SCA/8241/2008 7/ 7 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8241 of 2008 For Approval and Signature: HON'BLE SMT. JUSTICE ABHILASHA KUMARI ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? NO 2 To be referred to the Reporter or not ? NO 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 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 ? NO 5 Whether it is to be circulated to the civil judge ? NO ========================================================= MANIBEN WD/O BHAGUBBHAI BABARBHAI PATEL & 2 - Petitioner(s) Versus DISTRICT COLLECTOR & 2 - Respondent(s) ========================================================= Appearance : MR KK TRIVEDI for Petitioner(s) : 1 - 3. MR JASWANT K SHAH, AGP for Respondents ========================================================= CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI Date : 18/06/2008 ORAL JUDGMENT
Rule.
Mr.Jaswant K.Shah, learned Assistant Government Pleader, waives
service of notice of Rule on behalf of the respondents. In the facts
and circumstances of the case and with the consent of the learned
counsel for the parties, the matter is taken up for final hearing
today.
This
petition under Article 226 of the Constitution of India has been
filed with the following prayers:
ýS(A) Your
Lordships may be pleased to admit this petition.
(B) Your
Lordships may be pleased to issue a writ in nature of mandamus or
writ in nature of certiorari or any other appropriate, writ/s
order/s, and/or direction/s quashing and setting aside the undated
notice (Annexure-A) issued by the respondent no.1 on 24.05.2007.
(C) Pending
admission hearing and final disposal of this petition, Your Lordship
may be pleased to grant interim/ ad-interim relief/ staying the
operation, implementation and execution of the undated notice
(Annexure-A) issued by the respondent no.1 on 24.05.2007.
(D) Your
Lordships may be pleased to pass any such other and/or further
order/s, thought just and proper, in the interest of justice.ýý
Briefly
stated, the facts of the case are that the petitioners are the
original owners and in possession of the land bearing Block No.2070,
Old Revenue Survey No.1464/3 of Village Sadakpor, Taluka: Chikhli,
District: Navsari, admeasuring approximately 1518 Sq.Mtrs.
(hereinafter referred to as the land in question). The respondent
No.3, i.e. the Mamlatdar and ALT, Chikhli, passed an order dated
29.10.2002, annexed as Annexure-B to the petition in Tenancy case
No.70-O/50/2002 under Section 70(o) of the Bombay Tenancy and
Agricultural Lands Act, 1948 (hereinafter referred to as ýSthe Actýý
for short), declaring that the petitioners are occupying the land in
question as permanent tenants. The restrictions under the provisions
of Section 43 of the Act were removed by the respondent No.3. In
pursuance of the above said order, the necessary effect was given in
the relevant revenue records by Mutation Entry No.11531 dated
30.10.2002, which was certified on 30.11.2002. A copy of the same is
annexed as Annexure-C to the petition. Thereafter, the petitioner
No.3 purchased the land in question from the petitioners No.1 and 2
by way of a registered Sale Deed No.20 dated 6.1.2003, a copy of
which is annexed as Annexure-D to the petition. The name of the
petitioner No.3 was entered in the revenue records by Mutation Entry
No.11580 dated 6.1.2003, a copy of which is annexed as Annexure-E to
the petition.
The
case of the petitioners is that the respondent No.2 has not
challenged the order dated 29.10.2002 (Annexure-B to the petition)
passed by the respondent No.3 till today. However, the State
Government issued a Circular dated 7.10.2005 empowering the District
Collector (respondent No.1) to decide the cases under the provisions
of Section 43 of the Act. Pursuant thereto, the District Collector
issued an undated notice on 24.5.2007 (Annexure-A to the petition)
stating that the respondent No.3, i.e. the Mamlatdar and ALT,
Chikhli, had no authority to decide the question of permanent
tenancy but the said power has been vested with the respondent No.1
in view of the Circular dated 7.10.2005. It is also the case of the
petitioners that the Circular dated 7.10.2005 was challenged by a
number of persons by filing Special Civil Application No.9609 of
2006 and other allied matters and this Court, vide judgment dated
17/18/23.01.2007, has quashed and set aside the Circular dated
7.10.2005 as being ultra-vires the provisions of the Act. The
petitioners are, therefore, aggrieved by the notice issued by the
respondent No.1 on 24.5.2007 (Annexure-A to the petition), pursuant
to the Circular dated 7.10.2005 and have, therefore approached the
Court by filing the present petition.
I
have heard Mr.K.K.Trivedi, learned counsel for the petitioners and
Mr.Jaswant K.Shah, learned Assistant Government Pleader for the
respondents and have gone through the averments made in the petition
as well as the documents annexed thereto.
A
perusal of the impugned notice dated 24.5.2007 makes it clear that
it is issued by placing reliance upon the Circular dated 7.10.2005,
which has already been quashed and set aside by this Court vide
judgment dated 17/18/23.01.2007 rendered in Special Civil
Application No.9609 of 2006.
Mr.Jaswant
K.Shah, learned Assistant Government Pleader, has submitted that the
State Government has filed a Letters Patent Appeal against this
judgment but the same is lying in the Registry of the High Court for
removal of office objections.
Be
that as it may, the fact remains that the judgment of this Court
dated 17/18/23.01.2007 in Special Civil Application No.9609 of 2006,
whereby the Court has dealt with the rights of a person claiming
protection as a protected or permanent tenant, and whereby the
Circular dated 7.10.2005 of the State Government has been quashed
and set aside, still holds the field. Since the Circular dated
7.10.2005 has not yet been restored, it cannot be made applicable to
the case of the petitioners.
In
view of the above facts and circumstances, the notice issued by the
respondent No.1 on 24.5.2007 (Annexure-A to the petition) insofar as
it relates to the Circular dated 7.10.2005 of the State Government,
is quashed and set aside, with the clarification that the present
direction shall not operate as a bar to the Collector in exercising
other statutory powers, as may be available under the Act, and nor
shall the bar operate for other remedial measures against the order
of the Mamlatdar and ALT dated 29.10.2002, if otherwise permissible
in law.
The
petition is disposed of in the above terms. Rule is made absolute.
There shall be no orders as to costs.
(Smt.Abhilasha
Kumari, J.)
(sunil)