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SCA/10673/2009 4/ 6 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10673 of 2009
=====================================================
JASHBHAI
CHHOTABHAI PATEL & 5 - Petitioner(s)
Versus
STATE
OF GUJARAT & 11 - Respondent(s)
=====================================================
Appearance :
Mr.Mihir
Joshi,learned Senior Advocate with MR SN THAKKAR for Petitioner(s) :
1 - 6.
Mr.Jaswant K.Shah,learned ASST.GOVERNMENT PLEADER for
Respondent(s) : 1,
NOTICE SERVED for Respondent(s) : 1 - 3,6 -
8,10 - 11.
MR KV SHELAT for Respondent(s) : 2 - 4,6 -
10.
UNSERVED-EXPIRED (N) for Respondent(s) : 5,
- for
Respondent(s) : 0.0.0
=====================================================
CORAM
:
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 29/04/2010
ORAL
ORDER
1. I
have heard Mr.Mihir Joshi,learned Senior Advocate with
Mr.S.N.Thakkar,learned advocate for the petitioners. It is submitted
by Mr.Mihir Joshi that respondents Nos.2 to 10, who are the original
land owners, entered into a transaction of sale of land bearing
Survey No.847, admeasuring 20933 sq.yards situated in village
Vejalpur, Taluka, City, District,sub-District Ahmedabad (the Suit
land) with respondents Nos.11 and 12, on 5-12-1980, by two
Registered Sale Deeds. Proceedings under Section 84-C of the Bombay
Tenancy and Agricultural Lands Act,1948 ( The Tenancy Act for
short) were initiated for breach of the provisions of Section 63 of
the Tenancy Act. By order dated 23-12-1987, the Mamlatdar held that
there was no breach of the provisions of Section 63 of the Tenancy
Act, and the sale transactions were held to be valid. The order of
the Mamlatdar was subjected to Suo Motu revision by the Deputy
Collector and by order dated 21-3-1989, the Deputy Collector
confirmed the order of the Mamlatdar. Thereafter, on 25-4-1989,
respondent No.12 sold the parcel of land purchased by her from the
original land owners to the petitioners, by way of a Registered Sale
Deed. A Mutation Entry to this effect was mutated in the Revenue
Records on 26-4-1989, which was certified on 31-5-1989. It is
further submitted by the learned Senior Advocate that after about
sixteen years, respondents Nos.2 to 10 (original land owners) filed a
Revision Application before the Gujarat Revenue Tribunal, ( The
Tribunal for short) stating that on the date on which
respondents Nos.11 and 12 had purchased the land from them, the said
respondents were not agriculturists and, therefore, the sale
transactions were illegal and invalid. The Tribunal, by order dated
8-8-2008, allowed the Revision Application filed by the original land
owners. The learned Senior Advocate has further contended that the
said order of the Tribunal has been passed without joining the
petitioners, who have purchased the land in question from respondent
No.12, and are in open possession thereof from 1989. It is further
submitted that the Review Application filed by the petitioners for
re-call of the order dated 8-8-2008, on the ground that the
petitioners are affected parties and ought to have been heard before
passing the order, has been dismissed on various grounds which are
not sustainable in law.
The
learned Senior Advocate has placed reliance upon a judgment of this
Court in A.B.Patel v. State of Gujarat, reported in 1999(2) GLH
314 in support of the proposition that the Tribunal has power to
review procedural matters and can always correct palpable errors of
law in order to do substantial justice. It is further contended that
the prayer of the petitioners that they have not been heard is
procedural in nature, and in this view of the matter,it cannot be
said that the Review Application was not maintainable. It is further
submitted that in any case, the Tribunal has not held that the Review
Application is not maintainable nor that it does not have the power
of review, but the impugned order has been passed without
considering various vital aspects of the matter such as the fact that
the Revision Application has been filed by the vendor of the land who
has already pocketed the consideration and has no locus standi, as
held in Smt.Ratnaprabhabai v. Tulsidas V.Patel, reported in
1982(2) GLR 213. Further, it is emphasised by the learned Senior
Advocate that in the impugned order,it has been stated that the
petitioners are not parties to the Revision Application, without
considering the fact that the original land owners have deliberately
not joined them, though they were aware that the land has been
purchased by the petitioners, regarding which Mutation entries are
there in the revenue record. It is forcefully argued by the learned
Senior Advocate that the petitioners are vitally affected parties who
have acquired certain vested rights in the property, and by
dismissing the Review Application filed by them, the Tribunal has
committed a serious error of law. It is,therefore, submitted by the
learned Senior Advocate, that the petition be admitted and interim
relief granted.
2. Mr.K.V.Shelat,learned
advocate for respondents Nos.2 to 10 (original land owners) has
opposed the admission of the petition and grant of interim relief, on
the ground that the petitioners have stepped into the shoes of the
first purchasers of the land (respondents Nos.11 and 12) who were
not agriculturists on the date when the sale transaction took place,
therefore,the petitioners cannot have a better title to the land than
the persons from whom they have purchased it. It is further
submitted, that the Tribunal could not have entertained the Revision
Application in view of the judgment of this Court in
Smt.Ratnaprabhabai v. Tulsidas V.Patel (Supra). The learned
advocate for respondents Nos.2 to 10 has contended that respondents
Nos.11 and 12 have committed a fraud on the original land owners, as
well as on the court, and that the petitioners do not have any locus
standi to approach the Court.
3. Mr.Devan
Parikh,learned advocate for respondents Nos.11 and 12 has supported
the stand of the petitioners.
4. Mr.Jaswant
K.Shah,learned Assistant Government Pleader has submitted that the
State Government has not approached the Tribunal by way of Revision
and has brought to the notice of this Court judgment in Lalbhai
Trading Company v. Union of India, reported in 2006(1) GLR 497.
5. I
have heard the learned counsel for the respective parties and
considered the lengthy and elaborate submissions made by them.
Several issues of law have been raised, which require deeper
consideration. Prima facie, the petitioners have made out a case for
admission of the petition and grant of interim relief.
6. Issue
Rule, returnable on 26-7-2010. Interim relief, in terms of paragraph
8(B) is granted,till the final decision of the petition.
arg
(Smt.Abhilasha Kumari,J)
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