State Of Gujarat vs Shantiben Wd/O Bhanabhai Kacharabhai
2025 Latest Caselaw 1499 Guj

Gujarat High Court

State Of Gujarat vs Shantiben Wd/O Bhanabhai Kacharabhai on 30 July, 2025

Author: Sunita Agarwal

Bench: Sunita Agarwal

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                              C/LPA/2396/2010                                 ORDER DATED: 30/07/2025

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                                     IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                                         R/LETTERS PATENT APPEAL NO. 2396 of 2010

                                       In R/SPECIAL CIVIL APPLICATION NO. 506 of 2009

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                                              STATE OF GUJARAT & ORS.
                                                       Versus
                                    SHANTIBEN WD/O BHANABHAI KACHARABHAI & ORS.
                       ==========================================================
                       Appearance:
                       MS. MAITHILI MEHTA, ASSISTANT GOVERNMENT PLEADER for the
                       Appellant(s) No. 1,2,3,4,5
                       MR KK TRIVEDI(934) for the Respondent(s) No.
                       10,11,12,13,14,15,16,17,18,19,20,21,22,23,24,25,26,4,5,6,8,9
                       NOTICE SERVED BY DS for the Respondent(s) No. 1,2,3,7
                       ==========================================================

                           CORAM:HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA
                                 AGARWAL
                                 and
                                 HONOURABLE MR.JUSTICE D.N.RAY

                                                       Date : 30/07/2025

                                                        ORAL ORDER

(PER : HONOURABLE THE CHIEF JUSTICE MRS. JUSTICE SUNITA AGARWAL)

By means of this intra-court appeal of the State appellant, the challenge is made to the judgment and order dated 30.03.2009 passed by the learned Single judge in disposing of the writ petition namely Special Civil Application No. 506 of 2009 with the following observations :-

"5. Having heard the learned Advocate, Mr. K.K.Trivedi for the petitioner and Mr. Neeraj Soni, the learned Asst. Government Pleader appearing for the respondent and having considered the earlier orders passed by this Court on identical issues, the Court is of the view that entries in question are to be certified subject to the final outcome of the LPA No.775/2008. Accordingly respondent no.5 is hereby directed to certify the entries in question subject to

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the final outcome of LPA No.775/2009 which is pending before the Division Bench of this Court. The same should be carried out within three months from date of receipt of the Writ of the Court or from the date of receipt of the certified copy of this order, whichever is earlier. It is also made clear that despite the certification of the entries if the petitioner enters into any transaction with regard to the land in question on the basis of the certification of entries pursuant to the direction of this Court, it will be dealt with subject to the final outcome of the LPA No.775/2008 wherein a similar issue is involved."

2. At the out set, we may note that the writ petition namely Special Civil Application No. 506 of 2009 was filed praying for the following reliefs :-

"A. Your Lordships may be pleased to admit the present petition.

B. Your Lordships may be pleased to issue a writ of Mandamus or a writ in the nature of Mandamus any other appropriate writ/s, order/s, and/or direction/s directing the respondent No.5 to certify the Mutation Entry No. 10116 to 10119 dated 29.09.2008 within a reasonable time as may be stipulated by this Hon'ble Court.

C. Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to grant ad-interim relief directing the respondent No.5 to certify Mutation Entry No. 11016 to 11019 dated 29.09.2008 within a reasonable time as may be stipulated by this Hon'ble Court."

3. To press the prayer made before the learned Single judge for issuance of mandamus commanding the respondent No.5, namely the Additional Mamlatdar & Agricultural Lands Tribunal (Tenancy), Choryasi, Surat, it was argued by the learned counsel for the petitioner before the learned Single judge that in a similar matter, namely in Special Civil Application No. 6301 of 2008, this Court had given directions to the Deputy Mamlatdar to certify the mutation entry and that such lands were belonging to the nearby area and, therefore, similar procedure is to be followed in the case of the petitioner also for certification of the mutation entry of the

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land-in-question. Upon filling of the affidavit-in-reply on behalf of the respondent No.3, namely Mamlatdar, Surat, it was noted by the learned Single judge that the State has preferred the Letters Patent Appeal, namely LPA No. 775 of 2008 against the judgment and order of the learned Single judge in Special Civil Application No. 9609 of 2006.

