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SCA/10753/2008 5/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 10753 of
2008
=========================================================
NILESHBHAI
DAHYABHAI PATEL - Petitioner(s)
Versus
SUMANBHAI
NARAYANBHAI PATEL & 2 - Respondent(s)
=========================================================
Appearance :
MR
SHITAL R PATEL for Petitioner(s) : 1,
None for Respondent(s) : 1 -
3, 3.2.1, 3.2.2, 3.2.3, 3.2.4, 3.2.5, 3.2.6, 3.2.7, 3.2.8,
3.2.9,3.2.10
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE AKIL KURESHI
Date
: 28/08/2008
ORAL
ORDER
The
petitioner herein has challenged an order dated 30th
April, 1996 passed by Gujarat Revenue Tribunal in Revision
Application No.TEN.BA/888 of 1982 as well as order dated 25.6.1998
passed by Tribunal in review application filed by the petitioner.
There
is longish history to the litigation which can be shortly summarized
as follows:
2.1 The
issue pertains to question of tenancy with respect to land bearing
survey no.1207/1 of Anand. The land was owned by Shri Naranbhai
Patel. It is the case of the petitioner that N.A. permission was
granted with respect to the said land on 22nd November,
1964 by Collector, Kheda. Thereupon, Naranbhai Patel sold the land
in question to Shri Dayabhai Patel i.e. predecessors-in-title of the
present petitioner.
2.2 Respondent
No.3, namely, Bhavjibhai Amrabhai claiming tenancy of land in
question instituted tenancy case before Mamlatdar & ALT by
filing application on 08.02.1966. Mamlatdar & ALT dismissed the
application on 31.12.1977. Tenancy appeal was filed before Deputy
Collector challenging the order of Mamlatdar which was rejected by
the Deputy Collector by an order dated 30th November,
1981. Further revision application being TEN/BA/888/82 was allowed
by the Tribunal by judgment dated 20th September, 1985.
2.3 The
petitioner challenged the said decision of the Gujarat Revenue
Tribunal before this Court by filing Special Civil Application
No.5831 of 1985. In this petition, learned Single Judge by an order
dated 22nd July, 1993 remanded the proceedings after
quashing the order of the Tribunal for fresh consideration. In the
order, the learned Judge held that There is of course nothing
on the record to show that respondent- tenant was aware of grant of
said N.A.permission or that his consent was obtained for that. Under
the circumstances, the submission of Mr.Patel that provisions of
Bombay Tenancy Act would not be applicable to the land in question,
cannot be sustained .
2.4 Gujarat
Revenue Tribunal upon remand by its judgment dated 30th
April, 1996 once again allowed the revision application of the
tenant. Contention of the petitioner that the land having been
converted to N.A. Land, tenancy would not apply was turned down
holding that High Court has already rejected said contention. It may
be noted that the predecessors-in-title of the petitioner was
respondent No.2 before the Gujarat Revenue Tribunal when the order
dated 30th April, 1996 was being passed. In-fact, present
petitioner representing his father had appeared before the Tribunal
and had made detailed submissions.
2.5 The
petitioner filed a review application against the order of the
Tribunal which also came to be dismissed by an order dated 25th
June, 1998.
2.6 Thereafter,
the Mamlatdar initiated proceedings for fixing the purchase price
for the land in question. Petitioner opposed such proceedings at
different stages but significantly never challenged the orders
passed by the Gujarat Revenue Tribunal in the year 1996 and 1998
which are sought to be challenged in this petition. After nearly 12
years, the petitioner has sought to challenge the said orders on
several grounds.
At
this stage, I must note that there are number of inaccurate
statements made by the petitioner on oath.
First
and foremost, in the petition the petitioner has stated that this
Court by an order dated 22nd July, 1993 simply remanded
the matter to Gujarat Revenue Tribunal for fresh consideration
leaving questions open for the Gujarat Revenue Tribunal including on
the point of applicability of the Act with regard to the non
agricultural land. In the order passed by this Court,
however, learned Judge as already noted and had recorded and turned
down such a contention.
4.1 Secondly,
in the petition, the petitioner has contended that even the Gujarat
Revenue Tribunal did not deal with the said contention. Here also,
as already noted, Gujarat Revenue Tribunal in its judgment dated
30th April, 1996 not only noted but rejected such a
contention on the ground that the High Court has already turned down
the submission.
4.2 Once
again the petitioner has stated in the petition that for the first
time in the year 1996, through the review application, the
petitioner entered into the picture through the proceedings. As
noted earlier, the petitioner had participated before the Gujarat
Revenue Tribunal when the judgment dated 30th April, 1996
was passed. His father was party respondent No.2 and the petitioner
himself had participated in the proceedings. In fact Special Civil
Application No.5831 of 1985 predecessor-in-title of the present
petitioner may back in the year 1985, ever since then the petitioner
is involved in the litigation.
4.3 Though
it is stated in the petition that the land was converted into N.A.
land, from the record it appears that only a small portion of the
land was permitted for non-agriculture use.
It
is unfortunate that such series of mis-statements are made in the
petition. It cannot be ignored as mere isolated lapse. Some isolated
slip or omission can always be overlooked, but such series of gross
mis-statements directly conflicting with the material on record
cannot be ignored. I am not going into the question whether the
petitioner himself or the draftsman of the petition was responsible
for such mis-statements, leaving it to the good sense of draftsman
to ensure that such instances do not recur.
On
such gross mis-statements itself perhaps it would have been possible
to dismiss the petition. However, right to approach the Court being
fundamental right, I desist from choosing such an option. However,
even otherwise, I find that the petition cannot be entertained. The
petitioner has challenged an order passed by the Gujarat Revenue
Tribunal way back in the year 1996 without proper explanation of
delay. Such gross and inordinate delay of more than 10 years is not
properly explained. The petitioner only pressed in service confusion
on his part pursuing proceedings for fixation of sale price and his
non-availability in India as grounds to explain the delay. None of
these grounds could explain the delay of more than 10 years. The
petitioner is an educated person with sufficient means and can and
has engaged legal advisers from time to time to assist him. In the
meantime rights have been created in favour of tenant and such
delay, therefore, cannot be lightly viewed.
Petition
is, therefore, dismissed.
(AKIL
KURESHI, J.)
ashish//
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