Gujarat High Court
Ramesh Chimanlal Shah vs State Of Gujarat on 17 April, 2025
Author: Nikhil S. Kariel
Bench: Nikhil S. Kariel
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 12533 of 2017
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
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Approved for Reporting Yes No
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RAMESH CHIMANLAL SHAH & ORS.
Versus
STATE OF GUJARAT & ORS.
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Appearance:
DECEASED LITIGANT THROUGH LEGAL HEIRS/ REPRESTENTATIVES for
the Petitioner(s) No. 2
MR HRIDAY C BUCH WITH Ms. HIMANI KINI(7489) for the Petitioner(s) No.
1,2.1,2.2,2.3
MR NIKUNJ KANARA ASSISTANT GOVERNMENT PLEADER/PP for the
Respondent(s) No. 1
MR AS VAKIL WITH MR DM SHAH(5989) for the Respondent(s) No. 5,5.1,5.2,5.3,5.4
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CORAM:HONOURABLE MR. JUSTICE NIKHIL S. KARIEL
Date : 17/04/2025
ORAL JUDGMENT
1. Heard learned Advocate Mr. Hriday C. Buch with learned Advocate
Ms. Himani Kini on behalf of the petitioners, learned Assistant
Government Pleader Mr. Nikunj Kanara on behalf of respondent- State,
learned Advocate Mr A.S. Vakil with learned Advocate Mr. D.M Shah on
behalf of respondents No. 5.1 to 5.4 and learned Advocate Mr. J.K. Shah
who had been requested to assist the Court as an Amicus Curiae.
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2. By way of present petition the petitioners have challenged an order
dated 04.01.2017 passed by the Gujarat Revenue Tribunal (hereinafter to be
referred as 'GRT') in Revision Application No. TEN/BA/313/2015, more
particularly whereby the GRT has declared the original petitioners as not
being tenants qua land bearing Survey No. 1025 - Block No. 730 situated at
Village: Bil, Taluka, District: Vadodara. Consequently the GRT had set aside
the orders dated 03.09.2015 by the Deputy Collector ( Land Reforms &
Appeal), Vadodara in Tenancy Appeal No. 50 of 2013 as well as order dated
28.02.2013 passed by the Mamlatdar and Agriculture Land Tribunal
( hereinafter to be referred to as 'ALT' ) in Tenancy Case No. 6463 of 1991-
New Number Remand Case No. 50 of 2012 insofar as the land in question
is concerned more particularly whereby the status of the petitioners as
tenants had been upheld.
2.1. At this stage it would be relevant to further mention that the
petitioners after passing of the order impugned dated 04.01.2017, had also
preferred a review application inter alia seeking clarification that the order
dated 04.01.2017 was applicable qua block no. 730 only and the order
would not be applicable qua land bearing block no. 731, both lands situated
at Village: Bil, Taluka,District: Vadodara. The GRT vide order dated
22.05.2017 had allowed the revision application and the status of the
petitioners as tenants qua land bearing Block No. 731 had been confirmed/
upheld. It also requires to be mentioned herein that the order in review has
been produced on record by the respondents no. 5.1. to 5.4 in their
affidavit- in- reply and whereas the petitioners have not placed the said
order on record.
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3. Be that as it may the present petition is taken up for final hearing in
view of request made by the Hon'ble Supreme Court to decide the present
petition as expeditiously as possible preferably within a period of four
months from the date of order i.e 20.12.2024. In this regard, it requires to
be noted that order of the Hon'ble Supreme Court dated 20.12.2024, had
been brought to the notice of this Court by the registry vide a note dated
02.01.2025 and whereas none of the parties had brought the said order or
earlier order of the Hon'ble Supreme Court dated 30.03.2022 to the notice
of this Court anytime prior to the note of the Registry.
4. It also appears here that notice has not been issued in the present
petition and while an objection in this regard had been taken by the learned
Advocate appearing for respondents no. 5.1 to 5.4 and whereas since
respondents no. 1 to 4 were already represented through the office of the
Government Pleader and since respondent no. 5-5.1 to 5.4 were on caveat,
therefore, this Court had deemed it appropriate to conduct the final hearing
of the writ petition more particularly to comply with the request made by
the Hon'ble Supreme Court. It is observed that notice is not issued by this
Court to respondents no. 6.1 to 6.5 since it appears that presence of the said
respondents is not required for effective adjudication of the present writ
petition. It is further clarified insofar as the respondents. 6.1 to 6.5 are
concerned that the GRT vide order dated 04.01.2017 as clarified vide order
dated 22.05.2017 in review application held that the petitioners herein are
held to be tenants of land bearing block no. 731 belonging to the
respondents no. 6.1 to 6.5. It thus appears that the respondents no. 6.1 to
6.5 have not challenged order dated 04.01.2017 as clarified vide order dated
22.05.2017. As it is, from the record it is discernible that the respondents no.
6.1 to 6.5 have given up their claim on land bearing survey no. 731, during
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the first round of proceedings before the GRT and they had stuck to their
stand in the remand proceedings arising from the order of GRT in the first
round. Again neither did the respondent no. 6.1 to 6.5 challenge order of
the Mamlatdar & ALT dated 28.02.2013, or the order of the Deputy
Collector dated 03.09.2015, i.e. the orders impugned before the GRT in the
final round of proceedings wherein the order impugned had been passed.
Thus the challenge to the status of petitioners as tenants was only qua the
land bearing Block No. 730 i.e. the present subject land which was of the
ownership of original respondent no. 5 and later on respondents no. 5. 1 to
5.4 and whereas in the said dispute respondents no. 6.1 to 6.5 who were
concerned with land bearing Block No. 731 are not required to be in any
manner heard rather the present petition could be decided in absence of
respondents no. 6.1 to 6.5 and whereas neither the learned Advocate for
respondents no. 5.1 to 5.4 could be heard espousing the cause of
respondents no. 6.1 to 6.5 and nor would the absence of respondents no.
6.1. to 6.5 cause any legal lacuna and hence the objection of learned
Advocate for the respondents no. 5.1 to 5.4 is not countenanced .
THE FACTS
5. The facts leading to filing of this petition has a long and checkered
history and since the same would be relevant for deciding the present writ
petition, the same is stated as below:
5.1 It appears that vide entry no. 2301, name of the petitioners came to
be mutated in the revenue record qua land bearing survey nos. 1026, 1027,
1028 and 1029, co-relatable to land bearing block no. 731 and also in
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relation to land bearing survey no. 1025 co-relatable to block no. 730. The
said entry had been mutated on 06.02.1981 showing the names of the
petitioners as cultivators in the column of "Khedhak- right to till" in the
revenue record.
5.2 It appears that the Bill Gram Panchayat through Talati had vide
communication dated 09.10.1991, intimated to the Mamlatdar and ALT,
Vadodara that names of the petitioners were incorporated in the revenue
record with effect from 29.12.1980 as cultivating the lands in question i.e.
Block nos. 730 and 731 and the same was continuing till the said date and
therefore, appropriate proceedings under the Gujarat Tenancy and
Agricultural Land Act,1948 ( hereinafter to be referred to as the 'Tenancy
Act') may be taken qua the lands in question. It appears that the Mamlatdar
and ALT had initiated proceedings under Tenancy Case No. 6463 of 1991
and whereas the Mamlatdar and ALT had passed an order on 26.12.1991
under Section 32(G) of the Tenancy Act more particularly holding that the
original petitioners were tenants of the lands in question and purchase price
with regard to the lands was also fixed. It also appears that the purchase
price had been paid by the petitioners.
5.3. It appears that the order had been challenged by original respondent
no. 6 by preferring Tenancy Appeal No. 167 of 1998 after delay of
approximately 7 years. In the said proceedings, the Deputy Collector ( L.R &
A ), Vadodara as Appellate Authority vide order dated 25.06.1999, had inter
alia held that since the petitioners had misused the tenancy proceedings in
collusion with the land owners therefore, the land was directed to be vested
in the State Government under Section 84C of the Tenancy Act. It would
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be relevant to note that the respondent no. 5 was not an appellant in the
said proceedings nor the said respondent was joined as a party therein.
6. It appears that the said order had been challenged by the petitioners
by preferring Revision Application No. TEN/BA/411/1999, as well as by
the respondents no. 6.1 to 6.5 herein and original respondent no. 5 by
preferring Revision Application No. TEN/BA/429/1999. It appears that in
the Revision Application, respondent no. 5 through her Power of Attorney,
incidentally through which Power of Attorney, the present litigation is
contested by the respondents no. 5.1. to 5.4 along with respondents no. 6.1
to 6.5 had preferred a joint affidavit on 12.06.2008 whereby they had sought
permission to withdraw revision application preferred by them and had also
sought for allowing the Revision Application preferred by the petitioners
herein.
7. It would appear that the Gujarat Revenue Tribunal had vide order
dated 17.11.2008 set aside the order passed by the Deputy Collector dated
25.06.1999 and had remanded the matter back to the Deputy Collector .
The GRT had noted that while the Deputy Collector had alleged that parties
had colluded, yet there did not appear to be any material reflected in the
order with regard to the same. The GRT also held that the order also does
not state as to whether there was any defect in the order passed by the
Mamlatdar and ALT dated 26.12.1991. Further, the GRT also held that the
order of the Deputy Collector, also does not clarify as to whether the
Deputy Collector has confirmed or rejected the order of the Mamlatdar
which was impugned before him i.e order dated 26.12.1991. Based on such
observations, the Gujarat Revenue Tribunal while setting aside order
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impugned had not acceded to the request of respondents no. 5 and 6 and
had remanded the matter back to the Deputy Collector directing the Deputy
Collector to afford appropriate opportunity to all the parties and whereas,
the view of the Collector was also required to be taken. The Gujarat
Revenue Tribunal had also noted that appropriate request could be made
before the Deputy Collector where the matter was being remanded for
permission to withdraw etc., in context of the request made by respondents
no. 5 and respondents no. 6.1 to 6.5 herein.
7.1 It appears that the Deputy Collector in remand had numbered the
proceedings as Tenancy Appeal No. 66 of 2008 and had passed an order
dated 06.06.2009 whereby the Deputy Collector had remanded the entire
issue to the Mamlatdar and ALT more particularly for inquiring into the
aspect as to whether the petitioners were original agriculturists under
Section 63 of the Tenancy Act or not.
7.2 It would be pertinent to mention here that before the Deputy
Collector, the respondent no. 5 through her Power of Attorney, had inter
alia relied upon affidavit filed before the Gujarat Revenue Tribunal wherein
it was stated that respondent no. 5 was not inclined to challenge order
passed by the Mamlatdar and ALT of the year 1991 and hence she was not
a party in Tenancy Appeal No. 167 of 1998 and it was only on the account
of the pressure exerted by respondent no. 6 that respondent no. 5 had
joined as party revisionist before the Gujarat Revenue Tribunal. It was
further mentioned that submissions as regards her absence made before the
Deputy Collector in Appeal No. 167 of 1998, were false and observations
made by the Deputy Collector in this regard were also not tenable. It is also
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mentioned that respondent no. 5 sticks to the statement dated 26.12.1991
made before the Mamlatdar and ALT as regards the petitioners being
tenants upon the land of the respondent no. 5. Based upon such
submission it was requested to the Deputy Collector to confirm an order
passed by the Mamlatdar and ALT in Tenancy Case No. 6463 of 1991.
8. It appears that the remand case before the Mamlatdar and ALT, based
upon the order of the Deputy Collector dated 06.06.2009 had been
numbered as Tenancy Remand Case No. 64 of 2009. It would be pertinent
to mention here that in notice issued upon the parties dated 05.10.2009, the
Mamlatdar and ALT had explained the scope of the remand proceedings
inasmuch it was observed that as per the discussion made vide order dated
06.06.2009 by the Deputy Collector ( L.R & A), in Appeal Remand No. 66
of 2008, it was to be ascertained from the record as to whether the
petitioners were agriculturists or not.
8.1 It further appears that while inquiry was undertaken as per Section
32(G) of the Tenancy Act as reflected in the order, yet the Mamlatdar and
ALT vide order dated 19.04.2010 had come to a conclusion that since the
case of the petitioners is that they were tilling the land bearing block no.
730 and 731 at Village- Bill, Taluka District Vadodara from 1979-1980, and
since after Tenancy (Amendment) Act No. 10 of 2009 being passed, which
had the effect of deleting Section 32(O) from the Principal Act with effect
from 24.07.2009 therefore, there is no requirement of entering into the
aspect of whether the petitioners were tenants and any purchase price to be
fixed etc. and thus closed the proceedings.
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9. The petitioners being aggrieved by the order passed by the Mamlatdar
and ALT, had preferred an appeal before the Deputy Collector ( L R & A)
being Tenancy Appeal No. 72 of 2010 and whereas the said appeal came to
be partly allowed and whereas order dated 19.04.2010 passed by the
Mamlatdar and ALT had been set aside and matter had been remanded back
to the Mamlatdar and ALT. It appears that the principal aspect which
weighed with the Deputy Collector was that the matter had been remanded
to the Mamlatdar and ALT for examining the aspect of Section 63 of the
Tenancy Act i.e whether the petitioners were original agriculturists or not
and whereas it was further observed that there was no requirement of fixing
purchase price as regards the land in question since the purchase price had
already been fixed at the relevant point of time. Thus observing as noted
herienabove, the Deputy Collector had set aside the order and had
remanded the matter back to the Mamlatdar and ALT, Vadodara.
10. It would appear that the said order had been challenged by the
respondent no. 5 through Power of Attorney Holder before the Gujarat
Revenue Tribunal by preferring Revision Application No.
TEN/BA/173/2012 and whereas vide order dated 09.10.2012, the Gujarat
Revenue Tribunal had summarily rejected the said revision application
noting that the parties would be at liberty to raise all contentions in the
remand proceedings.
11. It appears that the Mamlatdar and ALT had reheard the Remand
Case which was now numbered as Remand Case No. 50 of 2012 and
whereas the proceedings were conducted as an inquiry under Section 70B
and 32(G) of the Tenancy Act. The Mamlatdar and ALT vide order dated
28.02.2013 had allowed the Remand Case.
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12. The Mamlatdar had in the order noted as to why the deletion of
Section 32(O) of the Tenancy Act would not have any relevance and
whereas as regards the scope of inquiry before him the Mamlatdar notes
that as far as the aspect of Section 63 of the Tenancy Act is concerned i.e.
with regard to the status of the petitioners as agriculturists, it was observed
that the petitioners had placed on record documents with regard to land
bearing revenue survey no. 97 at Village Udhamtpura Taluka Thasra from
1951-52 onwards including 7/12 extract and Village Form no. 6. It is
observed that in the year 1951-52 the land was running in the name of one
Ratanlal Kalidaas Shah i.e. grandfather of the petitioners and thereafter
vide succession entry names of the father of the petitioner as well as of
other legal heirs including the petitioners had been mutated in the revenue
record of rights. It is also observed that the land was being tilled by one
Dahyabhai Dhulabhai and from 1961 onwards the land had been purchased
by the said tenant under the provisions of Tenancy Act. It is further
observed that thus from 1961 till the names of the petitioners had been
entered in the revenue record of the subject land in the year 1979-80, there
is no record of the petitioners being agriculturist. Having observed as thus,
the Mamlatdar further observes that under the provisions of the Tenancy
Act, the tenant is not required to be an agriculturist. It is further noted that
the word "tenant" has been defined in Section 2(18) of the Tenancy Act and
the said definition also does not require a tenant to be a person having
status of agriculturist and thus a person not being an agriculturist also
could be a tenant. It is further observed that the owner of the land appears
to be settled abroad and that the owner is a foreign citizen. It is also
observed that having given an affidavit in favour of the petitioners in the
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proceedings before the Gujarat Land Revenue Tribunal, later on it is alleged
that the said reply was given by impersonating the Power of Attorney yet
the Mamlatdar further holds that in spite of the same, there is no contention
by the owners that the land is in their possession. The Mamlatdar further
observes that the land appears to be still in the possession of the
petitioners. Thus the Mamlatdar observes that no error is committed in the
original order dated 26.12.1991 and therefore, he directs restoration thereof.