4. It was placed before the learned Single judge that the said Letters patent appeal had already been admitted and was pending final hearing. It seems that while noticing the fact of pendency of the LPA No. 775 of 2008, after admission by this Court, the above noted directions were issued by the learned Single judge for certifying the entries in question, which has been made subject to the final outcome of the said Letters patent appeal by the Division bench of this Court. Suffice it to note that it was clarified by the learned Single judge that inspite of certification of the entries in light of the directions contained therein (order dated 30.03.2009) if the petitioner enters into any transaction with regard to the land-in-question on the basis of the said certification of the entries, it will be dealt with subject to the final outcome of the Letters Patent Appeal No. 775 of 2008 wherein similar issue was involved.

5. When the matter was taken up today, the decision of the Division bench of this Court in disposal of the Letters patent appeal No. 775 of 2008 arising out of the Special civil application No. 9609 of 2006 alongwith other similar appeals has been placed before us. Vide judgment and order dated 01.05.2014, the Division bench while disposing of the Letters

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patent appeal No. 775 of 2008 alongwith other connected appeals, has observed as under :-

"8. We are of the opinion that if one cumulatively takes into account the provisions of Sections 3, 14 and 27 of the Tenancy Act read with Section 117 of T.P. Act, the only conclusion which could be drawn is to the effect that the status of a person as 'Permanent Tenant' does not per se pre-suppose that the said 'Permanent Tenant' had a transferable right in the tenancy of the land, unless the permanent tenant proves that prior to his becoming a permanent tenant he held a transferable right by usage, custom, agreement or decree or order of a Court. We are of the view that the two expressions I.e. 'Permanent Tenant' and 'Transferable Right in the tenancy of land' are not synonyms or part and parcel of each other but the same are distinct and independent of each other for the purposes of the Tenancy Act and more particularly for the purpose of section 43(1B) of the same Act.

8.1 In view of the above discussion, the conclusion reached by the learned Single Judge in para 42 clause (3) of the impugned judgement and order is required to be modified so far as the applicability of Transfer of Property Act, 1882 is concerned in the matter of operation of various provisions including that of section 43 of the Bombay Tenancy and Agricultural Lands Act, 1948. We are of the opinion that the transfer of tenancy right is required to be decided under the Tenancy Act and not under the Transfer of Properties Act. Therefore clause no. (3) of para 42 is required to be quashed and set aside. No other contention has been raised by learned advocate for the appellant.

8.2 As clause no. (3) of para 42 of the impugned judgement dated 17/18/23.01.2007 passed by the learned Single Judge in Special Civil Application No. 12976 of 2005 and group matters is quashed and set aside, the orders dated 4.04.2008 passed by the learned Single Judge in Special Civil Application No. 29898 of 2007 and 30.03.2009 passed by the learned Single Judge in Special Civil Application No. 1281 of 2009 also require to be quashed and set aside in view of the fact that the learned Single Judges in Special Civil Applications Nos. 29898 of 2007 and 1281 of 2009 have relied upon the decision dated 17/18/23.01.2007 passed by the learned Single Judge in Special Civil Application No. 12976 of 2005 and group matters.

9. In the premises aforesaid, clause no. (3) of para 42 of the impugned judgment dated 17/18/23.01.2007 passed by the learned Single Judge in Special Civil Application No. 12976 of 2005 and group matters is hereby quashed and set aside. The transfer of tenancy shall be governed as per the provisions of Bombay Tenancy & Agricultural Lands Act, 1948. Appeals are allowed

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accordingly."

