta, while arguing the matter and even the photo
copy of the aforesaid order dated 20.4.1990 in the
Tenancy case no. 95 of 1989 was also placed on record
and the same is taken on record.
10. It is the case of the petitioner that in the year 2007,
the petitioner preferred an application under Section
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32(O) which was considered positively by Mamlatdar &
Alt, Kalol who passed an order on 29.9.2007 in Tenancy
case no. 32-O/105/07/ and declared the petitioner to be
tenant of land bearing block no. 1481 admeasuring
0/58/27 hect RA sq. mts and certificate to that effect was
also issued.
11. The aforesaid order was challenged by way of an
Tenancy Appeal/SR/31 of 2008 by the legal heir of
original land lord Bhulabhai Ranchodbhai namely
Kantibhai Bhulabhai Patel. The aforesaid tenancy appeal
was decided by the Deputy Collector Land Reforms,
Gandhinagar vide order dated 05.7.2011 and at that
time though he rejected the appeal preferred by
Kantibhai Bhulabhai, he observed that as the sale of
subject land was already declared invalid he quashed the
order dated 29.9.2007 in Ganot case no. 105/07 and
directed the proceedings as per Section 32 P-2-c of the
Act.
12. The petitioner challenged the aforesaid order dated
5.7.2011 passed by Deputy Collector, (Land Reforms)
Gandhinagar before GRT by preferring Revision
Application under section 76 of the Act being revision
application Ten /BA/216 of 11 which was also rejected
vide order dated 16.7.2014 by Gujarat Revenue Tribunal
and therefore being aggrieved by the aforesaid two
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orders dated 16.7.2014 as well as 5.7.2011 the petitioner
had preferred this petition.
13. Learned Senior advocate Mr. Shalin Mehta at the
outset submitted that though in the petition there is no
reference about 20.4.1990 order during the pendency of
the petition he came to know about passing of such
order and therefore, the aforesaid order was placed on
record.
14. Learned senior advocate submitted that it is true
that vide order dated 20.4.1990 in Tenancy case no. 95
of 1989 though the petitioner's application under 32(O)
was rejected under different circumstances once again
such application was preferred by the petitioner in the
year 2007 and Mamlatdar & ALT being a quasi judicial
authority the principal of resjudicata will not apply to
him in strict sense. He, therefore submitted that the
Mamlatdar & ALT, Kalol had while passing the order
dated 29.9.2007 considered the chain circumstances and
declared the petitioner to be a tenant and therefore all
the authorities namely Deputy Collector and GRT have
committed an error by considering the order of 20.4.1990
in Tenancy Appeal No. 95 of 1989 and ignored the chain
circumstances and therefore, both the impugned orders
are required to be quashed and set aside. The learned
Senior advocate did not make any other submissions
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except what is incorporated hereinabove .
15. Learned AGP Mr. Jay Trivedi, vehemently opposed
the petition and submitted that the petitioner's
application under section 32(O) being Tenancy Appeal
no. 95 of 1989 was already decided against the petitioner
vide order dated 20.4.1990 and the petitioner's attempt
to seek a declaration to the effect that he is a tenant in
respect of land in question had already failed in the year
1990 itself. There is no procedure or concept in the
entire act which provides for reconsideration of earlier
order or to make fresh application under the chain
circumstances according to learned AGP Mr. Jay Trivedi
and therefore according to learned AGP Mr. Trivedi, the
subsequent application under Section 32(O) being
Tenancy Case no. 32/O/105/07 was a application which
was misconceived and could not have been entertained
by the Mamlatdar, Kalol at the relevant point of time.
Despite that though such application was decided earlier
vide order dated 20.4.1990 and despite the fact that
Mamlatdar was aware about the aforesaid fact as he has
referred about the aforesaid order in his order, the
Mamlatdar & ALT Kalol could not have passed an order
contrary to the earlier order as he was not sitting in an
appeal over the order dated 20.4.1990. It is pointed out
by learned AGP Mr, Trivedi that the order dated
20.4.1990 in Tenancy case no. 95 of 1989 was never
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challenged by the present petitioner and the said fact
could not be disputed by learned senior advocate upon
instructions.
16. In view of above, learned AGP Mr. Trivedi prayed
for dismissal of the petition, as the order passed by
Deputy Collector and GRT are based upon the order
dated 20.4.1990 in Tenancy case no. 95 of 1989 whereby
the petitioner's claim as tenant was rejected by the
Mamlatdar and ALT Kalol.
17. No other submission were made by either side.
18. I have heard learned counsels for the parties and
perused the record and upon perusal of the record I
found that though the order dated 20.4.1990 was not
placed on record at the time when the petition was filed
and subsequently today during the course of hearing the
order dated 20.4.1990 in Tenancy Case no. 95 of 1989 is
placed on record by learned senior advocate Mr. Mehta.
As per the aforesaid order the petitioner's application
was closed as the sale proceedings were already held to
be ineffective and the land was directed to be disposed of
as per section 32 P-2-c of the Act.
19. On perusal of the record I have also found that after
order dated 20.4.1990 passed considering the fact that
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the land was already sold by way of an oral agreement
the proceedings under section 84 C were initiated and
not under section 32 P-2-c. However, fact remains that
the petitioner was not declared tenant in the year 1990.
20. Record also indicates that the aforesaid proceedings
under 84 C did not yield any result and the possession of
the land remained with the petitioner also as submitted
by learned senior advocate upon instructions. Be that as
it may. The fact remains that earlier proceeding being
tenancy case no. 95 of 1989 under section 32(O) was
held against the petitioner and thereafter in a parallel
proceedings after a period of 17 years the Mamlatdar &
ALT, Kalol once again by taking note of the earlier
proceedings declared the petitioner as tenant in respect
of land in question as if he was sitting in appeal over the
order dated 20.4.1990. The aforesaid order dated
29.9.2007 was challenged by the legal heir of the original
land lord and therefore the Deputy Collector (Land
Reforms), Gandhinagar has rightly rejected the appeal
preferred by the legal heir of the land lord and held that
as the sale of the land had already become ineffective
vide order dated 20.4.1990 in tenancy case no. 95 of
1989, the order dated 29.9.2007 is also required to be
quashed aside and the aforesaid finding was confirmed by
the GRT.
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21. On perusal of the record and as well as considering
the submissions made by learned counsels appearing for
the parties, I am of the view that the submissions of
learned senior advocate that the Mamlatdar & ALT being
quasi judicial authority the principal of resjudicata would
not be applicable strictly in respect of proceedings before
the quasi judicial authorities. The aforesaid submission is
not backed by any of the judicial pronouncement and
therefore, considering the fact that the principle of
resjudicata would bind the parties in respect of even the
proceedings before the quasi judicial authorities the
submission of learned senior advocate cannot be
accepted.
22. On perusal of impugned orders, I do not find any
illegality or error committed by the revenue authorities
namely Deputy Collector (Land Reforms), Gandhinagar
or GRT while dismissing the revision application of the
petitioner and therefore those orders need not be
interfered with.
23. In view of above, the present petition fails and the
same is required to be dismissed and is dismissed
accordingly. Notice is discharged. No order as to costs.
(NIRZAR S. DESAI,J)
MARY VADAKKAN