12.1 It would be pertinent to mention here that it is in her reply through
her Power of Attorney Holder that the original owner of the land i.e.
respondent no. 5 herein had for the first time raised the contention that
her statement recorded by the Mamlatdar and ALT in the year 1991 was
fraudulent since on the said date she was not present in the country.
Furthermore it is in the said proceedings for the first time it was alleged that
the affidavit given by her Power of Attorney Holder was not given by the
Power of Attorney rather the affidavit was by fabricating the signature of
the Power of Attorney Holder.
12.2 The said order had been challenged by the respondent no. 5.1 to 5.4
herein, i.e respondent no. 5 having expired in the meantime, by filing
Tenancy Appeal No. 50 of 2013 before the Deputy Collector, Land
Reforms, Vadodara. In the said proceedings, the Deputy Collector had inter
alia observed that the owners of the land had not questioned entry no. 2301
entered in the year 1980 i.e. the entry whereby names of the petitioners had
been mutated in the revenue record with regard to "khedhak- right to till. "
Furthermore the Deputy Collector inter alia notes that order dated
26.12.1991 passed by the Mamlatdar holding the petitioners to be tenants
had never been challenged inspite of around 24 years having been passed
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and whereas reiterating the findings of the Mamlatdar and ALT qua the
aspect of tenants not required to have the status of agriculturalists, the
Deputy Collector vide order dated 03.09.2015 had confirmed the decision
of the Mamlatdar and ALT Vadodara dated 28.02.2013.
13. The respondents no. 5.1. to 5.4 had challenged the said decision
before the Gujarat Revenue Tribunal by preferring Revision Application No.
TEN/BA/313 of 2015 and whereas vide decision dated 04.01.2017, the
orders passed by the Mamlatdar and the Deputy Collector dated 28.02.2013
and 03.09.2015 respectively had been set aside qua Survey No. 730 i.e the
land in question only.
13.1 It would appear that the petitioners had preferred a review
application in order dated 04.01.2017 inter alia for a clarification that the
orders passed by the Mamlatdar and Deputy Collector dated 28.02.2013 and
03.09.2015 respectively, had stood confirmed with regard to land bearing
revenue survey no. 731 i.e the land which was of the original ownership of
respondent no. 6.6-6.1 to 6.5. The Gujarat Revenue Tribunal vide order
dated 22.05.2017, had allowed the revision application and had observed
that orders of the Mamlatdar and Deputy Collector referred to hereinabove
are confirmed qua revenue entry no. 731.
14. The petitioners being aggrieved by order dated 04..1.2017 passed by
the Gujarat Revenue Tribunal setting aside the orders passed by Mamlatdar
and Deputy Collector qua survey no. 730 Village Bill, Taluka: District:
Vadodara, have preferred the present writ petition.
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THE PRELIMINARY OBJECTION BY RESPONDENTS NO. 5.1 TO 5.4 .
15. At the outset before recording the submissions of the learned
Advocates for the parties and dealing with the same, a preliminary objection
raised on behalf of respondents no. 5.1 to 5.4 is required to be dealt with.
It is the case of respondent no. 5. 1 to 5. 4 that while the order impugned
was passed by Gujarat Revenue Tribunal on 04.01.2017 a review
application had been filed by the petitioners herein and whereas the same
came to be allowed by the Gujarat Revenue Tribunal vide order dated
22.05.2017. It is submitted that while the present writ petition was filed on
12.06.2017 and an order for removal of office objections was passed on
06.07.2017, the respondents no. 5.1. to 5.4 had issued a public notice dated
06.07.2017 inviting claims/objections to proposed sale of the land in
question bearing block no. 730 where the petitioners had not objected. It is
submitted that respondents no. 5.1 to 5.4 had thereafter sold the land in
question to two persons vide registered sale-deed dated 14.07.2017. It is
submitted that after the writ petition had been notified for hearing, vide an
order dated 01.09.2017 a learned Co-ordinate Bench had taken a note of the
fact that the land has already been transferred by the said respondents to
some third parties. It is submitted that the petitioners having not joined the
third parties inspite of knowledge of the fact of sale of the land and since
the purchasers of the land would be vitally concerned in the outcome of
the litigation, therefore, they were proper and necessary parties. It is
submitted that since such parties were not joined, therefore, the present writ
petition should be dismissed only on the ground of the non- joiner of the
necessary parties in whose absence no orders could be passed.
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15.1 The preliminary objection had been vehemently contested by learned
Advocate for the petitioners. It is submitted by the learned Advocate that
the third party purchasers are not required to be joined since the transfer is
pendent lite with a view to frustrate the rights of the petitioners and with a
view to overreach the judicial process. It is submitted that the present writ
petition was filed on 12.06.2017 and a copy of the petition was served upon
respondent no. 5 who had filed a Caveat. The respondents no. 5.1 to 5.4,
upon coming to know about filing of the writ petition, had executed
registered sale-deed on 14.07.2017 even before the petition could be heard.
It is submitted more particularly relying upon pedigree chart of family of
original respondent no. 5 that the purchasers Riteshkumar Ghanshyambhai
Patel and Ritikaben Ghanshyambhai Patel, happened to be nephew and
niece of respondent no. 5. It is submitted in this regard that father of the
purchaser of the property Ghanshyambhai Patel was son of one Revandas
Shankarbhai Patel. It is submitted that father of respondent no. 5 Shanabhai
Shankarbhai and the above referred Revandas Shankarbhai were brothers
and thus Ghanshyambhai was cousin of Shantaben respondent no. 5 and
thus the purchasers were nephew and niece of the original respondent no. 5.
It is further pointed out that Ghanshyambhai Revandas Patel is real brother
of Power of Attorney Holder of respondent no. 5 - Rajendrabhai Revandas
Patel through whom the respondents no. 5.1 to 5.4 are defending the
present petition and whereas it was the same Power of Attorney who had
sold the land to his niece and nephew. It is submitted that the said transfer
is nothing but a sham transaction pending the present petition with a view
to frustrate the proceedings itself and whereas the purchasers of the
property being deemed to be aware about the pending proceedings were
required to approach this Court for being joined as a party respondent and
not doing so would be at their peril. Reliance is placed in this regard to a
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decision of the Hon'ble Supreme Court in case of H. Anjanappa &b Ors. v.
A. Prabhakar & Ors. - 2025 INSC 121 dated 29.01.2025 .
16. Considering the submissions made by learned Advocate for both the
parties and having examined the record in this regard it appears that the
present petition was presented before the registry of this Court on
15.06.2017. The petition had been registered on 05.07.2017. It also appears
that since the petition being filed with office objections, an order had been
being passed by a learned Co-ordinate Bench on 06.07.2017 directing
removal of office objections and whereas office objections had been
removed on 21.07.2017 after which matter had been given a regular number.
Thereafter a copy of the petition had been submitted to the office of the
Government Pleader on 24.07.2017 and a copy had been served to the
Caveators on 04.08.2017.
16.1 It also appears that caveat had been filed by the respondents no. 5.1
to 5.7 on 06.07.2017. It would thus appear that the respondents no. 5.1 to
5.4 were clearly anticipating filing of the present petition. Having filed a
Caveat on 06.07.2017, the transfer of the subject land by respondents no.
5.1 to 5.4 on 14.07.2017 was nothing but a mere facade to make a
submission before this Court that equities have changed since the land had
been sold even before the petition had been filed/heard. Again what would
be material here is that one could not find any fault with the petitioners
inasmuch as the petitioners could not be alleged to have deliberately delayed
filing of present petition inasmuch as the order in review was passed by the
Gujarat Revenue Tribunal on 22.05.2017 whereas the petition was
presented to the registry of this Court on 15.06.2017 i.e within less than a
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month of the order in question. It appears that the matter had been
examined and office objections were removed later on but in the meanwhile
caveat had been filed by the private respondents. Thus this Court is inclined
to accept the submissions made by learned Advocate for the petitioners that
the entire transfer was a device undertaken to ensure that the proceedings
are frustrated.
17. Again the glaring aspect of the issue being that the persons who
purchased the property in question were the relatives of original respondent
no. 5, being children of her cousin brother and second cousins of
respondents no. 5.1 to 5.4 who had sold the property through their power
of attorney. Again the purchasers of the property were none else than the
direct nephew and niece of the Power of Attorney himself. The closeness
of relation, being a clear pointer to the fact that the transaction was a
design to ensure that a submission could be made as regards respondents
no. 5.1 to 5.4 not having any right in the property in question.
18. Having held that the transfer was a facade to frustrate the
proceedings now this Court will examine the aspect as to whether the
petition is required to be dismissed on the preliminary objection of non-
joinder of necessary parties. In this regard this Court seeks to rely upon
observations of the Hon'ble Supreme Court in case of H. Anjanappa
(supra), paragraph no. 58 of the said decision, being relevant for the present
petition is reproduced hereinbelow for benefit :
"58. From a conspectus of all the aforesaid judgments, touching
upon the present aspect, broadly, the following would emerge:
i. First, for the purpose of impleading a transferee pendente
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lite, the facts and circumstances should be gone into and
basing on the necessary facts, the Court can permit such a
party to come on record, either under Order I Rule 10 CPC or
under Order XXII Rule 10 CPC, as a general principle;
ii. Secondly, a transferee pendente lite is not entitled to come
on record as a matter of right;
iii. Thirdly, there is no absolute rule that such a transferee
pendente lite, with the leave of the Court should, in all cases,
be allowed to come on record as a party
iv. Fourthly, the impleadment of a transferee pendente lite
would depend upon the nature of the suit and appreciation of
the material available on record;
v. Fifthly, where a transferee pendente lite does not ask for
leave to come on record, that would obviously be at his peril,
and the suit may be improperly conducted by the plaintiff on
record;
vi. Sixthly, merely because such transferee pendente lite does
not come on record, the concept of him (transferee pendente
lite) not being bound by the judgment does not arise and
consequently he would be bound by the result of the litigation,
though he remains unrepresented;
vii. Seventhly, the sale transaction pendente lite is hit by the
provisions of Section 52 of the Transfer of Property Act; and,
viii. Eighthly, a transferee pendente lite, being an assignee of
interest in the property, as envisaged under Order XXII Rule
10 CPC, can seek leave of the Court to come record on his
own or at the instance of either party to the suit."
[Emphasis supplied]
18.1 A bare perusal of the law laid down by the Hon'ble Supreme Court,
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more particularly insofar as findings no. 5. 6, and 7 of paragraph no. 58
above, would unequivocally reveal that a transferee pendente lite not seeking to
be joined as party in the proceedings would be at his peril and the suit could
be conducted though improperly by the plaintiff. The Hon'ble Supreme
Court has further laid down that a transferee pendete lite deciding not to join
the proceedings would not be heard to state that he was not bound by the
judgement though he was unrepresented in the said proceedings. The
Hon'ble Supreme Court has further laid down that transferee pendete lite is hit
by provisions of Section 52 of the Transfer of Property Act.
18.2 At this stage, this Court craves leave to refer to and reproduce Section
52 of the Transfer of Property Act as below:
"52. Transfer of property pending suit relating thereto-
During the pendency in any Court having authority within the
limits of India excluding the State of Jammu and Kashmir or
established beyond such limits by the Central Government of
any suit or proceeding which is not collusive and in which any
right to immoveable property is directly and specifically in
question, the property cannot be transferred or otherwise dealt
with by any party to the suit or proceeding so as to affect the
rights of any other party thereto under any decree or order
which may be made therein, except under the authority of the
Court and on such terms as it may impose.
[Explanation.--For the purposes of this section, the pendency
of a suit or proceeding shall be deemed to commence from the
date of the presentation of the plaint or the institution of the
proceeding in a court of competent jurisdiction, and to
continue until the suit or proceeding has been disposed of by a
final decree or order, and complete satisfaction or discharge of
such decree or order, has been obtained, or has become
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unobtainable by reason of the expiration of any period of
limitation prescribed for the execution thereof by any law for
the time being in force.
The explanation to Section 52, where the commencement of
proceedings are deemed to be from the date of presentation or
institution, leaves no room for doubt that the writ petition was
pending on the date of transfer and thus the transfer being pendente
lite would be hit by the bar of Section 52. The petition being
presented on 15.06.2017 and the sale transaction being dated
14.07.2017, i.e. after the presentation, hence the applicability of
Section 52 here would be an unequivocal position.
19. Now coming to conclusion no. 8, whereby the Hon'ble Supreme
Court has laid down that a transferee pendete lite, is an assignee of interest in
the property and as per order XXII Rule 10 CPC, therefore the transferee
pendente lite and either of the party i.e petitioners or respondents could seek
leave of the Court to join such a transferee pendente lite. Thus the onus of
joining the transferee pendente lite could not be laid upon the petitioners/
plaintiff only rather the onus is as much on the transferee pendete lite as well
as the transferor pendente lite who could also seek for a transferee to be joined
on record.
20. A conspectus of the findings of the Hon'ble Supreme Court in
juxtaposition with the facts of the case, would lead to an inevitable
conclusion that though the respondents no. 5.1 to 5.4 had sold the land the
said transfer was pendente lite and hence if the transferee himself does not
seek to be joined as a party to the proceedings he would be doing so at his
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own peril. The transferee could not be heard to state that he would not be
bound by the judgement in such a proceedings though he had been
unrepresented. The transfer itself would be hit by the provisions of Section
52 i.e. the property itself could not have been transferred so as to affect the
rights of the other party without the leave of the Court. Most importantly
no preliminary objection would lie for non-joinder of parties since the onus
was equally upon the transferee pendente lite, as well as the upon the
respondents who had sold the land to the transferees to have moved an
application for joining the transferees as party to the proceedings. The onus
not being on the petitioner alone, non- joinder would not be fatal to the
petition. Furthermore since the transfer itself as it appears to this Court is a
sham transaction, therefore even on equable consideration the writ court
would not hear a preliminary objection by a party who had entered in such a
sham transaction to dismiss the petition on the ground of non- joinder as
party to whom the land was sold was not brought on record. For the above
reasons the preliminary objection is rejected.
THE SUBMISSIONS
21. As far as the merits are concerned, the learned Advocate Mr. Hriday C.
Buch with learned Advocate Ms. Himani Kini for the petitioners would
seek to assail the impugned order passed by the Gujarat Revenue Tribunal
dated 04.01.2017 inter alia on the ground that the Gujarat Revenue Tribunal
had committed grave error both on law and on facts by setting aside the
order passed by the Mamlatdar as well as the Deputy Collector dated
28.02.2013 and 03.09.2015 respectively.
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22. Learned Advocate would submit that the Gujarat Revenue Tribunal
has failed to appreciate that entry no. 2301 dated 29.12.1980 had never been
challenged by respondent no. 5. That after 10 years of the entry,
proceedings had been initiated were under the Tenancy Act at the instance
of the Talati, Gram Panchayat, Bill and whereas proceedings are initiated
under Section 32(G) of the Act vide Tenancy Case No. 6463 of 1991
whereby purchase price was fixed and paid. It is submitted that the said
order had never been challenged by the respondent no. 5 or her successors
at any point of time. It is submitted that eventhough an order is not made in
good faith, yet, the same until it is set aside a Superior Court or Tribunal,
would hold the field. Likewise assuming without admitting that order dated
26.12.1991 was bad in law or facts the same had never been questioned by
the respondents no. 5 or 5.1 to 5.4, therefore they would be bound by such
order and the doctrine of acquiescence, waiver and laches would come
against the said respondents. It is submitted that inspite of such a position,
Gujarat Revenue Tribunal vide the impugned order, has not considered the
said aspects.
23. It is further submitted that the respondents no. 5 and 5.1 to 5.4 could
not be permitted to take varying stands as per their convenience. It is
submitted that while the order of 1991 declaring the petitioners as tenants
and fixing the purchase price had not been challenging by the said
respondents, the same having been questioned by respondents no. 6 and
vide order dated 25.06.1999, the Deputy Collector having directed forfeiture
of the land, the same having been challenged before the Gujarat Revenue
Tribunal, in proceedings before the Gujarat Revenue Tribunal, the
respondent no. 5 through the very Power of Attorney Holder through
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whom respondents no. 5.1 to 5.4 are defending the present petition, had
filed an affidavit whereby the respondent no. 5 had confirmed the fact that
the petitioners were infact tilling the land in question since the year 1979-80
and that the respondent no. 5 would not have any objection if the order
passed by the Deputy Collector is set aside and the order passed by the
Mamlatdar and ALT of the year 1991 is restored. As a matter of fact is is
submitted that before the Gujarat Revenue Tribunal though revision
applications had been filed by respondents no. 5 and 6 separately along with
Revision Application by the present petitioners, vide the affidavit referred to
hereinabove the respondents no. 5 and 6 had requested that there revisions
may be permitted to be withdrawn and they had submitted that the revision
application by the petitioners may be allowed. It is submitted that having
taken such a stand, it would not be now open for the respondent no. 5 as
well as respondents no. 5.1 to 5.4 to turn around and contend otherwise.
