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SCA/6581/2010 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 6581 of 2010
=========================================
AJITRAY
KESHAVLAL JANI & 1 - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH LD. SECRETARY & 1 - Respondent(s)
=========================================
Appearance :
MR
NV GANDHI for
Petitioner(s) : 1 - 2.
MR MR MENGDEY, AGP for Respondent(s) :
1,
NOTICE SERVED for Respondent(s) : 1 -
2.
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CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 28/07/2010
ORAL
ORDER
1. By
way of this petition under Article 227 of the Constitution of India
the petitioners have prayed for an appropriate writ, order or
direction quashing and setting aside the impugned judgement and order
dated 13/08/2009 passed by the learned Gujarat Revenue Tribunal in
Revision Application No. TEN.BA 140/1993 by which the learned
tribunal has dismissed the Revision Application confirming the order
passed by the Deputy Collector (Land Reforms), Gandhinagar dated
19/01/1992 in Tenancy Appeal No. 18/1989.
2. The
dispute is with respect to the land bearing Survey No. 208/2
admeasuring 1 Acre and 28 Gunthas of land situated at village
Dolarana, Vasna, Taluka and District Gandhinagar. At the relevant
time, Shri Harivallabh Manilal and Shri Ashwinkumar Ramniklal were
the occupants and landlords of the land in question. Respondent no.
2 claimed to be the tenant (ganotia) of the disputed land in
question and his name came to be entered in the revenue record as
tenant. Since the landlord was minor, the purchase was postponed
with respect to the suit land considering the provisions of the
Bombay Tenancy Act. Thereafter, respondent no. 2-tenant made an
application to the Mamlatdar & ALT, Gandhinagar showing his
willingness purchase the suit land under Section 32F of the Bombay
Tenancy Act, which was registered as Tenancy Case No. 957/1976. Vide
order dated 18/12/1976, the Mamlatdar & ALT allowed the
application and passed an order to take action under Section 84 of
the Bombay Tenancy Act for getting possession of the land in question
and to inform accordingly so that the purchase price can be fixed
under Section 32G of the Bombay Tenancy Act in favour of the tenant
since the tenant was cultivating the suit land. It appears that the
original landlord, Shri Ashwinkumar Ramniklal, in whose name the land
in question was mutated in the revenue record as landlord, did not
challenge the said order. It appears that after the order passed by
the Mamlatdar & ALT, Gandhinagar came to be passed, the land in
question came in the share of the father of the petitioners i.e
Keshavlal Jani and his name was mutated in the revenue record vide
mutation entry no. 1228 dated 03/10/1977. The said Shri Keshavlal
Jani died on 15/08/1987 and during his life time the said Shri
Keshavlal Jani did not challenge the order passed by the Mamlatdar &
ALT dated 18/12/1976 in Tenancy Case No. 957/1976 and in the
meantime, order came to be passed under Section 32P of the Bombay
Tenancy Act. Thereafter, the petitioners challenged the order passed
by the Mamlatdar & ALT dated 18/12/1976 in Tenancy Case No.
957/1976 after a period of twelve years before the Deputy Collector,
being Tenancy Appeal No. 19/1989 and the Deputy Collector (Land
Reforms), Gandhinagar vide order dated 19/01/1992 dismissed the said
appeal on the ground of limitation. Being aggrieved and dissatisfied
with the order passed by the Deputy Collector (Land Reforms),
Gandhinagar dated 19/01/1992 in Tenancy Appeal No. 18/1989 the
petitioners preferred Revision Application No. TEN.B.A. 140/1993
before the learned Gujarat Revenue Tribunal, Ahmedabad and the
learned Gujarat Revenue Tribunal vide impugned judgement and order
dated 13/08/2009 dismissed the said Revision Application confirming
the order passed by the Deputy Collector. Hence, the petitioners
have preferred the present Special Civil Application under Article
227 of the Constitution of India.
3. Shri
N.V. Gandhi, learned advocate appearing on behalf of the petitioners
has vehemently submitted that the learned Gujarat Revenue Tribunal as
well as the Deputy Collector (Land Reforms), Gandhinagar have
materially erred in dismissing the appeal preferred by the
petitioners on the ground of delay. It is submitted that as the
petitioners were prosecuting the proceedings under Section 32P of
the Bombay Tenancy Act before the State Government, the petitioners
could not prefer an appeal before the Deputy Collector and
considering the above the learned tribunal ought to have entertained
the application and ought to have decided the same on merits. Shri
Gandhi, learned advocate appearing on behalf of the petitioners has
submitted that the order passed by the Mamlatdar & ALT dated
18/12/1976 in Tenancy Case No. 957/1976 is a nullity and non-est as
the Mamlatdar & ALT could not have passed the order under Section
32F of the Bombay Tenancy Act as the said application under Section
32F of the Act was not preferred within the period of one year when
the original landlord attained the age of majority, and, therefore,
it is submitted that the authorities below ought to have considered
the appeal preferred by the petitioners on merits. It is submitted
that even otherwise in view of the subsequent order passed under
Section 32P of the Bombay Tenancy Act and under Section 70(b) of the
Bombay Tenancy Act, the order passed by the Mamlatdar & ALT dated
18/12/1976 in Tenancy Case No. 957/1976 deserves to be quashed and
set aside. By making the above submissions, it is requested to
admit/allow the present Special Civil Application.
