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SCA/13517/2000 2/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13517 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
======================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
======================================
GULABBEN
WD/O MAGANBHAI NARANBHAI VALAND & 1 - Petitioners
Versus
MAMLATDAR
& AGRICULTURAL TRIBUNAL & 6 - Respondents
======================================
Appearance :
MR
SK BUKHARI for the Petitioners.
GOVERNMENT PLEADER for
Respondent(s) : 1, 7,
MR PJ VYAS for Respondent(s) : 2 - 3, 3.2.2,
3.2.3, 3.2.4,3.2.5
None for Respondent(s) : 3,
RULE SERVED for
Respondent(s) : 3.2.6 - 6.
======================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 11/01/2010
ORAL
JUDGMENT
1. By
way of this petition under Articles 226 and 227 of the Constitution
of India, the petitioners heirs of original landlord have prayed
for an appropriate writ, order and/or direction, quashing and setting
aside the orders dated 30/08/1997 and 13/10/1999 passed by Mamlatdar
& ALT, Gandhinagar as well as Secretary (Appeals), Revenue
Department, State of Gujarat respectively, which are at Annexure C
and D respectively by holding that the application filed by
respondent Nos.2 and 3/1 to 3/6 was not maintainable.
2. Facts
leading to the present petition, in nutshell, are as under :
One
Maganbhai Naranbhai Valand husband of petitioner No.1 and father
of petitioner No.2, was owner of the land in question and Umtaji
Lilaji Thakore was tenant of the land in question. Proceeding under
Section 32G of the Bombay Tenancy and Agricultural Lands Act,1948
came to be initiated by respondent No.1 and Umtaji Lilaji Thakore
was declared as tenant of the land in question. He refused to pay the
purchase price and, therefore, sale in his favour came to be declared
ineffective. Thereafter, the property was ordered to be disposed of
under Section 32-P of the Bombay Tenancy and Agricultural Lands Act
and accordingly by order dated 22/11/1968, the said land was ordered
to be given to Maganbhai Naranbhai Valand, who was original land
owner, under Section 32P(7) and (8) of Bombay Tenancy and
Agricultural Lands Act, as restricted new tenure land. Necessary
entry to that effect also came to be mutated into Hak Patrak i.e.
Village Form No.6 vide entry No.301, which came to certified on
04/04/1970.
It
appears that thereafter heirs of original tenant i.e. respondent
Nos.2 and 3/1 to 3/6 approached Mamlatdar & ALT, Gandhinagar
under Section 32-P of the Bombay Tenancy and Agricultural Lands Act
by submitting that they are in possession of the land in question and
still cultivating the land in question and petitioners heirs of
original land owner have never restrained them from cultivating the
land in question and, therefore, they are entitled to purchase the
land in question. The said application submitted by the aforesaid
respondents was registered as Tenancy Case No.4/97, which came to be
allowed by Mamlatdar & ALT, Gandhinagar by order dated 30/08/1997
and directed to dispose of the land at the administration of the
Collector and to dispose of the land in accordance with Section 32-P
of the Bombay Tenancy and Agricultural Lands Act. Being aggrieved and
dissatisfied with the order passed by Mamlatdar & ALT,
Gandhinagar dated 30/08/1997, the petitioners being heirs of original
landlord preferred Revision Application No.SRD/4/99 [According to
this Court, the said Revision Application against the order of
Mamlatdar & ALT, Gandhinagar was not maintainable] before
Secretary (Appeals), Revenue Department, State of Gujarat and
Secretary (Appeals), Revenue Department, State of Gujarat dismissed
the said Revision Application and confirmed the order passed by
Mamlatdar & ALT, Gandhinagar dated 30/08/1997 in Tenancy Case
No.4/97. Being aggrieved and dissatisfied with the orders passed by
Mamlatdar & ALT, Gandhinagar and Secretary (Appeals), Revenue
Department, State of Gujarat, the petitioners heirs of original
landlord have preferred the present petition under Articles 226 and
227 of the Constitution of India.
3. Mr.Bukhari,
learned advocate appearing on behalf of the petitioners has made only
one submission that order passed under Section 32-P of the Bombay
Tenancy and Agricultural Lands Act disposing the said land in favour
of Maganbhai Valand original landlord and the petitioners
heirs of original landlord were already impleaded and necessary
mutation entry is made in the revenue record and even at the time
when application was submitted by respondent Nos.2 and 3/1 to 3/6,
they were not in possession of the land in question and, therefore,
application submitted by respondent Nos.2 and 3/1 to 3/6 before
Mamlatdar & ALT was not maintainable. No other submissions have
been made.
4. Having
heard learned advocates appearing on behalf of the respective parties
and considering the orders passed by both the authorities below, it
appears that even in the year 1993, Maganbhai Valand original
landlord – father of petitioner No.2 served Notice upon respondent
Nos.2 and 3/1 to 3/6 calling upon them to hand over the possession of
the land in question, meaning thereby, respondent Nos.2 and 3/1 to
3/6 were in possession of the land in question. Under the
circumstance, the contention on behalf of the petitioners that when
respondent Nos.2 and 3/1 to 3/6 submitted application under Section
32-P of the Act, they were not in possession of the land in question,
cannot be accepted. In view of the above, respondent Nos.2 and 3/1 to
3/6 submitted application under Section 32-P of the Bombay Tenancy
and Agricultural Lands Act to the effect that they were in possession
of the land in question and cultivating the land in question and the
said application came to be allowed by Mamlatdar & ALT and
directed to dispose of the said land under Section 32-P of the Bombay
Tenancy and Agricultural Lands Act, it cannot be said that the said
order is in any way illegal and/or contrary to the provisions of the
statute.
5. In
view of the above and for the reasons stated hereinabove, there is no
substance in the present petition, which deserves to be dismissed and
is accordingly dismissed. Rule is discharged. Ad-interim relief
granted earlier, if any, stands vacated forthwith. No costs.
[M.R.SHAH,J]
*dipti
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