24. It is further submitted by the learned Advocate that the proceedings
had been remanded by the Gujarat Revenue Tribunal vide the order dated
17.11.2008 to the Deputy Collector who vide order dated 06.06.2009 had
remanded to the Mamlatdar, who had closed the remand case on the ground
of deletion of Section 32(O) of the Tenancy Act and whereas the said
order had been set aside by the Deputy Collector vide order dated
17.05.2012 at the instance of the petitioners and whereas the terms of
remand had been fixed i.e to decide whether the petitioners were original
agriculturists or not. It is submitted in this regard that the impugned order
passed by the Gujarat Revenue Tribunal dated 04.01.2017 presents a very
incongruous situation inasmuch as the petitioners have been declared as
tenants of land bearing survey no. 731 as belonging to respondents no. 6
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herein and whereas on the grounds mentioned in the order the petitioners
have been denied tenancy rights as far as land bearing survey no. 730 is
concerned. It is submitted that the scope of the inquiry being limited, as
rightly held by the Mamlatdar vide order dated 28.02.2013, while the names
of the petitioners figured in the revenue record with regard to an ancestral
land at Village: Udhmatpura Taluka: Thasra yet, the land did not belong to
the family of the petitioners since the year 1961 when the land had been
sold to a tenant who was holding the land under the provisions of the
Tenancy Act. It is submitted that the Mamlatdar had rightly observed that
since the Tenancy Act does not require a tenant to be an agriculturist, the
entire conspectus was erroneous and whereas it is submitted that this
Court may set aside the order passed by the Gujarat Revenue Tribunal.
25. It is further submitted that the Tribunal has committed a very grave
error by holding that the proceedings under Section 70B were never
undertaken since on one hand the Tribunal has held that the petitioners not
having any tenancy rights as regards the land bearing Survey No. 730 and on
the other hand, the very orders of the Deputy Collector and the Mamlatdar
which have been quashed by the GRT insofar as the said survey number is
concerned has been confirmed by the GRT insofar as the land bearing
survey no. 731 is concerned. It is submitted that the findings of the Gujarat
Revenue Tribunal being completely incongruous, therefore also, the order of
the Gujarat Revenue Tribunal cannot be sustained and may be set aside by
this Court.
26. On the other hand the present petition has been vehemently opposed
by learned Advocate Mr. A.S. Vakil appearing on behalf of respondents no.
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5.1 to 5.4. It is submitted by learned Advocate Mr. Vakil that the land in
question i.e block no. 730 had been purchased by father of respondent no.
5 and upon demise of the purchaser, the land came to the share of
respondent no. 5 and whereas mutation entry no. 2040 dated 24.11.1975 had
been effected in the revenue record with regard to the same. Learned
Advocate would submit that the name of the petitioners could not be stated
to be mutated vide entry no. 2301, since the consent of respondent no. 6
was reflected in the entry with regard to lands bearing survey no. 1026, 1027
and 1028 whereas the said respondent could not have given consent for
entering the name of the petitioners in survey no. 1025 ( block no. 730) in
the column of "khedhak-right to till." It is submitted that as such nothing
turns on entry no. 2301 since the question of tenancy could be decided by
'appropriate authorities'/Courts' exercising jurisdiction under the provisions
of the Tenancy Act and whereas a mere entry under the provisions of the
Gujarat Land Revenue Code and could not decide the tenancy rights of the
parties.
27. It is further submitted by learned Advocate that while the first
Tenancy Case i.e Tenancy Case No. 6463 of 1991 was registered upon the
letter of the Talati cum Mantri, Bill Gram Panchayat, the same had been
registered under Section 32(G) of the Tenancy Act and whereas there were
no inquiry initiated under Section 70B of the Tenancy Act. It is submitted
that jurisdiction to decide purchase price under Section 32(G) is derived
only after an inquiry/decision is taken under Section 70B as to whether the
petitioners are tenants or not. It is further submitted that as such order
dated 26.12.1991 passed by the Mamlatdar and ALT, was based upon
fraudulent proceedings since order dated 26.12.1991 records the statement
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of respondent no. 5 of the very date, who was otherwise not in the country
on the said date. It is submitted that the entire proceedings having happened
fraudulently in absence of respondent no. 5, the very order dated 26.12.1991
itself was vitiated.
27.1 It is further submitted that while a contention as regards order dated
26.12.1991 i.e the first order by the Mamlatdar and ALT not having been
interfered by any authority till date, has been made by the learned Advocate
for the petitioner and whereas it is submitted in this regard that order dated
06.06.2009, has the effect of obliterating order dated 26.12.1991. It is
submitted that the Deputy Collector having remanded the case to the
Mamlatdar and ALT, to decide afresh, the effect thereof would be that order
dated 26.12.1991 would become ineffective. It is further submitted that the
said argument would get impetus if one considers order dated 28.02.2013
passed by the Mamlatdar and ALT which also directs restoration of order
dated 26.12.1991. It is submitted that the authorities had correctly
understood the position as regards the order having been interfered with
and hence it could not be stated that order dated 26.12.1991 had never been
interfered with by any authority.
27.2 It is further submitted that perusal of the observations of the Deputy
Collector vide order dated 25.06.1999 in Tenancy Appeal No. 167 of 1998
would reveal that the respondent no. 5 was indeed a party ( appellant) in the
said proceedings. Thus it would be erroneous, according to the learned
Advocate, to contend that order dated 26.12.1991 had never been
challenged. By the respondent no. 5.
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27.3 It is further submitted by the learned Advocate with regard to the
affidavit submitted by Power of Attorney Holder of the respondent no. 5
before the Gujarat Revenue Tribunal in the first round of Revision
Applications i.e. Revision Application No. 429 of 1999, that none of the
authorities where the affidavit had been pressed into service including the
Gujarat Revenue Tribunal vide its decision dated 17.11.2008, or before
Deputy Collector in remand proceedings being Tenancy Appeal No. 66 of
2008 vide order dated 06.06.2009 while remanding the matter back to the
Mamlatdar and ALT, did not place any reliance upon the same. It is further
submitted that in any case in the impugned order dated 04.01.2017, the
Gujarat Revenue Tribunal has also not taken any cognizance of the said
affidavit. It is submitted that, the said affidavit would not have any legal
consequences much less have legal consequences of dispensation of
proceedings under Section 70B of the Tenancy Act.
28. Learned Advocate would further submit that as such, order passed by
the Mamlatdar and ALT, pursuant to remand order dated 06.06.2009, was
just and proper and whereas it is submitted in this regard that the
Mamlatdar pursuant to order dated 06.06.2009 by the Deputy Collector
remanding the case to the Mamlatdar had closed the proceedings, in view
of deletion of Section 32(O) from the Gujarat Tenancy and Agricultural
Lands Act. It is submitted that the Amendment Act 2009 whereby section
32(O) was deleted, did not provide for any substitution clause. It is
submitted that effect of deletion of Section 32(O) from the statute book
would be as if, the said section had never figured in the statute at all. It is
submitted that Section 32 (O) which had provided for protection to tenants
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whose tenancy is created after the tillers day and whereas while the said
section had undergone changes but it had stood deleted from the statute
book with effect from 08.07.2009. It is submitted that upon deletion of
Section 32(O), the legislature had impliedly provided against creation of
tenancy after tillers day. It is further submitted that appeal preferred by the
petitioners against order dated 19.04.2010 being Tenancy Appeal No. 17 of
2010 was under Section 74 of the Tenancy Act and whereas it is submitted
that upon the section 32(O), being deleted from the statute, it also stood
deleted from the array of orders, against which challenge could be mounted
under Section 74 of the Tenancy Act. It is submitted that since the challenge
was to an order under Section 32(O), therefore, the Deputy Collector, could
not have considered the said appeal as the same was not permissible
statutorily and hence the order passed by the Deputy Collector dated
17.05.2012, was completely nonest.
28.1 It is submitted that while order dated 17.05.2012 directed the
Mamlatdar to hear the case afresh, for the first time the Mamlatdar had
registered a case under Section 70B of the Tenancy Act and whereas it is
submitted that inquiry as required under the Tenancy Act under Section 70B
had been initiated for the first time in the month of May 2012 after Section
32(O) stood deleted from the statute book. It is further submitted that while
the order of the Deputy Collector dated 17.05.2012 is relied upon to submit
that the said order lays down contours of remand proceedings yet, in the
remand proceedings, the Mamlatdar and the Deputy Collector have
observed that petitioners are not original agriculturalists more particularly
since the land which was held by the family of the petitioners, had been
purchased by tenants under the provision of the Tenancy Act. Learned
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Advocate would further submit that the Gujarat Revenue Tribunal has
rightly set aside the orders passed by the Mamlatdar dated 28.02.2013 and
the Deputy Collector dated 03.09.2015 and whereas no interference
whatsoever may be done by this Court in the said decision.
29. Learned Advocate Mr. Vakil would rely upon judgement of this
Court in case of Desai Navinkant Kesarlal and Ors. v. Prabhat Kabhai and
Ors. reported in 1968 (9) GLR 694, judgement of this Court in case of
Narayanprasad Haribhai Majmudar vs. Merubhai Rayabhai and Anr.
reported in 1967 GLR 897, judgement of this Court in case of Dahyabhai
Waghjibhai vs. Babubhai Jethabhai Parmar & others reported in 1984 G.L.H
881, decision of Hon'ble Supreme Court in case of Commissioner of
Customs ( Preventive) vs. M/s Aafloat Textiles (I) Private Limited reported
in 2009 (11) SCC 18, decision of the Hon'ble Supreme Court in case of
Gurcharan Singh Baldev Singh vs. Yashwant Singh and Ors. reported in
1992 (1) SCC 428, decision in case of New India Assurance Company
Limited vs. C. Padma & Anr. reported in 2003 (7) 713 and decision of the
Hon'ble Supreme Court in case of Sushila Gupta vs. Tax Recovery Officer
and others reported in 2019 (11) SCC 795 in support of his submissions.
30. Learned Assistant Government Pleader Mr. J.K. Shah had been asked
to assist the Court as amicus curiae more particularly on the aspect of the
effect of deletion of Section 32(O) from the Tenancy Act and whereas
learned AGP would submit that Section 32(O) as it existed before 2009, had
the effect of creating a tenancy in favour of a tenant who was tilling the
land after the tillers day. It is submitted that Section 32(O) envisaged that if
a tenancy was created after the tillers day, then upon expiry of one year from
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the day of creation the tenant shall be deemed to have purchased the land
from the landlord. It is submitted that section 32(O) envisaged automatic
purchase by a tenant who had remained as such for one year after the tillers
day. It is submitted that deletion of Section 32(O) would not have any
effect on the present proceedings since the claim of the tenant under
Section 32(O) would be as regards becoming a deemed purchaser upon
completing one year as tenant. It is submitted that Section 32(O) and
Section 70B operated in different arenas. Section 70B envisages the
Mamlatdar and ALT deciding whether a person is or was a tenant etc.
whereas Section 32(O) protected a tenant whose tenancy had been created
after the tillers day to the extent that upon a year passing after creation of
tenancy, the land would be deemed to have purchased by the tenant. It is
submitted that in the facts of the present case, deletion of Section 32(O)
would not have any effect whatsoever on the proceedings pending.
31. Learned AGP Mr. Kanara on behalf of respondent - State would
submit that Section 32(O) of the Tenancy Act was one of the modes of
claiming tenancy rights whereas whether the person was a tenant or not
would be examined and decided by appropriate authority in an inquiry under
Section 32(G). Learned AGP would submit that the GRT vide the
impugned order has completely overlooked the above aspect and therefore,
the order passed by the Gujarat Revenue Tribunal would be unsustainable.
THE DISCUSSION
32. Heard learned Advocates for the respective parties and perused the
documents on record.
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33. While the present petition assails an order passed by the Gujarat
Revenue Tribunal dated 04.01.2017 setting aside orders passed by the
Mamlatdar dated 28.02.2013 and the Deputy Collector dated 03.09.2015
more particularly whereby the petitioners had been declared as tenants of
the property in question, yet, to this Court the issue in the present petition is
not limited to examining the legality and validity of the impugned order in
question. Over and above examining the legality and validity of the order
passed by the GRT in view of the peculiar facts of the case at the first
instance what is required to be considered is whether respondents no. 5. 1 to
5.4 should be entitled to oppose the present petition in particular and did
the respondent no. 5 or respondents no. 5. 1. to 5.4. have any right to
contest litigation in its later stages.
33.1 Such an issue is required to be gone into since the petitioners have
raised the contention of estoppel,acquiescence and doctrine of approbate
and reprobate.
UNDENIABLE FACTS
34. In this regard certain undeniable facts are required to be noted. The
word "undeniable" has been used by this Court consciously and deliberately
since using the word "admitted " would be misinterpreted. The undeniable
aspects being
(1) entry no. 2301 mutated in the revenue record on 29.12.1980 still
remaining unchallenged. While the private respondents seek to take
varied stands against the said entry or the effect thereof, yet, fact
remains that vide the entry, name of the petitioners were entered in
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the revenue record as cultivators/tenants of the land in question.
(2) order dated 26.12.1991 whereby after inquiry under Section 32(G)
purchase price had been fixed for the land in question by the
Mamlatdar & ALT having not been challenged by respondent no. 5
or her successors till date. While an ambiguous submission was
attempted to be made that possibly respondent no. 5 was also an
appellant in Tenancy Appeal No. 167 of 1998 whereby order dated
26.12.1991 had been challenged, yet a perusal of the order passed in
Tenancy Appeal No. 167 of 1998 clearly reveals that it was only the
original respondent no. 6 who had challenged order dated 26.12.1991
and whereas respondent no. 5 was not an appellant in such a
challenge. It would also clearly appear that at no point of time the
said order, i.e. the principal order/central order of this proceedings
had been challenged by the respondent no. 5 or her successors. This
undeniable fact therefore, begs the question as to whether in absence
of challenge to order dated 26.12.1991, would the respondents no. 5-
5.1 to 5.4 be heard in any later proceedings arising or connected with
the said order.
(3) Revision Application No. 429 of 1999 inter alia preferred by
the respondent no.5. It would appear that order dated 26.12.1991 had
been challenged by respondent no. 6 by preferring Tenancy Appeal
No. 167 of 1998 before the Deputy Collector ( L. R & A), Vadodara
and whereas vide order dated 25.06.1999, the Deputy Collector had
directed vesting of the lands with the State Government under
Section 84(C). It would appear that while respondent no. 6 as
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appellant in Tenancy Appeal No. 167 of 1998 had a reasonable cause
to be aggrieved by the order of vesting of the parcel of land
originally held by him as landlord, since he had already preferred
appeal challenging the order of the year 1991, respondent no. 5
having joined the appeal as a party appellant would not have
benefited in any manner whatsoever upon the order of vesting being
set aside since the land would revert back to the petitioners as
tenants. Thus the only plausible explanation for respondent no. 5 to
have preferred an appeal was to support the petitioners herein, and
whereas the later action of the respondent no. 5 confirmed the said
aspect.
