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SCA/12587/2009 5/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 12587 of 2009
With
SPECIAL
CIVIL APPLICATION No. 12588 of 2009
===================================
LAXMANJI
MANGAJI THAKORE & 4 - Petitioner(s)
Versus
SURYAKUMAR
JAMIYATRAM PANDYA, THRO POA DINESH JAYANTILAL & 11 -
Respondent(s)
===================================
Appearance :
MR
AMAR D MITHANI for Petitioner(s) : 1 - 3,3.2.1 - 5.
None for
Respondent(s) : 1 - 2, 2.2.1, 2.2.2, 2.2.3,2.2.4 -
12.
===================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 12/01/2010
ORAL
ORDER
1. As
common question of law and facts arise in both these petitions and in
both these petitions, common judgment and order passed by the Gujarat
Revenue Tribunal is under challenge, both these petitions are being
disposed of by this common order.
2. By
way of this petition under Article 227 of the Constitution of India,
common petitioners have prayed for an appropriate writ, direction and
order quashing and setting aside the impugned common judgment and
order passed by the Gujarat Revenue Tribunal dated 27.3.2008 passed
in Revision Application TEN.BA Nos. 153 of 2005 and 154 of 200, by
which the Gujarat Revenue Tribunal has dismissed the said revision
applications.
3. The
facts leading to the present Special Civil Applications in nutshell
are as under:
The
dispute is with respect to the land bearing survey No. 201,
admeasuring 2 Acres and 24 Gunthas situated in the sim of Village of
Vasna Tal: City, Dist. Ahmedabad. That the petitioners submitted one
application under Section 70 B of the Bombay Tenancy Act to declare
them as tenant (Ganotia) which was registered as Tenancy Case No. 46
of 1995. Along with the said application, petitioners submitted
application seeking interim relief under Section 70(nb).. That on
account of the compromise between the parties, Tenancy Case No. 46 of
1995 pending before the Mamlatdar and ALT came to be withdrawn by the
petitioners. The Mamlatdar & ALT, after verifying the withdrawal,
dismissed the said application by his order dated 17.12.1997. It
appears that the order of Mamlatdar and ALT dated 17.12.1997 was
taken in Suo Motu Revision by the Deputy Collector, (Land Reforms),
Appeals, Ahmedabad by registering the Revision Case No. 213 of 1998.
It appears that during the course of hearing of the said Revision
Application No. 213 of 1998, it was contended on behalf of the
petitioner that originally, village Vasna was Inami village and the
grandfather of the petitioner was rdeclared tenant of the suit land
and thereafter their names were recorded as tenant in the year 1957.
It was also submitted before the Deputy Collector by the petitioners
that they are residing in the suit land with their family. It was
also contended that Regular Civil Suit No. 2628 of 1982 and 4539 of
1994 were pending in the Civil Court. It was also further submitted
that father of the opponent who was an advocate did not allow the
applicant to prove their rights and matter was got withdrawn by
practicing fraud upon them. It was also submitted on behalf of the
petitioners that the withdrawal was also made behind their back.
That the Deputy Collector by a reasoned order confirmed the order
passed by the Mamlatdar and ALT dated 17.12.1997, by his order dated
17.3.2005. Being aggrieved and dissatisfied with the order passed by
the Deputy Collector (Land Reforms), Ahmedabad dated 17.3.2005,
petitioners preferred Revision Application TEN.BA No. 154 of 2005.
That
against the order of the Mamlatdar and ALT dated 17.12.1997, passed
in Tenancy Case No. 46 of 1995 the petitioner preferred Tenancy
Appeal before the Deputy Collector (Land Reforms), Appeals which came
to be rejected by the Deputy Collector by order dated 28.4.2005 on
the ground that as the order of the Mamlatdar and ALT dated
17.12.1997 was taken in Suo Motu Revision by him and the same was
decided on 17.3.2005. Being aggrieved and dissatisfied with the order
passed by the Deputy Collector (Land Reforms), Appeals, Ahmedabad
dated 28.4.2004, the petitioners preferred Revision Application
TEN.BA Nos. 153 of 2005. Both the aforesaid revision applications
being Revision Application TEN.BA Nos. 153 of 2005 and 154 of 2005
were consolidated and heard together and by impugned common judgment
and order, Gujarat Revenue Tribunal has dismissed both the aforesaid
revision applications. Hence, the petitioners have preferred the
present Special Civil Application under Article 227 of the
Constitution of India challenging the common judgment and order
passed by the Gujarat Revenue Tribunal in aforesaid Revision
Application TEN.BA Nos. 153 of 2005 and 154 of 2005.
4. Shri
Amar D Mithani, learned advocate for the petitioners has vehemently
submitted that Gujarat Revenue Tribunal has materially erred in
dismissing the aforesaid revision applications confirming the orders
passed by the Mamlatdar & ALT as well as the Deputy Collector
(Land Reforms), Appeals. It is submitted that hearing of the revision
applications was scheduled on 13.2.2006 and thereafter impugned order
came to be passed on 27.3.2008 i.e. after a period of two years and
one month so in all fairness,one another opportunity of hearing was
required to be afforded to the petitioners.
