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SCA/3321/1994 5/ 5 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 3321 of 1994
For
Approval and Signature:
HONOURABLE
MR.JUSTICE KS JHAVERI
=========================================================
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 ?
=========================================================
BALVINBHAI
SHANABHAI & 1 - Petitioner(s)
Versus
RANA
PUNJABHAI RANCHODBHAI & 1 - Respondent(s)
=========================================================
Appearance :
MR
HARSHIL DHOLAKIYA FOR for
Petitioner(s) : 1, 1.2.1, 1.2.2, 1.2.3, 1.2.4,1.2.5 - 2, 2.2.1,
2.2.2, 2.2.3, 2.2.4, 2.2.5,2.2.6
MR MC SHAH for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 29/09/2010
ORAL
JUDGMENT
In
view of the communication dated 24/09/2010
made by petitioner No.1/5 Fulasinh Sanabhai, legal heir of original
petitioner No.1, petition qua heirs of petitioner No.1 stands
disposed of. A xerox copy of communication is taken on record.
2. By
way of this petition the petitioner has challenged the order passed
by the Gujarat Revenue Tribunal dated 22/10/1993 and the order passed
by the Mamlatdar and ALT in Tenancy No.28.C.9231-79 dated 24/10/1979
and has further sought relief to hold that the certificate which has
been issued on 31/12/1968 under Section 80 (C) of the Bombay Tenancy
Act is bad and illegal and further to hold that the present
petitioners are the tenants of the land in question.
3. The
facts giving rise to the present petition are that respondent herein
had filed an application under Section 88 (C) of the Bombay Tenancy
and Agricultural Lands Act, 1948 for exemption. The said application
was opposed by the petitioners herein – tenants on the ground that it
was not filed within six months from the date of his attaining
majority by Punjabhai. It is submitted by Punjabhai that his date of
birth was 01/06/1947 but this was not admitted by the tenants who
contended that date of birth of Punjabhai was 29/12/1943. Earlier,
the Mamlatdar had found that the birth date of Punjabhai was
01/06/1947 and the application was within the time and has ordered to
issue certificate in favour of landlord
respondent herein under Section 88 (C) of the Act. Against the said
order, petitioner – tenant had preferred Tenancy Appeal which was
dismissed by the Special Deputy Collector, Vadodara by his order
dated 10/12/1969. The said appeal was challenged by way of Revision
Application No.TEN.A.315/70 which came to be allowed by remanding the
matter back to the Mamlatdar quashing and setting aside the order of
lower Courts directing to conduct fresh inquiry with regard to the
date of birth of Punjabhai and to decide the matter in accordance
with law. Thereafter, the Mamlatdar again having heard the parties
vide order dated 25/10/1975 has held that birth date of Punjabhai as
per school certificate was 01/06/1947 and same was correct. Against
the said order the petitioner – tenant preferred an appeal before the
Deputy Collector, Tenancy Appeal who by order dated 31/07/1978 partly
allowed the appeal setting aside the order of the Deputy Collector
and directed further inquiry by calling for the record of the school
register and to verify as to whether it had been manipulated in any
way and then to pass orders according to law. Hence, under the order
of the Deputy Collector the matter went back and the Mamlatdar
conducted further inquiry as directed and passed an order dated
24/10/1979 to the effect that the birth date of Punjabhai
Ranchhodbhai Ranan was 01/06/1947 and certificate earlier granted
under Section 88 (C) was legal and proper which came to be upset by
the Deputy Collector in appeal filed by Sanabhai
Shankerbhai. Thereafter, Revision Application was preferred which
came to be allowed quashing and setting aside the order of the Deputy
Collector, which has given rise to the present petition.
4. The
main contention of the learned Advocate for the petitioner is that
application was time barred as the petitioner was born prior to year
1943. It is submitted by learned Advocate that the Mamlatdar and ALT
has reached to the conclusion which is not based on cogent reason and
documentary evidence and the Deputy Collector (Appeals) has rightly
appreciated this fact and set aside the order passed by the Mamlatdar
and ALT. However, again the Tribunal has erred in upholding the order
passed by the Mamlatdar. It is further submitted that Punjabhai had
already become major on 29/12/1961 and therefore the application was
not within six months from that date and hence the application
seeking exemption under Section 88 C ought to have been rejected.
The evidence on which the Tribunal has relied upon viz., school
leaving certificate has been proved contrary to the statement of
mother of Punjabhai.
5. Having
heard the learned Advocate for the petitioner and having perused the
orders passed by the authorities below, this Court is of the opinion
that the GRT has after considering the evidence which was discussed
by the Mamlatdar and ALT on the basis of the evidence in the form of
school leaving certificate come to the conclusion that the
application was within the limitation and on the basis of the
register of the school the said evidence was relied upon. The GRT
has in paragraph No.6 has observed as under:
“6……
It is apparent that there is some conflict so far as the evidence on
record is concerned. It would, however, like to rely upon the school
leaving certificate, which is duly proved and which for all legal and
practical purposes is acceptable, as true and correct. Here the
school leaving certificate shows the date of birth of Punjabhai to be
01/06/1947 and therefore he would be major only on 01/06/1965 and,
therefore his application made on 29/11/1965 to the Mamlatdar for
exemption certificate under sec. 88 C would be within the prescribed
time limit, as per Section 88C read with Rule 53 of the Rules…..”
6. In
the above view of the matter the authorities have rightly considered
the evidence so far as the date of birth of landlord is concerned.
This Court is in complete agreement with the findings arrived at by
the authorities below. The petition is therefore dismissed. Rule is
discharged with no order as to costs. Interim-relief stands vacated.
7. At
this stage, learned Advocate for the petitioner requests for
extension of the stay since the petitioners are surviving only on the
basis of the land in question. Hence, looking to facts and
circumstances the stay is extended for a period of one month from
today.
(K
S JHAVERI, J.)
sompura
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