(4) Affidavit dated 12.06.2008 inter alia filed by respondent no. 5
through her power of attorney holder before the GRT in Revision
Application No. 411 of 1999 and 429 of 1999. The affidavit though
has been attempted to be subsequently questioned on its genunity
etc., and whereas while it is attempted to be submitted before this
Court that affidavit would not entail any legal consequences yet, there
is no denial from the fact that no proceedings whatsoever have been
initiated by the Power of Attorney Holder of respondent no. 5 as
well as respondent no. 5.1. to 5.4 on the ground that the signature of
the Power of Attorney Holder was forged in the said affidavit. The
affidavit very clearly and unequivocally stating that respondent no. 5
was never a party to Tenancy Appeal No. 167 of 1998 and even in the
Revision Application No. 429 of 1999 preferred before the Gujarat
Revenue Tribunal the respondent no. 5 had joined only on account of
the insistence by respondent no.6. It is very unequivocally stated that
since respondent no. 5 did not prefer any appeal (against order dated
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26.12.1991), therefore she was not entitled to legally prefer the
revision (against order dated 25.06.1999). It is further averred that all
contentions regarding her absence taken before the Deputy Collector
are completely false and would not bind the respondent no. 5. The
affidavit further states that even as on date respondent no. 5 confirms
the statement given by respondent no. 5 dated 26.12.1991 in Tenancy
Case No. 6463 of 1991 and furthermore it is averred by respondent
No. 5 that petitioners were tilling her land and they were rightly
declared as tenants of the land in question. The affidavit further
clarifies that respondent no. 5 had even objected to respondent no. 6
filing Tenancy Appeal No. 167 of 1998 and it is for such reason that
respondent no. 5 had refused to join in the proceedings as a party and
therefore, the respondent no. 5 did not have any legal right to file the
revision application but she had joined the proceedings against her
own will. Respondent no. 5 further deposes that in view of the above
either respondent no. 5 may be permitted along with respondent no.
6 to withdraw Revision Application No. 429 of 1999 and the revision
application preferred by the petitioners may be allowed.
4(a) The said affidavit in the considered opinion of this Court,
essentially seals the fate of respondent no. 5 and respondents no. 5.1
to 5.4 as regards the present litigation. Again except for obliquely
questioning the signature of Power of Attorney Holder of
respondent no. 5 in the said affidavit, no concrete steps had ever been
taken till date. Further the substantive aspect of the respondent no. 5
having not preferred any appeal before the Deputy Collector against
order dated 26.12.1991 or the admission that petitioners are tilling her
land and they were rightly declared as tenants etc., are extremely
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glaring and no attempt has been made to repudiate the same except
by obliquely questioning the signature of the Power of Attorney in
the said affidavit.
(5) Order dated 06.06.2009 passed by the Deputy Collector. It
would appear that Revision Applications No. 411 and 429 of 1999
were decided vide common order dated 17.11.2008 and whereas the
order passed by the Deputy Collector in Tenancy Appeal No. 167 of
1998 had been set aside and the case had been remanded to the
Deputy Collector for appropriate decision on certain terms as had
been mentioned in the order of the Gujarat Revenue Tribunal. In the
remand proceedings, while the respondent no. 5 had not made any
attempt to rescind from the affidavit dated 12.06.2008 submitted
before the Gujarat Revenue Tribunal, rather before the Deputy
Collector, the respondent no. 5 through her Power of Attorney had
reiterated her stand by relying upon the very selfsame affidavit, which
affidavit has been quoted in extenso by the Deputy Collector. Thus
the aspect of the genunity of the affidavit is established beyond
doubt since the respondent no. 5 who was being represented in the
said proceedings i.e. the remand proceedings through the very Power
of Attorney Holder, did not dispute the averments of the affidavit
rather the affidavit itself had been reiterated by the respondent no. 5
before the Deputy Collector.
(6) Order dated 19.04.2010 in Remand Case No. 64 of 2009. Vide
order dated 06.06.2009 the Deputy Collector had remanded the
matter to the Mamlatdar and ALT and whereas in the said remand
proceedings being Remand Case No. 64 of 2009, the Mamlatdar had
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passed order on the above date, closing the proceedings on the
ground of deletion of Section 32(O) of the Tenancy Act. The said
order though drops the tenancy proceedings altogether, is referred
since it is in this proceedings that for the first time respondent no. 5
through her Power of Attorney had taken a contrary stand that the
petitioners were never tenants of the property and had taken a stand
for the first time as regards her alleged absence at the stage of
passing of order dated 26.12.1991.Thus the respondent no. 5 without
substantially challenging order dated 26.12.1991 had sought to
oppose tenancy claim of the petitioners after approximately 18-19
years. Interestingly the affidavit dated 12.06.2008 filed in the first
round of proceedings, has not been repudiated by the power of
attorney holder of the respondent no. 5 even in the proceedings
before the Mamlatdar.
(7) Order dated 09.10.2012 in Revision Application No.
TEN/BA/173/2012 by the Gujarat Revenue Tribunal. While the
Mamlatdar vide order dated 19.04.2010 had closed the tenancy
proceedings, the petitioners had challenged the same before the
Deputy Collector by preferring Tenancy Appeal No. 72 of 2010 and
vide order dated 17.05.2012 the Deputy Collector had set aside the
order passed by the Mamlatdar and had allowed the appeal while
remanding the matter back to the Mamlatdar for a fresh decision.
Relevance of the revision application being that for the first time
after 21 years from order dated 26.12.1991, the respondent no. 5 had
preferred a substantive proceedings. Again what would be relevant to
mention is that the Gujarat Revenue Tribunal vide the said order had
rejected the revision application against the order passed by the
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Deputy Collector by observing that all parties would get appropriate
opportunity in the remand proceedings. The respondent no. 5 had
not carried the same any further. Thus it could be observed that the
petitioners had given up their challenge qua order dated 19.04.2010
passed by the Mamlatdar.
(8) The aspect of the respondents no. 5.1 to 5.4 having contested
the litigation tooth and nail even after sale of the subject land. The
general proposition being that any person who enters into a
transaction pendente lite does so it his own peril and whereas the third
party purchaser having purchased the property in question had
chosen not to join the litigation whereas respondents no. 5.1 .to 5.4
having raised the preliminary objection as regards non joinder of
necessary party, have contested the present petition vehemently. To
this Court it would appear that the respondents no. 5.1 to 5.4 having
sold the land in question were not required to contest the litigation
more particularly on the merits of the issue. No document had been
produced before this Court whereby even after sale of the property,
the onus of contesting the litigation remained on the original owners
i.e the seller i.e. respondents no. 5.1 to 5.4. To this Court it would
appear that the respondents no. 5. 1 to 5.4 were not required to be
heard at all yet, to ensure fairness and adequate opportunity, the said
respondents were given abundant opportunity.
(9) Most importantly the litigation qua land bearing Block no. 730,
i.e. land originally belonging to respondent no. 5, being a non-existent
litigation or a nonest litigation post the order of GRT dated
17.11.2008 in the first round before the GRT. This because what was
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under challenge before the GRT in Revision Application No. 429 of
1999 and 411 of 1999, i.e. where order dated 17.11.2008 was passed
was an order dated 25.06.1999 in Tenancy Appeal No. 167 of 1998.
In Tenancy Appeal No. 167 of 1998, the respondent no. 6 had
challenged order of the Mamlatdar and ALT dated 26.12.1991 in
Tenancy Case No. 6463 of 1991, whereby the petitioners were
declared as tenants and neither the respondent no. 5 was an appellant
therein or a party to the proceedings. The GRT vide order dated
17.11.2008 had set aside order of the Deputy Collector dated
25.06.1999 and had remanded the matter back to the Deputy
Collector. In remand while the cause title remained the same as in the
revision application before the GRT but all the parties, more
importantly the petitioners as well as the quasi judicial authorities had
lost sight of the fact the respondent no. 5 was not a party before the
Deputy Collector in Tenancy Appeal No. 167 of 1998 and
consequently in the remand proceedings respondent no. 5 would not
have been joined as a party and certainly not as a party appellant.
While a superior forum would be justified in setting aside an order by
a subordinate forum and remanding the case back on the terms as
may be set out but at the same time the array of parties would remain
the same, i.e. the parties in remand would remain the same as those
who formed part of the original litigation. This aspect not being
appropriately appreciated and respondent no. 5 continuing to be a
part of litigation in which she was never a party has resulted in the
litigation having continued till the High Court in two separate rounds
and in the large number of rounds before the authorities below.
35. Having appreciated the undeniable facts now this Court would
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proceed to examine the relevant issues on merits. At the first instance the
aspect of laches, acquiescence, estoppel as well as approbate and reprobate
would be examined.
ON ACQUIESCENCE, ESTOPPEL, APPROBATE AND REPROBATE
36. At the outset before traversing any further, this Court seeks to refer
to decision of the Hon'ble Supreme Court in case of Union of India v. N.
Murugesan reported in (2022) 2 SCC 25 referred to by learned Advocate
for the petitioners. The said decision being referred to and relied upon in
context of the submission made on behalf of the petitioners as regards
laches, acquiescence, estoppel and doctrine of approbate and reprobate.
Paragraphs no. 20, 21, 22, 23, 24, 25, 26, 27, 27.1, 27.2, 27.3, 28, 28.1, 28.2
and 28.3 being relevant for the present purpose are quoted herein below for
benefit:
Delay, laches and acquiescence
"20. The principles governing delay, laches, and acquiescence are
overlapping and interconnected on many occasions. However, they
have their distinct characters and distinct elements. One can say that
delay is the genus to which laches and acquiescence are species.
Similarly, laches might be called a genus to a species by name
acquiescence. However, there may be a case where acquiescence is
involved, but not laches. These principles are common law principles,
and perhaps one could identify that these principles find place in
various statutes which restrict the period of limitation and create
non-consideration of condonation in certain circumstances. They are
bound to be applied by way of practice requiring prudence of the
court than of a strict application of law. The underlying principle
governing these concepts would be one of estoppel. The question of
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prejudice is also an important issue to be taken note of by the court.
Laches
21. The word "laches" is derived from the French language meaning
"remissness and slackness". It thus involves unreasonable delay or
negligence in pursuing a claim involving an equitable relief while
causing prejudice to the other party. It is neglect on the part of a
party to do an act which law requires while asserting a right, and
therefore, must stand in the way of the party getting relief or remedy.
22. Two essential factors to be seen are the length of the delay and the
nature of acts done during the interval. As stated, it would also
involve acquiescence on the part of the party approaching the court
apart from the change in position in the interregnum. Therefore, it
would be unjustifiable for a Court of Equity to confer a remedy on a
party who knocks its doors when his acts would indicate a waiver of
such a right. By his conduct, he has put the other party in a particular
position, and therefore, it would be unreasonable to facilitate a
challenge before the court. Thus, a man responsible for his conduct
on equity is not expected to be allowed to avail a remedy.
23. A defence of laches can only be allowed when there is no
statutory bar. The question as to whether there exists a clear case of
laches on the part of a person seeking a remedy is one of fact and so
also that of prejudice. The said principle may not have any
application when the existence of fraud is pleaded and proved by the
other side. To determine the difference between the concept of
laches and acquiescence is that, in a case involving mere laches, the
principle of estoppel would apply to all the defences that are available
to a party. Therefore, a defendant can succeed on the various grounds
raised by the plaintiff, while an issue concerned alone would be
amenable to acquiescence.
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24. We have already discussed the relationship between acquiescence
on the one hand and delay and laches on the other.
25. Acquiescence would mean a tacit or passive acceptance. It is
implied and reluctant consent to an act. In other words, such an
action would qualify a passive assent. Thus, when acquiescence takes
place, it presupposes knowledge against a particular act. From the
knowledge comes passive acceptance, therefore instead of taking any
action against any alleged refusal to perform the original contract,
despite adequate knowledge of its terms, and instead being allowed
to continue by consciously ignoring it and thereafter proceeding
further, acquiescence does take place. As a consequence, it
reintroduces a new implied agreement between the parties. Once
such a situation arises, it is not open to the party that acquiesced
itself to insist upon the compliance of the original terms. Hence,
what is essential, is the conduct of the parties. We only dealt with the
distinction involving a mere acquiescence. When acquiescence is
followed by delay, it may become laches. Here again, we are inclined
to hold that the concept of acquiescence is to be seen on a case-to-
case basis.
Approbate and reprobate
26. These phrases are borrowed from the Scots law. They would only
mean that no party can be allowed to accept and reject the same
thing, and thus one cannot blow hot and cold. The principle behind
the doctrine of election is inbuilt in the concept of approbate and
reprobate. Once again, it is a principle of equity coming under the
contours of common law. Therefore, he who knows that if he
objects to an instrument, he will not get the benefit he wants cannot
be allowed to do so while enjoying the fruits. One cannot take
advantage of one part while rejecting the rest. A person cannot be
allowed to have the benefit of an instrument while questioning the
same. Such a party either has to affirm or disaffirm the transaction.
This principle has to be applied with more vigour as a common law
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principle, if such a party actually enjoys the one part fully and on
near completion of the said enjoyment, thereafter questions the
other part. An element of fair play is inbuilt in this principle. It is
also a species of estoppel dealing with the conduct of a party. We
have already dealt with the provisions of the Contract Act
concerning the conduct of a party, and his presumption of
knowledge while confirming an offer through his acceptance
unconditionally.
27. We would like to quote the following judgments for better
appreciation and understanding of the said principle:
27.1.Nagubai Ammal v. B. Shama Rao [Nagubai Ammal v. B.
Shama Rao, 1956 SCR 451 : AIR 1956 SC 593] : (AIR pp. 601-
02, para 23)
"23. But it is argued by Sri Krishnaswami Ayyangar that as
the proceedings in OS. No. 92 of 1938-39 are relied on as
barring the plea that the decree and sale in OS. No. 100 of
1919-20 are not collusive, not on the ground of res judicata
or estoppel but on the principle that a person cannot both
approbate and reprobate. It is immaterial that the present
appellants were not parties thereto, and the decision in
Verschures Creameries Ltd. v. Hull & Netherlands Steamship Co.
Ltd. [Verschures Creameries Ltd. v. Hull & Netherlands Steamship
Co. Ltd., (1921) 2 KB 608 (CA)] , and in particular, the
observations of Scrutton, LJ., at p. 611 were quoted in
support of this position. There, the facts were that an agent
delivered goods to the customer contrary to the instructions
of the principal, who thereafter filed a suit against the
purchaser for price of goods and obtained a decree.
Not having obtained satisfaction, the principal next filed a
suit against the agent for damages on the ground of
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negligence and breach of duty. It was held that such an action
was barred. The ground of the decision is that when on the
same facts, a person has the right to claim one of two reliefs
and with full knowledge he elects to claim one and obtains it,
it is not open to him thereafter to go back on his election and
claim the alternative relief. The principle was thus stated by
Bankes, L.J. : (Verschures Creameries Ltd. case [Verschures
Creameries Ltd. v. Hull & Netherlands Steamship Co. Ltd., (1921) 2
KB 608 (CA)] , KB p. 611)
'... Having elected to treat the delivery to him as an
authorised delivery they cannot treat the same act as a
misdelivery. To do so would be to approbate and reprobate the
same act.'
The observations of Scrutton, L.J. on which the appellants rely
are as follows : (Verschures Creameries Ltd. case [Verschures
Creameries Ltd. v. Hull & Netherlands Steamship Co. Ltd., (1921) 2
KB 608 (CA)] , KB pp. 611-12)
'... A plaintiff is not permitted to "approbate and
reprobate". The phrase is apparently borrowed from the
Scotch law, where it is used to express the principle embodied
in our doctrine of election -- namely, that no party can accept
and reject the same instrument : Ker v. Wauchope [Ker v.
Wauchope, (1819) 1 Bligh PC 1 at p. 21 : 4 ER 1 at p. 8] :
Douglas-Menzies v. Umphelby [Douglas-Menzies v. Umphelby, 1908
AC 224 at p. 232 (PC)] . The doctrine of election is not
however confined to instruments. A person cannot say at one
time that a transaction is valid and thereby obtain some
advantage, to which he could only be entitled on the footing
that it is valid, and then turn round and say it is void for the
purpose of securing some other advantage. That is to
approbate and reprobate the transaction.'
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It is clear from the above observations that the maxim that a
person cannot "approbate and reprobate" is only one
application of the doctrine of election, and that its operation
must be confined to reliefs claimed in respect of the same
transaction and to the persons who are parties thereto. The law
is thus stated in Halsbury's Laws of England, Vol. XIII, p. 464,
para 512:
'On the principle that a person may not approbate and reprobate,
a species of estoppel has arisen which seems to be intermediate
between estoppel by record and estoppel in pais, and may
conveniently be referred to here. Thus a party cannot, after taking
advantage under an order (e.g. payment of costs), be heard to say that
it is invalid and ask to set it aside, or to set up to the prejudice of
persons who have relied upon it a case inconsistent with that upon
which it was founded; nor will he be allowed to go behind an order
made in ignorance of the true facts to the prejudice of third parties
who have acted on it.'