5. It
is further submitted that even on merits also the judgment and order
passed by the Gujarat Revenue Tribunal is required to be quashed and
set aside. It is submitted that the Tribunal has materially erred in
not considering the specific case of the petitioners that the
withdrawal pursis dated 22.5.1997 was not signed by the petitioners
and the advocate, who produced it, was not even engaged by the
petitioners. It is further submitted that even the learned tribunal
has not considered the factum of possession of the petitioners though
it was specifically pleaded. It is submitted that as such withdrawal
pursis alleged to have been submitted by the petitioners to withdraw
the Tenancy Case was behind the back of the petitioners and the
aforesaid aspect was required to be considered by the Gujarat Revenue
Tribunal as valuable rights of the petitioners have been taken away.
No other submissions have been made.
6. Having
heard the learned advocate for the petitioners and considering the
impugned common judgment and order passed by the Gujarat Revenue
Tribunal, it appears that the Mamlatdar and ALT passed an order dated
17.12.1997 dismissing the Tenancy Case No. 46 of 1995 and the order
passed by the Mamlatdar and ALT dated 17.12.1997 was taken in Suo
Motu revision by the Deputy Collector (Land Reforms), Appeals,
Ahmedabad in the year 1998 itself and the petitioners appeared before
the Deputy Collector in the said proceedings meaning thereby they
were aware of the order passed by the Mamlatdar and ALT dated
17.12.1997, still they did not challenge the same by way of appeal
till April 2005 and only after Deputy Collector (Land Reforms),
Appeals, Ahmedabad confirmed the order passed by the Mamlatdar and
ALT dated 17.12.1997 by order dated 17.3.2005, the petitioners
preferred Tenancy Appeal on 13.5.2005. Thus, the order passed by the
Mamlatdar and ALT was not challenged by the petitioners for long
period of 7 years. Considering the fact that the order passed by the
Mamlatdar & ALT dated 17.12.1997 was confirmed by the Deputy
Collector (Land Reforms), Appeals, Ahmedabad by an order dated
17.3.2005, appeal preferred by the petitioners in the month of April
2005 against the order passed by the Mamlatdar and ALT dated
17.12.1997 is rightly rejected by the Deputy Collector (Land
Reforms), Appeals, Ahmedabad by order dated 28.4.2005 (which was the
subject matter of the revision application TEN.BA No. 153 of 2005) on
the ground that once the order in appeal has been confirmed by the
Deputy Collector (Land Reforms), Appeal against the main order also
deserve to be dismissed. No illegality has been committed by the
Deputy Collector (Land Reforms) Appeals, Ahmedabad in rejecting the
appeal preferred by the petitioners on 13.4.2005 which is rightly
confirmed by the Gujarat Revenue Tribunal by dismissing the Revision
Application TEN.BA No. 153 of 2005. Under the circumstances, judgment
and order passed by the Gujarat Revenue Tribunal passed in Revision
Application TEN.BA No. 153 of 2005 is not required to be interfered
with by this Court in exercise of powers under Article 227 of the
Constitution of India.
7. Now
so far as the order passed by the Gujarat Revenue Tribunal passed in
Revision Application TEN.BA No. 154 of 2005 in dismissing the same
and confirming the order passed by the Deputy Collector (Land
Reforms), Appeals, Ahmedabad dated 17.3.2005 passed in Suo Motu
Revision Case No. 213 of 1998 in confirming the order passed by the
Mamlatdar and ALT dated 17.12.1997 passed in Tenancy Case No. 46 of
1995 is concerned, it is to be noted that there were two Civil Suits
pending between the parties with respect to the very land in question
being Regular Civil Suit Nos. 2628 of 1982 and 4539 of 1994 and there
was a compromise between the parties in the said suit on 23.5.1997and
a decree came to be passed by the Civil Court and the very
petitioners acknowledged and accepted the ownership and the
possession of the opponent. A similar compromise was arrived at in
Tenancy Case No. 46 of 1995 and the same came to be withdrawn by the
petitioners. Considering the compromise arrived at between the
parties dated 23.5.1997 in Regular Civil Suit Nos. 2628 of 1982 and
4539 of 1994 and a decree came to be passed by the Civil Court, it
cannot be said that the compromise pursis submitted by the
petitioners before the Mamlatdar & ALT was behind the back of the
petitioners. The petitioners have never challenged the compromise
arrived at between the parties on 23.5.1997 by which they
acknowledged and accepted ownership and possession of the respondent
herein. Considering the aforesaid facts and circumstances, the
Gujarat Revenue Tribunal has rightly rejected / dismissed the
Revision Application TENBA. No. 154 of 2005 confirming the order
passed by the Deputy Collector (Land Reforms), Appeals, Ahmedabad
dated 17.3.2005 passed in Suo Motu Revision confirming the order
passed by the Mamlatdar and ALT dated 17.12.1997, which does not
calls for the interference of this Court in exercise of powers under
Article 227 of the Constitution of India.
8. In
view of the above and for the reasons stated above, there is no
substance in the present petition, which deserves to be dismissed and
is accordingly dismissed.
(M.R.SHAH,
J.)
kaushik
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