6. The result is that the judgment and order dated 17/18/23.01.2007 passed by the learned Single judge in various writ petitions including Special civil application No. 9609 of 2006 stood modified with the clarification that the transfer of tenancy shall be governed by the provisions of the Bombay Tenancy rights and Agricultural Lands Act, 1948. The observations made in paragraph No. 42(3) of the judgment of the learned Single judge in Special Civil Application No. 9609 of 2006 upon which reliance was placed by the petitioner seeking direction in the nature of mandamus were quashed and set aside. The Division bench has, thus, held that the transfer of tenancy rights is required to be decided under the Tenancy Act and not under the Transfer of Properties Act.

7. When this judgment was placed before us by Ms. Maithili Mehta, the learned Assistant Government Pleader appearing for the State appellant, it was sought to be argued by the learned counsel for the respondent/original petitioner that apart from the observations made in paragraph No. 43(3) of the judgment of the learned Single judge in Special Civil Application No. 9609 of 2006, all other observations made therein have been affirmed by the Division Bench. With the modification of the judgment of the learned single Judge in the aforesaid writ petition by the Division bench with the judgment and order 01.05.2014, a clear mandamus is required to be issued to the respondent No.5 (before the writ

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court) to certify the mutation entries Nos. 10116 to 10119 dated 29.09.2008 within a reasonable time as stipulated by this Court.

8. Considering the said submission, suffice it to record that the factual assertions made in the writ petition about the right of the petitioner to seek certification of the mutation entries dated 29.09.2008, cannot be examined by us within the scope of Article 226 of the Constitution of India. Even going by the judgment passed by the learned Single judge in Special Civil Application No. 9609 of 2006, which has been modified by the Division Bench vide judgment and order dated 01.05.2014, pertinent is to note that the learned single Judge therein has also issued directions to the Mamlatdar to decide all concerned cases afresh after giving opportunity of hearing to all affected parties. Primary challenge before the learned Single judge therein was to the Circular dated 07.10.2005 issued by the State Government where power has been conferred upon the Collector to make an inquiry. The learned Single judge therein while quashing the circular has held that the same is ultra vires to the scheme of the Tenancy Act and the competent authority upon which the power has been conferred by the legislature is the Mamlatdar & ALT for the first instance.

9. It may not be out of place to mention that in Special leave to appeal (C) No.(s) 35861 of 2014 arising out of the judgment and order dated 01.05.2014 passed in LPA No. 775 of 2008 by this Court, an IA No. 1 of 2014 was filed by the

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private party seeking permission to file a petition, which was allowed by the Apex Court and the Special Leave Petition itself was dismissed with the observations that the Apex Court did not find any ground to interfere with the impugned judgment passed by the High Court. It was further observed that pending matter before the revenue tribunal, shall be decided based on the facts of the said case.

10. It is, thus, evident that the statement of law made by the Division bench vide judgment and order dated 01.05.2014 in LPA No. 775 of 2008 passed by the Division bench stood affirmed with the decision of the Apex Court.

11. With the above, we dispose of the present appeal with the observation that the directions contained in paragraph No. '5' of the judgment and order dated 30.03.2009 passed by the learned Single judge, subject matter of challenge herein, stood modified with the decision of the Division bench in LPA No. 775 of 2008 dated 01.05.2014. The directions contained in the judgment and order dated 30.03.2009 (subject matter of challenge herein) for certification of the entries during the pendency of the LPA No. 775 of 2008, therefore, would not survive. The result is that the original petitioner/respondent herein will have to move a proper application before the Mamlatdar concerned for the relief prayed in the writ petition, namely for the certification of mutation entries Nos. 10116 to 10119 dated 29.09.2008.

12. On such application being filed alongwith the copy of

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this order within a period of two weeks from today, the concerned Mamlatdar shall consider the claim of the petitioner and take an appropriate decision by passing a reasoned and speaking order, strictly in accordance with law.

13. It goes without saying that the Mamlatdar would be under obligation to take an independent decision after going through the revenue records, in the facts and circumstances of the present case.

(SUNITA AGARWAL, CJ )

(D.N.RAY,J) C.M. JOSHI