27.2. State of Punjab v. Dhanjit Singh Sandhu [State of Punjab v. Dhanjit
Singh Sandhu, (2014) 15 SCC 144] : (SCC pp. 153-54, paras 22-23 &
25-26)
"22. The doctrine of "approbate and reprobate" is only a
species of estoppel, it implies only to the conduct of parties.
As in the case of estoppel it cannot operate against the
provisions of a statute. (Vide CIT v. MR. P. Firm Muar [CIT v.
MR. P. Firm Muar, AIR 1965 SC 1216] .)
23. It is settled proposition of law that once an order has been
passed, it is complied with, accepted by the other party and
derived the benefit out of it, he cannot challenge it on any
ground. (Vide Maharashtra SRTC v. Balwant Regular Motor Service
[Maharashtra SRTC v. Balwant Regular Motor Service, AIR 1969 SC
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329] .) In R.N. Gosain v. Yashpal Dhir [R.N. Gosain v. Yashpal
Dhir, (1992) 4 SCC 683] this Court has observed as under :
(R.N. Gosain case [R.N. Gosain v. Yashpal Dhir, (1992) 4 SCC
683] , SCC pp. 687-88, para 10)
'10. Law does not permit a person to both approbate and
reprobate. This principle is based on the doctrine of election
which postulates that no party can accept and reject the same
instrument and that 'a person cannot say at one time that a
transaction is valid and thereby obtain some advantage, to
which he could only be entitled on the footing that it is valid,
and then turn round and say it is void for the purpose of
securing some other advantage'.'
***
25. The Supreme Court in Rajasthan State Industrial Development
& Investment Corpn. v. Diamond & Gem Development Corpn. Ltd.
[Rajasthan State Industrial Development & Investment Corpn. v.
Diamond & Gem Development Corpn. Ltd., (2013) 5 SCC 470 :
(2013) 3 SCC (Civ) 153] , made an observation that a party
cannot be permitted to "blow hot and cold", "fast and loose"
or "approbate and reprobate". Where one knowingly accepts
the benefits of a contract or conveyance or an order, is
estopped to deny the validity or binding effect on him of such
contract or conveyance or order. This rule is applied to do
equity, however, it must not be applied in a manner as to
violate the principles of right and good conscience.
26. It is evident that the doctrine of election is based on the
rule of estoppel, the principle that one cannot approbate and
reprobate is inherent in it. The doctrine of estoppel by election
is one among the species of estoppel in pais (or equitable
estoppel), which is a rule of equity. By this law, a person may
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be precluded, by way of his actions, or conduct, or silence
when he has to speak, from asserting a right which he would
have otherwise had."
27.3. Rajasthan State Industrial Development & Investment Corpn. v.
Diamond & Gem Development Corpn. Ltd. [Rajasthan State
Industrial Development & Investment Corpn. v. Diamond & Gem
Development Corpn. Ltd., (2013) 5 SCC 470 : (2013) 3 SCC (Civ) 153]
: (SCC pp. 480-81, paras 15-16)
Approbate and reprobate
15. A party cannot be permitted to "blow hot-blow cold", "fast
and loose" or "approbate and reprobate". Where one
knowingly accepts the benefits of a contract, or conveyance, or
of an order, he is estopped from denying the validity of, or the
binding effect of such contract, or conveyance, or order upon
himself. This rule is applied to ensure equity, however, it must
not be applied in such a manner so as to violate the principles
of what is right and of good conscience. [Vide Nagubai Ammal
v. B. Shama Rao [Nagubai Ammal v. B. Shama Rao, 1956 SCR
451 : AIR 1956 SC 593] , CIT v. V. MR. P. Firm Muar [CIT v.
MR. P. Firm Muar, AIR 1965 SC 1216] , Ramesh Chandra Sankla
v. Vikram Cement [Ramesh Chandra Sankla v. Vikram Cement,
(2008) 14 SCC 58 : (2009) 1 SCC (L&S) 706] , Pradeep Oil
Corpn. v. MCD [Pradeep Oil Corpn. v. MCD, (2011) 5 SCC 270 :
(2011) 2 SCC (Civ) 712] , Cauvery Coffee Traders v. Hornor
Resources (International) Co. Ltd. [Cauvery Coffee Traders v. Hornor
Resources (International) Co. Ltd., (2011) 10 SCC 420 : (2012) 3
SCC (Civ) 685] and V. Chandrasekaran v. Administrative Officer
[V. Chandrasekaran v. Administrative Officer, (2012) 12 SCC 133 :
(2013) 2 SCC (Civ) 136 : (2013) 4 SCC (Cri) 587 : (2013) 3 SCC
(L&S) 416] .]
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16. Thus, it is evident that the doctrine of election is based on
the rule of estoppel--the principle that one cannot approbate
and reprobate is inherent in it. The doctrine of estoppel by
election is one among the species of estoppel in pais (or equitable
estoppel), which is a rule of equity. By this law, a person may be
precluded, by way of his actions, or conduct, or silence when it
is his duty to speak, from asserting a right which he would have
otherwise had."
Article 226 of the Constitution of India
28. We would not dwell deep into the extraordinary and discretionary
nature of relief under Article 226 of the Constitution of India. This
principle is to be extended much more when an element of undue
delay, laches and acquiescence is involved. The following decisions of
this Court would suffice:
28.1. U.P. Jal Nigam v. Jaswant Singh [U.P. Jal Nigam v. Jaswant Singh,
(2006) 11 SCC 464 : (2007) 1 SCC (L&S) 500] : (SCC pp. 469-70, paras
8-11)
"8. Our attention was also invited to a decision of this Court in
State of Karnataka v. S.M. Kotrayya [State of Karnataka v. S.M.
Kotrayya, (1996) 6 SCC 267 : 1996 SCC (L&S) 1488] . In that case
the respondents woke up to claim the relief which was granted to
their colleagues by the Tribunal with an application to condone
the delay. The Tribunal condoned the delay. Therefore, the State
approached this Court and this Court after considering the matter
observed as under : (SCC p. 268)
'Although it is not necessary to give an explanation for the delay
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which occurred within the period mentioned in sub-section (1) or
(2) of Section 21, explanation should be given for the delay
which occasioned after the expiry of the aforesaid respective
period applicable to the appropriate case and the Tribunal should
satisfy itself whether the explanation offered was proper. In the
instant case, the explanation offered was that they came to know
of the relief granted by the Tribunal in August 1989 and that
they filed the petition immediately thereafter. That is not a proper
explanation at all. What was required of them to explain under
sub-sections (1) and (2) was as to why they could not avail of the
remedy of redressal of their grievances before the expiry of the
period prescribed under sub-section (1) or (2). That was not the
explanation given. Therefore, the Tribunal was wholly unjustified
in condoning the delay.'
9. Similarly in Jagdish Lal v. State of Haryana [Jagdish Lal v. State of
Haryana, (1997) 6 SCC 538 : 1997 SCC (L&S) 1550] this Court
reaffirmed the rule that if a person chose to sit over the matter
and then woke up after the decision of the court, then such
person cannot stand to benefit. In that case it was observed as
follows : (SCC p. 542)
'The delay disentitles a party to discretionary relief under
Article 226 or Article 32 of the Constitution. The appellants
kept sleeping over their rights for long and woke up when they
had the impetus from Virpal Singh Chauhan case [Union of India
v. Virpal Singh Chauhan, (1995) 6 SCC 684 : 1996 SCC (L&S) 1]
. The appellants' desperate attempt to redo the seniority is not
amenable to judicial review at this belated stage.'
10. In Union of India v. C.K. Dharagupta [Union of India v.
C.K. Dharagupta, (1997) 3 SCC 395 : 1997 SCC (L&S) 821] it
was observed as follows : (SCC p. 398, para 9)
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'9. We, however, clarify that in view of our finding that
the judgment of the Tribunal in R.P. Joshi [R.P. Joshi v.
Union of India, OA No. 497 of 1986, decided on 17-3-
1987 (CAT)] gives relief only to Joshi, the benefit of the
said judgment of the Tribunal cannot be extended to
any other person. The respondent C.K. Dharagupta
(since retired) is seeking benefit of Joshi case [R.P. Joshi v.
Union of India, OA No. 497 of 1986, decided on 17-3-
1987 (CAT)] . In view of our finding that the benefit of
the judgment of the Tribunal dated 17-3-1987 could
only be given to Joshi and nobody else, even
Dharagupta is not entitled to any relief.'
11. In State of W.B. v. Tarun K. Roy [State of W.B. v. Tarun K.
Roy, (2004) 1 SCC 347 : 2004 SCC (L&S) 225] their Lordships
considered delay as serious factor and have not granted relief.
Therein it was observed as follows : (SCC pp. 359-60, para 34)
'34. The respondents furthermore are not even entitled to
any relief on the ground of gross delay and laches on their
part in filing the writ petition. The first two writ petitions were
filed in the year 1976 wherein the respondents herein
approached the High Court in 1992. In between 1976 and
1992 not only two writ petitions had been decided, but one
way or the other, even the matter had been considered by this
Court in Debdas Kumar [State of W.B. v. Debdas Kumar, 1991
Supp (1) SCC 138 : 1991 SCC (L&S) 841] . The plea of delay,
which Mr Krishnamani states, should be a ground for denying
the relief to the other persons similarly situated would operate
against the respondents. Furthermore, the other employees not
being before this Court although they are ventilating their
grievances before appropriate courts of law, no order should
be passed which would prejudice their cause. In such a
situation, we are not prepared to make any observation only
for the purpose of grant of some relief to the respondents to
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which they are not legally entitled to so as to deprive others
therefrom who may be found to be entitled thereto by a court
of law.'
28.2. Eastern Coalfields Ltd. v. Dugal Kumar [Eastern Coalfields Ltd. v.
Dugal Kumar, (2008) 14 SCC 295] : (SCC pp. 302-04, paras 24-28)
"24. As to delay and laches on the part of the writ petitioner,
there is substance in the argument of learned counsel for the
appellant Company. It is well settled that under Article 226 of
the Constitution, the power of a High Court to issue an
appropriate writ, order or direction is discretionary. One of the
grounds to refuse relief by a writ court is that the petitioner is
guilty of delay and laches. It is imperative, where the petitioner
invokes extraordinary remedy under Article 226 of the
Constitution, that he should come to the court at the earliest
reasonably possible opportunity. Inordinate delay in making
the motion for a writ is indeed an adequate ground for refusing
to exercise discretion in favour of the applicant.
25. Under the English law, an application for leave for judicial
review should be made "promptly". If it is made tardily, it may
be rejected. The fact that there is breach of public law duty
does not necessarily make it irrelevant to consider delay or
laches on the part of the applicant. Even if leave is granted,
the question can be considered at the time of final hearing
whether relief should be granted in favour of such applicant or
not. (Vide R. v. Essex County Council [R. v. Essex County Council,
1993 COD 344] .)
26. In R. v. Dairy Produce Quota Tribunal, ex p Caswell [R. v. Dairy
Produce Quota Tribunal, ex p Caswell, (1990) 2 AC 738 at p. 749 :
(1990) 2 WLR 1320 (HL)] , the House of Lords stated [Ed. :
Quoting from O'Reilly v. Mackman [O'Reilly v. Mackman, (1983)
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2 AC 237 : (1982) 3 WLR 1096 : (1982) 3 All ER 1124 at p.
1131a-b (HL)] ] : (O'Reilly case [O'Reilly v. Mackman, (1983) 2 AC
237 : (1982) 3 WLR 1096 : (1982) 3 All ER 1124 at p. 1131a-b
(HL)] , AC pp. 280-81)
"The public interest in good administration requires that public
authorities and third parties should not be kept in suspense as to the legal
validity of a decision the authority has reached in purported exercise of
decision-making powers for any longer period than is absolutely necessary
in fairness to the person affected by the decision."
27. The underlying object of refusing to issue a writ has been
succinctly explained by Sir Barnes Peacock in Lindsay Petroleum
Co. v. Prosper Armstrong Hurd [Lindsay Petroleum Co. v. Prosper
Armstrong Hurd, (1874) LR 5 PC 221 : 22 WR 492] , thus : (LR
pp. 239-40)
"Now the doctrine of laches in courts of equity is not an
arbitrary or a technical doctrine. Where it would be practically
unjust to give a remedy, either because the party has, by his
conduct, done that which might fairly be regarded as equivalent to
a waiver of it, or where by his conduct and neglect he has, though
perhaps not waiving that remedy, yet put the other party in a
situation, in which it would not be reasonable to place him if the
remedy were afterwards to be asserted, in either of these cases,
lapse of time and delay are most material. But in every case, if
an argument against relief, which otherwise would be just, is
founded upon mere delay, that delay of course not amounting to a
bar by any statute of limitations, the validity of that defence must
be tried upon principles substantially equitable. Two
circumstances, always important in such cases, are, the length of
the delay and the nature of the acts done during the interval,
which might affect either party and cause a balance of justice or
injustice in taking the one course or the other, so far as it relates to
the remedy."
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28. This Court has accepted the above principles of English
law. In Tilokchand Motichand v. H.B. Munshi [Tilokchand Motichand
v. H.B. Munshi, (1969) 1 SCC 110] and Rabindranath Bose v.
Union of India [Rabindranath Bose v. Union of India, (1970) 1 SCC
84] this Court ruled that even in cases of violation or
infringement of fundamental rights, a writ court may take into
account delay and laches on the part of the petitioner in
approaching the court. And if there is gross or unexplained
delay, the court may refuse to grant relief in favour of such
petitioner."
(emphasis
supplied)
28.3. State of J&K v. R.K. Zalpuri [State of J&K v. R.K. Zalpuri, (2015)
15 SCC 602 : (2016) 2 SCC (L&S) 228] : (SCC pp. 608-11, paras 20-
24)
"20. Having stated thus, it is useful to refer to a passage from
City & Industrial Development Corpn. v. Dosu Aardeshir
Bhiwandiwala [City & Industrial Development Corpn. v. Dosu
Aardeshir Bhiwandiwala, (2009) 1 SCC 168] , wherein this Court
while dwelling upon jurisdiction under Article 226 of the
Constitution, has expressed thus : (SCC p. 175, para 30)
'30. The Court while exercising its jurisdiction under Article
226 is duty-bound to consider whether:
(a) adjudication of writ petition involves any complex and
disputed questions of facts and whether they can be
satisfactorily resolved;
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(b) the petition reveals all material facts;
(c) the petitioner has any alternative or effective remedy for the
resolution of the dispute;
(d) person invoking the jurisdiction is guilty of unexplained
delay and laches;
(e) ex facie barred by any laws of limitation;
(f) grant of relief is against public policy or barred by any valid
law; and host of other factors.'
21. In this regard reference to a passage from Karnataka Power
Corpn. Ltd. v. K. Thangappan [Karnataka Power Corpn. Ltd. v. K.
Thangappan, (2006) 4 SCC 322 : 2006 SCC (L&S) 791] would be
apposite : (SCC p. 325, para 6)
'6. Delay or laches is one of the factors which is to be borne in
mind by the High Court when they exercise their discretionary
powers under Article 226 of the Constitution. In an
appropriate case the High Court may refuse to invoke its
extraordinary powers if there is such negligence or omission
on the part of the applicant to assert his right as taken in
conjunction with the lapse of time and other circumstances,
causes prejudice to the opposite party.'
After so stating the Court after referring to the authority in State of
M.P. v. Nandlal Jaiswal [State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC
566] restated the principle articulated in earlier pronouncements,
which is to the following effect : (Karnataka Power Corpn. case
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[Karnataka Power Corpn. Ltd. v. K. Thangappan, (2006) 4 SCC 322 : 2006
SCC (L&S) 791] , SCC p. 326, para 9)
'9. ... the High Court in exercise of its discretion does not
ordinarily assist the tardy and the indolent or the acquiescent
and the lethargic. If there is inordinate delay on the part of the
petitioner and such delay is not satisfactorily explained, the
High Court may decline to intervene and grant relief in
exercise of its writ jurisdiction. It was stated that this rule is
premised on a number of factors. The High Court does not
ordinarily permit a belated resort to the extraordinary remedy
because it is likely to cause confusion and public inconvenience
and bring, in its train new injustices, and if writ jurisdiction is
exercised after unreasonable delay, it may have the effect of
inflicting not only hardship and inconvenience but also
injustice on third parties. It was pointed out that when writ
jurisdiction is invoked, unexplained delay coupled with the
creation of third-party rights in the meantime is an important
factor which also weighs with the High Court in deciding
whether or not to exercise such jurisdiction.'