4. At
the outset, it is required to be noted that the order came to be
passed by the Mamlatdar & ALT under Section 32F of the Bombay
Tenancy Act in favour of respondent no. 2-tenant as far back as in
the year 1976 and the said order was not challenged by Shri
Ashwinkumar Ramniklal, who was the landlord at the relevant time and
in whose name the land in question was mutated. At the relevant
time, it is only Shri Ashwinkumar Ramniklal-original landlord, who
could have challenged the order passed by the Mamlatdar & ALT
under Section 32F of the Bombay Tenancy Act. It is also required to
be noted that even thereafter when Shri Keshavlal Jani, father of the
petitioners got the land in partition and his name was mutated in
the revenue record in the year 1977, during his life time, he did not
challenge the order passed by the Mamlatdar & ALT under Section
32F of the Bombay Tenancy Act and he died in the year 1987. Only
thereafter, the third generation i.e. the petitioners challenged the
order passed by the Mamlatdar & ALT after a period of twelve
years, which was never challenged earlier by the landlord and the
appeal preferred by the petitioners came to be dismissed by the
Deputy Collector on the ground of delay of approximately twelve
years.
5. The
submissions of Shri Gandhi, learned advocate appearing on behalf of
the petitioners that as the petitioners were prosecuting the
proceedings under Section 32P of the Bombay Tenancy Act before the
State Government, the petitioners could not prefer an appeal before
the Deputy Collector and thereafter when the appeal was preferred,
the Deputy Collector ought to have considered the appeal on merits,
however, the aforesaid cannot be accepted. As the order under
Section 32P was passed in the year 1988 and the petitioners
challenged the order under Section 32P of the Bombay Tenancy Act in
the year 1989 and the order passed by the Mamlatdar & ALT was
passed in the year 1976, there is no explanation for the delay
between 1976 and 1988. The learned advocate appearing on behalf of
the petitioners is not in a position to explain the delay of twelve
years between 1976 and 1988. Considering the above huge delay and
more particularly when the original landlord did not challenge the
order passed by the Mamlatdar & ALT dated 18/12/1976 in Tenancy
Case No. 957/1976, the Deputy Collector has rightly dismissed the
appeal preferred by the petitioners on the ground of delay, which is
rightly confirmed by the Gujarat Revenue Tribunal vide impugned order
dated 13/08/2009.
6. The
submission that in view of the subsequent order passed by the
Mamlatdar & ALT under Section 70(b) of the Bombay Tenancy Act,
the order passed by the Mamlatdar & ALT dated 18/12/1976 in
Tenancy Case No. 957/1976 shall not survive and/or the same deserves
to be quashed and set aside, cannot be accepted. It is to be noted
that the order passed under Section 32F of the Bombay Tenancy Act has
been passed in the year 1976 and the order under Section 70(b) of
the Bombay Tenancy Act has been passed in the year 1987. The
subsequent order cannot nullify the earlier order passed by the
Mamlatdar & ALT under Section 32F of the Bombay Tenancy Act.
7. Now
so far as the contention on behalf of the petitioners that the order
passed by the Mamlatdar & ALT dated 18/12/1976 in Tenancy Case
No. 957/1976 was a nullity and/or non-est is concerned, at the
outset, it is required to be noted and as stated hereinabove, the
said order was never challenged by the earlier landlord and even by
the father of the petitioners during his life time. Even a non-est
order and/or the order, which according to the petitioners, is a
nullity is required to be challenged within the period of limitation
and within the reasonable time. Under the circumstances, the
aforesaid submissions on behalf of the petitioners cannot be
accepted.
8. In
view of the above and for the reasons stated hereinabove, no
illegality has been committed by the learned Gujarat Revenue Tribunal
in dismissing the Revision Application and confirming the order
passed by the Deputy Collector (Land Reforms), Gandhinagar, which
calls for interference of this Court in exercise of powers under
Article 227 of the Constitution of India.
9. Under
the circumstances, the present petition deserves to be dismissed and
is accordingly dismissed.
(M.R.
SHAH, J.)
siji
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