22. In State of Maharashtra v. Digambar [State of Maharashtra v.
Digambar, (1995) 4 SCC 683] a three-Judge Bench laid down
that : (SCC p. 692, para 19)
'19. Power of the High Court to be exercised under Article
226 of the Constitution, if is discretionary, its exercise
must be judicious and reasonable, admits of no
controversy. It is for that reason, a person's entitlement for
relief from a High Court under Article 226 of the
Constitution, be it against the State or anybody else, even if
is founded on the allegation of infringement of his legal
right, has to necessarily depend upon unblameworthy
conduct of the person seeking relief, and the court refuses
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to grant the discretionary relief to such person in exercise
of such power, when he approaches it with unclean hands
or blameworthy conduct.'
23. Recently in Chennai Metropolitan Water Supply & Sewerage
Board v. T.T. Murali Babu [Chennai Metropolitan Water Supply
& Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 :
(2014) 1 SCC (L&S) 38] , it has been ruled thus : (SCC p.
117, para 16)
'16. Thus, the doctrine of delay and laches should not
be lightly brushed aside. A writ court is required to
weigh the explanation offered and the acceptability of
the same. The court should bear in mind that it is
exercising an extraordinary and equitable jurisdiction. As
a constitutional court it has a duty to protect the rights
of the citizens but simultaneously it is to keep itself
alive to the primary principle that when an aggrieved
person, without adequate reason, approaches the court
at his own leisure or pleasure, the court would be under
legal obligation to scrutinise whether the lis at a belated
stage should be entertained or not. Be it noted, delay
comes in the way of equity. In certain circumstances
delay and laches may not be fatal but in most
circumstances inordinate delay would only invite disaster
for the litigant who knocks at the doors of the court.
Delay reflects inactivity and inaction on the part of a
litigant--a litigant who has forgotten the basic norms,
namely, 'procrastination is the greatest thief of time'
and second, law does not permit one to sleep and rise
like a phoenix. Delay does bring in hazard and causes
injury to the lis.'
24. At this juncture, we are obliged to state that the question of
delay and laches in all kinds of cases would not curb or curtail
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the power of the writ court to exercise the discretion. In
Tukaram Kana Joshi v. MIDC [Tukaram Kana Joshi v. MIDC,
(2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] it has been ruled
that : (SCC pp. 359-60, para 12)
'12. ... Delay and laches is adopted as a mode of discretion to
decline exercise of jurisdiction to grant relief. There is another
facet. The Court is required to exercise judicial discretion. The
said discretion is dependent on facts and circumstances of the
cases. Delay and laches is one of the facets to deny exercise of
discretion. It is not an absolute impediment. There can be
mitigating factors, continuity of cause of action, etc. That
apart, if the whole thing shocks the judicial conscience, then
the Court should exercise the discretion more so, when no
third-party interest is involved. Thus analysed, the petition is
not hit by the doctrine of delay and laches as the same is not a
constitutional limitation, the cause of action is continuous and
further the situation certainly shocks judicial conscience.'
And again : (Tukaram Kana Joshi case [Tukaram Kana Joshi v. MIDC,
(2013) 1 SCC 353 : (2013) 1 SCC (Civ) 491] , SCC p. 360, para 14)
'14. No hard-and-fast rule can be laid down as to when the
High Court should refuse to exercise its jurisdiction in favour
of a party who moves it after considerable delay and is
otherwise guilty of laches. Discretion must be exercised
judiciously and reasonably. In the event that the claim made by
the applicant is legally sustainable, delay should be condoned.
In other words, where circumstances justifying the conduct
exist, the illegality which is manifest, cannot be sustained on
the sole ground of laches. When substantial justice and
technical considerations are pitted against each other, the cause
of substantial justice deserves to be preferred, for the other
side cannot claim to have a vested right in the injustice being
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done, because of a non-deliberate delay. The court should not
harm innocent parties if their rights have in fact emerged by
delay on the part of the petitioners. (Vide Durga Prashad v.
Controller of Imports & Exports [Durga Prashad v. Controller of
Imports & Exports, (1969) 1 SCC 185] , LAO v. Katiji [LAO v.
Katiji, (1987) 2 SCC 107 : 1989 SCC (Tax) 172] , Dehri Rohtas
Light Railway Co. Ltd. v. District Board, Bhojpur [Dehri Rohtas Light
Railway Co. Ltd. v. District Board, Bhojpur, (1992) 2 SCC 598] ,
Dayal Singh v. Union of India [Dayal Singh v. Union of India,
(2003) 2 SCC 593] and Shankara Coop. Housing Society Ltd. v. M.
Prabhakar [Shankara Coop. Housing Society Ltd. v. M. Prabhakar,
(2011) 5 SCC 607 : (2011) 3 SCC (Civ) 56] .)' "
(emphasis supplied)
36.1 The above observations of the Hon'ble Supreme Court more
particularly, in context of the term laches, would clearly reflect the law laid
down by the Hon'ble Supreme Court being that the when a party who is
required to act in a particular manner while asserting a right, having not
done so, the negligence would stand in the way of the party getting a relief
or remedy. What would be essential to be looked into while determining
whether a claim is barred by the principle of laches is the length of delay
and nature of acts done during the interval. It has been explained by the
Hon'ble Supreme Court that a Court of equity would not entertain a
challenge by a party when the acts of the party would indicate a waiver of
the right for which the Court have been approached. It has been further
explained that if the party by its conduct has put the other party in a
particular position then the said party would not be permitted to challenge
or seek for a relief in such circumstances. The exceptions to the proposition
being existence of a statutory bar and on the ground of fraud, which is
pleaded and proved.
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36.2 The present facts viewed from the above perspective would reflect
that while an attempt is made to question certain order /actions as being
fraudulent yet, it would appear that even such defences, would not come to
the aid of respondents no. 5.1 to 5.4. It would be pertinent to note that the
allegation of fraud is at two stages namely the original order of the
Mamlatdar and ALT dated 26.12.1991, as well as the affidavit by the Power
of Attorney of respondents no. 5.1 to 5.4 in the first round of proceedings
before the GRT dated 12.06.2008. In the considered opinion of this Court
the first aspect which disentitles the respondents no. 5.1. to 5.4 to raise any
defense whatsoever or rather the defense as raised by the respondents no.
5.1 to 5.4 being of no consequence since the respondents by their actions
had indicated waiver of the right which was available to them. To elaborate,
at the first instance it would appear that order dated 26.12.1991 has never
ever been challenged by the respondents no. 5.1 to 5.4 or their predecessors,
substantively. Having not challenged the said order i.e. whereby the
Mamlatdar and ALT had recognized the tenancy rights of the petitioners in
an inquiry under Section 32(G) and had fixed purchase price to be paid by
the tenants the respondent no. 5 or respondents no. 5.1 to 5.4 as the case
may be are deemed to have waived their right qua the aspect of the
petitioners being tenants of the property in question.
36.3 Furthermore, while the respondents no. 5 & 6 had challenged order
passed by the Deputy Collector Land Reforms and Appeal, Vadodara dated
25.06.1999 whereby order of the year 1991 had been set aside before the
GRT, yet in the said proceedings, the respondent no. 5 had never raised the
contention of the proceedings which led to order dated 26.12.1991 being
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passed, being fraudulent proceedings. On the contrary as noticed
hereinabove, the respondent no. 5 through her power of attorney had filed
an affidavit requesting the GRT to permit the said respondent to withdraw
the revision application whereas the affidavit further requested the GRT to
allow the revision application of the petitioners. Furthermore, the affidavit
also confirmed the tenancy rights of the petitioners and whereas even the
proceedings which led to order dated 26.12.1991 being passed i.e Tenancy
Case No. 6463 of 1991, being accepted by the respondent no. 5. Again the
affidavit also confirms the statement of the respondent no. 5 given in
Tenancy Case No. 6463 of 1991, which statement is sought to be termed as
fraudulent in the later proceedings. Thus it would appear that in the first
substantive proceedings initiated by the respondent no. 5, instead of
questioning the legality and validity of order dated 26.12.1991 in Tenancy
Case No. 6463 of 1991 rather the respondent no. 5 had confirmed the said
proceedings. Noteworthy being the fact that the first substantive
proceedings were initiated by respondent no. 5 approximately 17 years after
order dated 26.12.1991.
36.4 Again what would be noteworthy is the fact that approximately a year
after the affidavit of respondent no. 5 referred to hereinabove, the
respondent no. 5 did a complete U turn by taking a contrary stand in
Remand Case No. 64 of 2009 wherein respondent no. 5 had inter alia
sought to question proceedings of Tenancy Case No. 6463 of 1991. Thus
for the first time approximately after 18 years, the respondent no. 5 had
sought to question order dated 26.12.1991 and the proceedings which led to
the said order being passed.
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37. To this Court it would appear that a party whose substantive rights
have been effected i.e. ownership of a parcel of land which was of the
party in question have been transferred to a person recognized as a tenant
of the property in question, not having questioned the said order
substantively even after more than 34 years of the said order being passed
and attempting to obliquely question the same in an ancillary proceeding,
that too after period of 18 years, which period indicates a clear waiver on
part of the respondent no. 5 and thus to this Court it would appear that
neither before the tenancy authorities below and certainly not in the present
proceedings, could the respondent no. 5 or 5.1. to 5.4 be permitted to
agitate their right as regards order dated 26.12.1991 and the effect thereof.
The principles of laches coming into play as explained by Hon'ble Supreme
Court, the doctrine of estoppel would apply to all defenses that are available
to such a party.
38. The above observations would also hold good insofar as the aspect of
acquiescence since the term acquiescence is nothing but a facet of principle
of laches. As explained by the Hon'ble Supreme Court, a party who had
knowledge of a particular act, not taking any action thereupon, and allows
the position to percolate, would be stopped from questioning the earlier
action, since he is deemed to have acquiesced to the position which has
changed and continued on account of the action which the party concerned
seeks to question at a belated stage. Laches being nothing but acquiescence
coupled with delay to this Court it would appear that the above discussion
insofar as the laches is concerned, would hold good insofar as aspect of
acquiescence is concerned. Respondent no. 5 and subsequently respondents
no. 5.1 to 5.4 having not substantively questioned order dated 26.12.1991 till
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date and having raised the aspect of fraud after approximately 18 years of
the order and in the interregnum having confirmed the proceedings and the
order which they are now seeking to question, the respondent no. 5 would
be precluded from raising the challenge or raising a defense upon based
upon principle of acquiescence.
39. Furthermore, insofar as the principle of approbate and reprobate is
concerned, the Hon'ble Supreme Court has explained the same as being
that that party cannot be allowed to accept and reject the same thing or in
other words cannot blow hot and cold at the same time. Insofar as the
present fact circumstances is concerned, it would appear that vide the
affidavit of the respondent no. 5 dated 12.06.2008 the respondent no. 5 had
confirmed the tenancy proceedings i.e Tenancy Case No. 6463 of 1991, had
confirmed her statement in the said proceedings, had also confirmed order
dated 26.12.1991 passed in the said proceedings. The said affidavit had been
pressed into service before the GRT while passing of order dated
17.11.2008 in the first round of proceedings as well as before the Deputy
Collector in remand proceedings where order dated 06.06.2009 had been
passed. Having done so, applying the principle of approbate and reprobate,
the respondents no. 5/5.1 to 5.4 would not be permitted now to turn
around and submit that tenancy proceedings being Tenancy Case No. 6463
of 1991 as well as statement made by respondent no. 5 herein as well as
order passed therein dated 25.06.1999 were based on a fraud etc.
40. The upshot of the above discussion being that defense of
respondents no. 5 and 5.1 to 5.4 as regards the Tenancy Case No. 6463 of
1991 and statement of the respondent no. 5 therein and order dated
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26.12.1991 passed therein as well as regards the affidavit dated 12.06.2008
would not be countenanced. In other words neither the respondents no. 5.1
to 5.4 would be precluded from questioning the above aspects and whereas
whenever the above aspects are questioned, no credence would be lent to
the same, any right to make the above submissions and inspite of such
submissions are made the same would not be countenanced in any manner
whatsoever.
THE IMPUGNED ORDER
41. Be that as it may, now this Court would examine the impugned order
itself as to whether the same was sustainable in law or not. While
proceeding to examine the legality and validity of impugned order dated
04.01.2017 passed by the Gujarat Revenue Tribunal, it would be appropriate
and desirable to discuss and examine in brief the orders which were set
aside by the Gujarat Revenue Tribunal. It would appear in this regard that
in the said proceedings, the GRT was called upon to examine correctness
of order dated 28.02.2013 passed by the Mamlatdar and ALT, Vadodara and
order dated 03.09.2015 confirming the order passed by the Mamlatdar and
ALT as above, in the Tenancy Appeal No. 50 of 2013. It would appear that
vide order dated 28.02.2013, the Mamlatdar and ALT had inter alia observed
that while insofar as the aspect whether the petitioners were agriculturists or
not that the grandfather of the petitioners had held a land at Village
Udhmatpura, Taluka Thasra as per the revenue record of the year 1951-52
and later on while the names of the father of the petitioners and petitioners
had been entered into revenue record vide succession entry, yet, in the
interregnum i.e in the year 1961, the land had vested in a tenant in the
proceedings under the Tenancy Act and the petitioners did not produce any
record to show that they were holding any other land from 1961 to 1979-80
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when they had started tilling the subject land in question. The Mamlatdar
and ALT having observed as thus, had gone further to hold that the
Tenancy Act does not require that a tenant should be having status as an
agriculturist, nor does it appear from the definition of 'tenant' at Section
2(18) of the Tenancy Act that only a person holding status as agriculturist
could be a tenant. Furthermore the Mamlatdar had held that the original
land owner had settled out of India, and had attempted to take contrary
stands more particularly having taken a stand in favour of the petitioners
before the Gujarat Revenue Tribunal that the petitioners were having
possession of the land in question and whereas it was never the case of the
land owners that they were having possession of the land. Under such
circumstances, the order dated 26.12.1991 was confirmed .
41.1 The said order had been upheld by the Deputy Collector Land
Reforms Vadodara vide order dated 03.09.2015 observing that respondent
no. 5 and respondent no. 5.1 to 5.4 have never questioned entry no. 2301
whereby names of the petitioners had been entered into the revenue record
as cultivators khedhak- right to till." Furthermore Deputy Collector holds
that order dated 26.121991 had never been challenged by respondents no.
5/ 5.1 to 5.4 and confirms the order passed by the Mamlatdar and ALT.
42. In the impugned order, the GRT inter alia holds that
[a] entry no. 2301 could not extend to land bearing survey no.
1025 ( Block No.730)- subject land since the consent of the then land
owners i.e. respondent no. 5 does not appear to have been taken;
[b] no proceedings under Section 70B had been conducted by the
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Mamlatdar and ALT and whereas merely on account of entry no.
2301, the purchase price had been fixed by Mamlatdar and ALT vide
order dated 26.12.1991 in Tenancy Case No. 6463 of 1991 which
was not proper;
[c] since order dated 26.12.1991 was in absence of an inquiry
under Section 70B therefore, the order of the Deputy Collector,
confirming the same could not be said to be correct;
[d] in Tenancy Case No. 6463 of 1991, deposition of the party
had been taken on 26.12.1991 and judgement had been passed on
the very day and thus the said decision could not be correct insofar as
the subject land is concerned;
[e] while the petitioners were not agriculturists since the year 1961
and whereas though the Tenancy Act does not require a person to be
an agriculturist to be declared as a tenant yet since while declaring
the petitioners as tenants proceedings under Section 70B were not
conducted, therefore, the order whereby the petitioners were declared
as tenants was not correct;
[f] any statement of Power of Attorney Holder of original
respondent no. 5 as regards the petitioners being tenants, would not
have any legal consequence. Hence the revision application was
allowed insofar as land bearing block no. 730 i.e the subject land.
43. A bare perusal of the conclusions arrived at by the Gujarat Revenue
Tribunal would reveal that the GRT was under misconception that it was
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called upon to examine and to give its findings on the legality and validity of
entry no. 2301 as well as order dated 26.12.1991 passed by the Mamlatdar
and ALT in Tenancy Case No. 6463 of 1991. It would be relevant to
observed that conclusion (a) and (b) are with regard to the validity of entry
no. 2301, whereas as noticed hereinabove, the said entry had never been
challenged by the respondent no. 5-5.1 to 5.4 . Again the said entry whereby
the names of the petitioners were mutated in the revenue record as
cultivators of the land bearing block no. 730 (subject land) and block no.
731 ( land originally belonging to respondent no. 6) was mutated in the
revenue record in the year 1980. Curiously, the GRT, in absence of any
challenge to the said entry holds that the said entry is invalid qua block no.
730 since respondent no. 6 could not have confirmed the fact that the
petitioners were tilling the land of respondent no. 5. To this Court in
absence of any challenge to the entry, in a proceeding under the Tenancy
Act, the GRT could not have held the entry to be invalid. Pertinently the
entry still exists on the revenue record. Thus the GRT has committed a
gross error insofar as the said aspect is concerned.
43.1 Furthermore conclusions no. (c) and (d) are with regard to the legality
and validity of order of the Mamlatar and ALT dated 26.12.1991, whereby
the petitioners were declared as tenants of the land in question and purchase
price was fixed. Again it was not this order which was under challenge
before the GRT. As noticed hereinabove, the said order had never ever been
challenged by the respondents no.5 or 5.1 to 5.4. It also appears that order
dated 26.12.1991 had never been set aside in any proceedings and whereas
even the remand proceedings arising from the first order of the GRT dared
17.11.2008 were only with regard to verifying the agriculturist status of the
petitioners and whereas the scope of the remand was never extended to
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examining the legality and validity of order dated 26.12.1991.
43.2. To elaborate in proceedings of Tenancy Appeal No. 167 of 1998
when order dated 26.1.1991 was challenged by the respondent no. 6, the
Deputy Collector vide order dated 25.06.1999 had directed that the land be
vested in the State Government and whereas order dated 26.12.1991 had
not been set aside. Again while the GRT in its order dated 17.11.2008, while
stating that the order dated 26.12.1991 may not be correct and had not set
aside the said order, rather the GRT had remanded the matter to the Deputy
Collector for examining the issue of the aspects mentioned in the order of
the GRT. In remand proceedings vide order dated 06.06.2009 the Deputy
Collector in Tenancy Appeal No. 66 of 2008, remands the matter to the
Mamlatdar and ALT to examine the status of the petitioners as
agriculturists. In further remand proceedings the Mamlatdar and ALT vide
order dated 19.04.2010 in Remand Case No. 64 of 2009 in Tenancy Case
No. 6463 of 1991, had dropped the proceedings. In appeal against the said
order vide Tenancy Appeal No. 72 of 2010, the Deputy Collector vide order
dated 17.05.2012, sets aside the order of the Mamlatdar and ALT dated
19.04.2010, restores the proceedings and further fixes the scope of the
remand as to whether the tenants were agriculturists and whether there is
any breach of Section 63 in declaring the petitioners as agriculturists. The
said order had not been interfered with by the GRT vide order dated
09.10.2012 in Tenancy Revision Application No. 173 of 2012.
43.3 The Deputy Collector having reiterated the scope of remand
proceedings, in the final round of remand before the Mamlatdar and ALT
i.e. in Remand Case No. 50 of 2012 arising from Tenancy Case No. 6463 of
1991, had inter alia referred to the fact of entry no. 2301 having not been
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challenged, order dated 26.12.1991 having not been challenged by the
respondent no. 5 had referred to the affidavit by legal heirs of respondent
no. 6 as well as respondent no. 5 whereby they had requested that the order
of the Deputy Collector dated 25.06.1999 may be set aside and order dated
26.12.1991 may be confirmed. Ultimately, having touched upon the above
aspects, the Mamlatdar confines the substantive discussion as regards
inquiry as to whether the petitioners were agriculturists or not and while the
Mamlatdar finds that the petitioners did not retain status of agriculturists
from 1961 to 1979-80 yet, the Mamlatdar holds that the Tenancy Act does
not require a tenant to be an agriculturist. The said findings had been
reiterated by the Deputy Collector vide order dated 03.09.2015 in Tenancy
Appeal No. 15-50/2013.
43.4 Thus the position that emerges from the above discussion is that
while order dated 26.12.1991 had never been set aside, even the remand
proceedings were restricted as regards an inquiry as to whether the
petitioners held the status of agriculturists or not. Thus to this Court it
would clearly appear that the GRT had exceeded in its jurisdiction by
examining the legality of order dated 26.12.1991 since neither the said
order was challenged before the GRT nor the GRT was called upon to
examine the validity of the said order and the remand proceedings were
only to verify as to whether the petitioners were agriculturists or not. The
findings of the GRT insofar as conclusions (c) and (d) since is it with regard
to order dated 26.12.1991, are wholly without jurisdiction.
44. Insofar as conclusion no. (e), while the GRT affirms the findings of
the Mamlatdar and ALT as well as the Deputy Collector, in orders which
were under challenge before him dated 28.02.2013 and 03.09.2015
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respectively as regards the Tenancy Act not requiring the tenant to have a
status of agriculturist, yet, the GRT holds that since order dated 26.12.1991
was passed without an inquiry under Section 70B therefore, the order was
not correct. Insofar as the aspect of order dated 26.12.1991, the discussion
insofar as the conclusions no. (c) and (d), would apply mutatis mutandis the
present conclusion also and whereas, insofar as the affirmation of orders of
the subordinate authorities by the GRT, the same being the correct position
of law, therefore, no interference is required.
44.1 To elaborate it is a well settled proposition of law that there cannot
be any estoppel against a statute. The Hon'ble Supreme Court in case of
State of West Bengal vs. Gitashree Dutta (Dey) reported in (2022) 19 SCC
388 has inter alia observed as thus at paragraphs no. 28, 29, 30 and 31 which
paragraphs being relevant for the present purpose are reproduced
hereinbelow for benefit:
"28. It is trite law that there can be no estoppel against a statute. This
Court has settled this principle in a catena of judgments, starting as
early as 1955. A Constitution Bench of this Court in Amar Singhji v.
State of Rajasthan [Amar Singhji v. State of Rajasthan, 1955 SCC
OnLine SC 27 : (1955) 2 SCR 303 : AIR 1955 SC 504] held as follows
: (AIR p. 534, para 74)
"74. ... We are unable on these facts to see any basis for a plea
of estoppel. The letter dated 28-11-1953 was not addressed to
the petitioner; nor does it amount to an assurance or
undertaking not to resume the jagir. And even if such
assurance had been given, it would certainly not have been
binding on the Government, because its powers of resumption
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are regulated by the statute, and must be exercised in
accordance with its provisions. The Act confers no authority
on the Government to grant exemption from resumption, and
an undertaking not to resume will be invalid, and there can be
no estoppel against a statute."
29. A Constitution of Bench of this Court in Electronics Corpn. of
India Ltd. v. State of A.P. [Electronics Corpn. of India Ltd. v. State of
A.P., (1999) 4 SCC 458] also upheld this principle and held as follows :
(SCC p. 465, para 21)
"21. There are two short answers to this contention. In the first place,
there can be no estoppel against a statute."
30. This Court in A.P. Dairy Development Corpn. Federation v. B.
Narasimha Reddy [A.P. Dairy Development Corpn. Federation v. B.
Narasimha Reddy, (2011) 9 SCC 286] , has held that when the actions
of the Government are not in conformity with law, the doctrine of
estoppel would not apply. This Court observed : (SCC p. 306, para 40)
"40. ... The State, being a continuing body can be stopped
from changing its stand in a given case, but where after holding
enquiry it came to the conclusion that action was not in
conformity with law, the doctrine of estoppel would not
apply."
31. It is clear that this Court in several judgments has also upheld that
the plea of promissory estoppel would stand negated when the
mandate of a statute is followed. This Court in A.P. Pollution Control
Board v. M.V. Nayudu [A.P. Pollution Control Board v. M.V. Nayudu,
(2001) 2 SCC 62] , held as under : (SCC p. 84, para 69)
"69. The learned appellate authority erred in thinking that
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because of the approval of plan by the Panchayat, or
conversion of land use by the Collector or grant of letter of
intent by the Central Government, a case for applying principle
of "promissory estoppel" applied to the facts of this case.
There could be no estoppel against the statute."
44.2 Considering the present facts situation from the perspective of law
laid down by the Hon'ble Supreme Court it would clearly appear that since
the Tenancy Act does not require a tenant to hold the status of an
agriculturist, there could not have been any inquiry on the said aspect and
whereas since all the three authorities namely Mamlatdar and ALT, Deputy
Collector ( L.R & A) and GRT have observed that while the petitioners may
not have status of agriculturists but the law does not require the petitioners
to have such a status for being declared as a tenant. Therefore, relying upon
observations of the Hon'ble Supreme Court no further discussion is
warranted.
45. In the last conclusion, the GRT holds that statement by Power of
Attorney Holder of original respondent no. 5 as regards the petitioners
being tenants would not have any legal consequences, may not be a correct
view. It would appear in this regard that vide the affidavit referred to i.e.
dated 12.06.2008, the respondent no. 5 through her Power of Attorney had
confirmed that infact the petitioners were tilling the land in question. The
respondent no. 5 also states that there was no lacuna in the original tenancy
proceedings i.e Tenancy Case No. 6463 of 1991 where order dated
26.12.1991 had been passed. The effect of such affidavit to this Court
would be that the respondent no. 5 having confirmed the proceedings,
nothing further would have been required to be done by the authorities
under the Tenancy Act, as regards the order dated 26.12.1991. In any case,
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what is required to be noted is that the affidavit was by the Power of
Attorney under instructions and authorities of respondent no. 5 thus, the
said affidavit is deemed to be the affidavit of respondent no. 5 and it could
not be termed as affidavit of the Power of Attorney, as attempted to be
interpreted by the Gujarat Revenue Tribunal. Thus to this Court it would
appear that order of the GRT being wholly unsustainable, erroneous, passed
without proper application of mind and passed against the settled legal
principles, is required to be set aside by this Court.
45.1 Again what would be more interesting would be fact that while the
order impugned passed by the GRT, inter alia questions the legality and
validity of order dated 26.12.1991, in the operative portion, the GRT sets
aside the order dated 28.02.2013 passed by the Mamlatdar and ALT in
Remand Case No. 50 of 2012 and order passed by the Deputy Collector
dated 03.09.2015 in Tenancy Appeal No. 50 of 2013. Thus while it would
appear that the GRT was well aware that what was under challenge before
the GRT were orders which it had set aside yet in the discussion leading to
the operative part, the discussion is with regard to an order which were not
subject matter of challenge.
45.2 Again a further interesting factor to be noted is that except for minor
modification all the conclusions arrived at by the GRT were applicable to
order dated 26.12.1991 as whole i.e. to state that order dated 26.12.1991 was
qua two different lands i.e. block no. 730 ,of respondent no. 5-5.1 to 5.4 and
block no. 731 of respondent no. 6. While the GRT relying on the
conclusions as above, has set aside orders dated 28.02.2013 passed by the
Mamlatdar and ALT and 03.09.2015 passed by the Deputy Collector and
had held that the petitioners were not tenants in agriculture land bearing
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block no. 730, yet, the GRT vide order dated 22.05.2017 in Review
Application No. 313 of 2015 in order dated 04.01.2017 ( the impugned
order), had declared that the petitioners were entitled to claim tenancy rights
qua land bearing block no. 731. Thus the GRT had taken a self contrary
stand qua the very selfsame order dated 26.12.1991 though the conclusion
on basis of which order dated 26.12.1991 is declared to be erroneous in the
present impugned order could be applicable, albeit with minor modifications
qua land bearing block no. 731 also. The order of the GRT requires
interference for such incongruity also.
AS REGARDS REMAND
46. Having observed as above, the question would be as to whether the
matter is required to be referred back to the Gujarat Revenue Tribunal for a
fresh decision. To this Court it would appear that answer to such a question
would be a resounding "no".
47. To this Court it would appear that the proceedings, have continued in
a completely disorganized, tangential and summary manner, without much
application of mind by some of the authorities below, which has resulted in
a non existent litigation being brought upto to the High Court in multiple
rounds. While the blame for the above would squarely be attributable to
respondent no. 5 and later to respondent no. 5.1. to 5.4, some of the
authorities below, have also contributed to the extraordinarily confusing
situation. The blame also equally lies on the petitioners here who have not
brought this aspect to the notice of any of the authorities under the
Tenancy Act.
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48. To this Court, it would appear that the matter should not be
remanded back to the GRT for three different reasons namely:-
(i) The litigation post order dated 17.11.2008 qua land bearing block
no.730 being a non-existent or non-est litigation. As noticed in the
undeniable facts, the principal or the central order in the entire litigation is
order dated 26.12.1991 passed by the Mamlatdar and ALT in Tenancy Case
No.6463 of 1991 whereby the petitioners were declared as tenants and
purchased price was fixed qua land bearing block no.730 as well as block
no.731 belonging to respondents no.5 and 6 respectively. Order dated
26.12.1991 had been challenged by respondent no.6 only by preferring
Tenancy Appeal No.167 of 1998 and whereas, in the said appeal, the
Deputy Collector vide order dated 25.06.1999 had directed that the land be
vested in the State Government. While respondent no.5 was not a party to
the said appeal and though the order would not have effected land bearing
block no.730, yet, respondent no.6 as well as respondent no.5 had both filed
a revision application being Revision No.429 of 1999 before the GRT
where order dated 17.11.2008 was passed. The GRT, vide the above order,
while setting aside order dated 25.06.1999 by the Deputy Collector, had
remanded the matter back to the Deputy Collector for examination on the
issues mentioned in the said order. While it is true that the Deputy Collector
had directed that notice be issued to respondent no.5 herein, yet, it is equally
true that what was remanded was Tenancy Appeal No.167 of 1998. It would
thus appear that while the aspects of examination in the remand case may
have been set by the GRT, yet, the array of parties would remain the same
inasmuch as it would be an appeal by the respondent no.6 only and whereas,
as noticed hereinabove, the respondent no.5 was not a party to the said
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proceedings. Unfortunately, this crucial aspect appears to have been missed
out by all the tenancy authorities post order dated 17.11.2008 and whereas,
the respondent no.5 as well as later on respondent no.5.1 to 5.4 were treated
as parties and as could be made out, had contested the litigation tooth and
nail before the authorities below. To this Court, it would clearly appear that
since what was remanded was a very specific case i.e. Tenancy Appeal
No.167 of 1998, the scope and ambit of the remand proceedings qua the
parties would also remain the same as in the appeal and none of the
authorities below could have enlarged the scope of the array of parties in
the remand proceedings.
Since Tenancy Appeal No.167 of 1998 was and could have been only
qua land bearing block no.731 since respondent no.6 was the only appellant
in the appeal, therefore, the proceedings qua land bearing block no.730 were
a completely nonest proceedings after order dated 17.11.2008. Thus, this
Court had used the term 'non-existent - non-est proceedings'. This being
the situation, as such, the respondent no.5.1 to 5.4 would not have any right
whatsoever to contest any tenancy litigation qua land bearing block no.730,
hence, to this Court, there would not be any requirement to remand the
matter back to the GRT.
(ii) The second aspect being a gross error committed by the GRT itself
while passing order dated 17.11.2008. While this Court is conscious of the
fact that it is not order dated 17.11.2008 which is under challenge in the
present petition, at the same time, the said order is being examined in the
perspective of whether a remand would be necessiated. The error, to this
Court, being of the GRT having remanded the case to the Deputy
Collector, inspite of a specific request made by the land owners vide
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affidavit dated 12.06.2008. In this context, it would be pertinent to mention
that order dated 26.12.1991 was passed by the Mamlatdar and ALT under
Section 32(G) of the Tenancy Act. The said order could be challenged
under Section 74 by an affected party or could have been taken up in suo
motu revision proceedings under Section 76(A) of the Tenancy Act. Appeal
against order dated 26.11.1991 had been preferred by respondent no.6 under
Section 74 of the Tenancy Act before the Deputy Collector. The Deputy
Collector had directed the land to be vested in the State Government.
Hence, the respondent no.6 and respondent no.5 had preferred a revision
under Section 76 to the GRT. Thus, what was in question before the GRT
was a proceeding initiated by a landlord against an order vesting of the land
in the State Government in a proceeding where the landlord had questioned
an order recognizing the tenancy right of a tenant. In such a proceedings,
the landlord had requested that the revision preferred by the landlord may
be permitted to be withdrawn and the revision preferred by the tenant may
be allowed. Inspite of such a specific affidavit, the GRT had remanded the
case to the Deputy Collector to examine the issue as regards any collusion
between the land owner and the tenant. To this Court, it would appear that
such a remand was absolutely unnecessary since though the order impugned
before the GRT mentioned about collusion, yet, the GRT notes that there
was no material available with the Deputy Collector or no reasons
mentioned in the order substantiating the allegation of collusion. To this
Court, it would appear that in an intra-party proceedings, where the State
may not have much of a stake and where the order impugned did not give
any reasons, the GRT ought to have accepted the affidavit and ought to
have allowed the revision of the tenant and disposed of the revision of the
landlord. The GRT having not done so at the relevant point of time and
having remanded the matter to the Deputy Collector, a pandora's box had
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been opened and even after many rounds, the issue could not be concluded
substantively. Therefore also, this Court is of the opinion that the matter
should not be remanded to the GRT.
(iii) The third aspect on which remand if found unnecessary is the error
in order dated 06.06.2009 by the Deputy Collector. In this regard, it is
observed that vide order dated 17.11.2008, the GRT had inter alia, as
regards the affidavit by respondents no.5 and 6 herein, had observed that it
would be open for the parties to make appropriate request before the
Deputy Collector in the remand proceedings. The Deputy Collector in the
remand proceedings, while the respondents no.5 and 6 herein rely upon the
very affidavit requesting that the order dated 26.12.1991 be confirmed and
whereas, the Deputy Collector being conscious of the affidavit since the
affidavit has been reproduced in the order of the Deputy Collector dated
06.06.2009, yet, appropriate cognizance of the affidavit had not been made
by the Deputy Collector while further remanding the matter back to the
Mamlatdar. To this Court, it would appear that the affidavit referred to
hereinabove by the land owners before the Deputy Collector requesting for
confirming order dated 29.12.1991 was as per the direction of the GRT
directing the landlords to place the same before the Deputy Collector and
whereas, the Deputy Collector having not appropriately considered the
request of the landlords more particularly of respondent no.6 who was the
appellant in the said appeal, who was entitled to as dominus litis, request for
disposing of the appeal which ought to have been granted and the same
having not been done, to this Court, the said issue would also weigh with
this Court while not remanding the matter back to the GRT.
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ON THE SUBMISSIONS OF RESPONDENTS NO. 5.1 TO 5.4
49. While the findings of this Court insofar as the legality and validity of
the order impugned passed by the GRT dated 04.01.2017, answers all the
contentions raised by learned Advocate for the respondent no. 5 -5.1 to 5.4
yet, since some of the submissions would also be required to be dealt with
elaborately, therefore the key submission of the learned Advocate of
respondents are dealt with hereafter. It is required to be noted that
principally the arguments of learned Advocate revolve around validity of
order dated 26.12.1991, whereas since the respondent no. 5 -5.1 to 5.4
having not challenged the order substantively could not be heard to claim
that the said order was illegal, invalid or fraudulent. Reliance is placed on
observations of the Hon'ble Supreme Court in case of Krishnadevi
Malchand Kamathia vs. Bombay Environmental Action Group reported in
2011 (3) SCC 363. Paragraphs no. 16, 17,18 and 19 being relevant for the
present purpose are reproduced hereinbelow for benefit :
"16. It is a settled legal proposition that even if an order is void, it
requires to be so declared by a competent forum and it is not
permissible for any person to ignore the same merely because in his
opinion the order is void. In State of Kerala v. M.K. Kunhikannan
Nambiar Manjeri Manikoth Naduvil [(1996) 1 SCC 435 : AIR 1996
SC 906] , Tayabbhai M. Bagasarwalla v. Hind Rubber Industries (P)
Ltd. [(1997) 3 SCC 443 : AIR 1997 SC 1240] , M. Meenakshi v.
Metadin Agarwal [(2006) 7 SCC 470] and Sneh Gupta v. Devi Sarup
[(2009) 6 SCC 194] , this Court held that whether an order is valid or
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void, cannot be determined by the parties. For setting aside such an
order, even if void, the party has to approach the appropriate forum.
"17. In State of Punjab v. Gurdev Singh [(1991) 4 SCC 1 : 1991
SCC (L&S) 1082 : (1991) 17 ATC 287 : AIR 1991 SC 2219] this Court
held that a party aggrieved by the invalidity of an order has to
approach the court for relief of declaration that the order against him
is inoperative and therefore, not binding upon him. While deciding
the said case, this Court placed reliance upon the judgment in Smith v.
East Elloe RDC [1956 AC 736 : (1956) 2 WLR 888 : (1956) 1 All ER
855] , wherein Lord Radcliffe observed : (AC pp. 769-70)
"... An order, even if not made in good faith, is still an act
capable of legal consequences. It bears no brand of invalidity
[on] its forehead. Unless the necessary proceedings are taken at
law to establish the cause of invalidity and to get it quashed or
otherwise upset, it will remain as effective for its ostensible
purpose as the most impeccable of orders."
18. In Sultan Sadik v. Sanjay Raj Subba [(2004) 2 SCC 377 : AIR
2004 SC 1377] , this Court took a similar view observing that once an
order is declared non est by the court only then the judgment of
nullity would operate erga omnes i.e. for and against everyone
concerned. Such a declaration is permissible if the court comes to the
conclusion that the author of the order lacks inherent
jurisdiction/competence and therefore, it comes to the conclusion
that the order suffers from patent and latent invalidity.
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19. Thus, from the above it emerges that even if the
order/notification is void/voidable, the party aggrieved by the same
cannot decide that the said order/notification is not binding upon it.
It has to approach the court for seeking such declaration. The order
may be hypothetically a nullity and even if its invalidity is challenged
before the court in a given circumstance, the court may refuse to
quash the same on various grounds including the standing of the
petitioner or on the ground of delay or on the doctrine of waiver or
any other legal reason. The order may be void for one purpose or for
one person, it may not be so for another purpose or another person.
49.1 The law reiterated by the Hon'ble Supreme Court being that whether
an order is valid or void cannot be determined by the parties and whereas
the said determination has to be done by a competent forum when
approached by the party concerned. In absence of the party challenging
such order before a competent forum and having got the same set aside, the
party could not claim that the order would not be binding on the party. An
order by a competent forum will remain effective and capable of legal
consequences unless it is interfered with by the competent forum. As
elaborately explained hereinabove , respondents no. 5-5.1. to 5.4 having not
questioned the validity of order dated 26.12.1991 before a competent forum
and having got the same set aside, the same would operate with all legal
consequences. Further as regards order dated 26.12.1991 having been
interfered with, again the discussion hereinabove would clearly reflect that
the said order had never been interfered with by any forum and whereas
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even the remand proceedings were only qua determining the status of the
petitioners as agriculturists.
50. Furthermore insofar as the submissions on behalf of respondents
no. 5-5.1. to 5.4 as regards the orders passed in the remand proceedings i.e.
after order dated 17.11.2008 passed by the GRT, including the submission
with regard to deletion of Section 32(0) of the Tenancy Act, none of the
arguments are required to be considered since this Court is of the
considered opinion that proceedings insofar as land bearing block no. 730
pursuant to order dated 17.11.2008, were completely non-est. To this Court
it would appear very clearly that respondent no. 5 was not a party to
Tenancy Appeal No. 167 of 1998 i.e. the proceedings whereby respondent
no. 6 had challenged order dated 26.12.1991. Inspite of such a position,
respondent no. 5 had preferred a Revision Application challenging order
dated 25.06.1999 passed by the Deputy Collector in Tenancy Appeal No.
167 of 1998. The challenge being before the GRT vide revision application
No. 429 of 1999 where the GRT had passed order dated 17.11.2008
remanding the matter to the Deputy Collector. The remand proceedings in
the considered opinion of this Court could have and should have related to
the original proceedings i.e. Tenancy Appeal No. 167 of 1998 i.e. between
respondent no. 6 and the petitioners and whereas in the remand
proceedings, the scope of the remand could not have been enlarged to take
into its ambit issue with regard to the land bearing block no. 730 since
respondent no. 5 as owner of the land bearing block no. 730 as owner of
the said land, was not a party appellant or even the respondent in Tenancy
Appeal No. 167 of 1998. As observed by this Court the litigation qua land
bearing block no. 730 being nonest and non existent litigation, none of the
submissions of the learned Advocate with regard to orders post order dated
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17.11.2008 are required to be addressed or countenanced.
51. Furthermore insofar as submissions with regard to the affidavit dated
12.06.2008 by respondent no. 5 not having any legal consequences, it is
required to be observed that vide affidavit dated 12.06.2008, the respondent
no. 5 had confirmed the status of the petitioners as tenants in land bearing
block no. 730 and had also confirmed that she sticks to the statement made
by her in proceedings of Tenancy Case No. 6463 of 1991. While certain
other assertions have also been made, which may not be relevant for the
present purpose, whereas to this Court it would appear that when such
factual aspects have been stated under oath by a party, in a quasi judicial
proceedings, the same would bind the party concerned, unless at the first
available opportunity the party takes appropriate steps to rescind or
repudiate such statement. In the instant case, while the affidavit had been
filed on 12.06.2008, the same had been referred to by the GRT in order
dated 17.11.2008. In later order dated 06.06.2009 the Deputy Collector in
remand proceedings referred to the said affidavit in extenso. The
respondent no. 5 having neither rescinded from the affidavit at the first
available opportunity or even at later stages or having questioned the right
of the Power of Attorney Holder to file such an affidavit, the said affidavit
and the contents thereof to this Court would be binding on the parties. The
authorities concerned i.e GRT as well as the Deputy Collector having not
passed orders thereupon, would not dilute the effect of the affidavit in any
manner whatsoever and it continues to bind the respondents no 5-5.1. to
5.4. Furthermore the litigation having been conducted through the very
same Power of Attorney by the respondent no. 5 and later on by
respondents no. 5.1 to 5.4, and the land having been sold by respondents no.
5.1. to 5.4 through the very Power of Attorney, are also clear indicators that
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the affidavit had been done by the Power of Attorney under instructions
and authority of respondent no. 5 and the same was not an independent
action by the Power of Attorney.
51.1. Again while an attempt has been made in the later proceedings, that
the signature of the Power of Attorney in the affidavit may be fabricated yet
it does not appear that any substantive proceedings have been initiated
insofar as the said issue is concerned by the respondent no. 5 or respondents
no. 5.1 to 5.4 or even the Power of Attorney Holder himself. Thus the
contentions of the learned Advocates with regard to affidavit dated
12.06.2008 not having any legal consequences cannot be accepted and is
hereby rejected.
52. Insofar as the judgements relied upon by learned Advocate in case of
Desai Navinkant Kesarlal(supra), it would appear that while the learned
Advocate is attempting to refer to the said decision to question validity of
entry no. 2301 whereby names of the petitioners were entered in the
revenue record in the column of "Khedhak- right to till", and whereas it
would appear that the said decision would not come to the aid of the said
parties since perusal of the facts clearly reveal that in the said case, the land
owners - Ex-inamdars had challenged the entry made in the record of right
as regards declaring certain persons as tenants/permanent tenants in the
lands of the petitioners. The entire discussion and the conclusion is based
upon the litigation resulting from the challenge to the entries. In the instant
case as has been noticed, entry no. 2301 had never been questioned by either
respondent no. 5 or respondents 5.1. to 5.4 at any point of time hence the
observations by the Division Bench, would not in any manner come to the
aid of the respondent no. 5 or 5.1 to 5.4. Again while the said judgment is
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also relied upon to canvass the scope and ambit of Section 70B of the
Tenancy Act yet respondent no. 5-5.1 to 5.4 having never substantively
challenged order dated 26.12.1991 whereby the petitioners were declared as
tenants, the respondents would be precluded from making such assertions
on the ground of acquiescence and waiver. The above observations as
regards Section 70B will hold good insofar as judgement in case of
Narayanprasad Haribhai Majmudar (supra) and in case of Dahyabhai
Wagjibhai (supra) both of this Court.
53. Insofar as decision in case of Commissioner of Customs
( Preventive) (supra), the said decision is relied to contend that foundation
of order dated 26.12.1991 in the first Tenancy Case is based upon fraud. In
this connection it is required to be noted that case before the Hon'ble
Supreme Court was with regard to the respondent having imported gold
and silver based upon a special import license purchased by the importers
which was apparently forged. While the Department having imposed
penalty on the respondent in challenging before the CESTATE, the appeal
had been allowed. The Hon'ble Supreme Court had in Appeal against the
said order inter alia held that the buyer- importer could not rely on the
ground of fraud since it was the duty of the buyer to have established that
he had no knowledge about the genuineness or otherwise of the license in
question, even after due diligence. In the considered opinion of this Court,
the decision of the Hon'ble Supreme Court would not in any manner come
to the aid of respondents no. 5.1 to 5.4 since a mere assertion of fraud in
passing an order dated 26.12.1991 cannot be countenanced as observed by
this Court relying upon the decision of the Hon'ble Supreme Court in case
of Krishnadevi Malchand Kamathia (supra) an order passed by a competent
authority unless it is challenged before a competent forum and is set aside
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will remain as effective as any other order and would still be capable of legal
consequences. The respondent no. 5 or respondents no. 5.1 to 5.4 not
having challenged the said order, are now precluded from contending about
the genunity etc. of the proceedings leading to such order. The order dated
26.12.1991 being in force and would continue to bind and operate against
the respondents no. 5.1 to 5.4.
THE FINAL DIRECTIONS
54. Insofar as decision in cases of Gurcharansingh Baldevsing (supra) ,
New India Assurance Company Limited ( supra) and in case of Shushila
Gupta (supra) since the same is relied upon to canvass a proposition with
regard to a repealed act and since this Court is of the opinion that the said
submissions could not be taken by the petitioners as the proceedings insofar
as land bearing block no. 730 are nonest post order 17.11.2008. Hence the
said decision also would not come to the aid of respondents no. 5.1 to 5.4.
55. In view of the observations, discussion and conclusions as herein-
above to this Court it would appear that order dated 04.01.2017 is required
to be interfered with and whereas certain further directions litigation are
also required to be issued. Hence the following directions:
[1] Impugned order passed by the GRT dated 04.01.2017 in
Revision Application No. TEN/BA/313 of 2015 is hereby quashed
and set aside.
[2] The petitioners are declared to be tenants of land bearing
Block no. 730, Village: Bill, Taluka - District: Vadodara.
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[3] The respondent-State Authorities are directed to give
appropriate effect to order dated 26.12.1991 passed in Tenancy Case
No. 6463 of 1991.
[4] It is further declared that sale of the property by respondents
no. 5.1 to 5.4 in favour of third parties vide sale-deed dated
14.07.2017 being a transaction pendente lite is hit by provisions of
Section 52 and the said transaction would not affect, in any manner
whatsoever, the tenancy rights of the petitioners.
56. With these observations and directions the petition stands disposed
of as allowed.
(NIKHIL S. KARIEL,J)
FURTHER ORDER
57. Upon pronouncement of the judgement learned Advocate Mr. A.S.
Vakil on behalf of learned Advocate Mr. D.M. Shah for respondents no.
5.1. to 5.4 would request that the present judgement may be stayed by this
Court. Considering that the order impugned is dated 04.01.2017 and has
continued to hold the field till date, therefore the request being reasonable is
acceded to. The present judgement shall remain stayed for a period of six
weeks from the it would be uploaded on the portal of Gujarat High Court.
(NIKHIL S. KARIEL,J)
NIRU
