JUDGMENT
Abhilasha Kumari, J.
1. Rule. Mr. J.K. Shah, learned Assistant Government Pleader waives service 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 matters are taken up for final hearing today.
2. These petitions have been filed by the petitioners with the following prayers as contained in paragraph 10 of the main matter i.e. Special Civil Application No. 29226 of 2007:
[A]. Your Lordships may be pleased to admit the present petition.
[B]. Your Lordship may be pleased to issue a writ of Certiorari or a writ in nature of Certiorari or any other appropriate writ/s, order/s, and/or direction/s quashing and setting aside the notices dtd.13/9/2006 (Annexure – A) and dtd.8/12/2006 (Annexure – F) issued by the respondent No. 2 and order dtd.29/8/2002 passed by the respondent No. 2 (Annexure – B).
[C]. Your Lordships may be pleased to issue a writ of Mandamus or writ in nature of mandamus or any other appropriate writ/s, order/s, and/or direction/s directing the respondent No. 3 to enter necessary Mutation Entry, giving effect to the order dtd.28/6/2002 passed by the respondent No. 5 in Tenancy Case No. 102 of 2001, in the revenue records/Village Form Nos.6 & 7/12, of Village Katargam, Taluka Choryasi (City), District Surat within time which may be stipulated by this Hon’ble Court.
[D] Pending admission, hearing and final disposal of this petition, Your Lordships may be pleased to grant ad-interim/interim relief staying the execution, operation and implementation of the order dtd.29/8/2002 passed by the respondent No. 2 (Annexure-B).
[E] Such other and further relief/s as may be deem just and proper in the facts and circumstances of the case may please be granted in favour of the petitioner in the interest of justice.
2. For the sake of convenience, the facts as stated in the main matter are being adverted to. However, the issue involved in all the petitions on the point of law, is similar.
3. Briefly stated, the facts of the case are that, the petitioners are the owners and possessors of land bearing Survey No. 202/1 of Katargam, Taluka Choryasi (City), District Surat, admeasuring about 7282 sq.mtrs. The said land has now been partitioned amongst the petitioners, who are members of a family, and the new numbers are Revenue Survey Nos.202/1/A, 202/1/B, 202/1/C and 202/1/D. It is the case of the petitioners that the respondent No. 5 i.e. the Additional Mamlatdar & ALT (Tenancy), Choryasi, passed an order dated 28.06.2002, in Tenancy Case No. 102/2001 under Section 70(o) of the Bombay Tenancy and Agricultural Lands Act, 1948 (the ‘Act’ for short), declaring the petitioners as permanent tenants, and thereby removing the restrictions imposed under Section 43 of the Act. The said order of the Mamlatdar was confirmed by the respondent No. 4 i.e. the Deputy Collector, and thereafter by the respondent No. 2 i.e. the District Collector, Surat. Respondent No. 2, forwarded the proposal to the State Government vide letter dated 3.3.2003, a copy of which is annexed as Annexure – E to the petition, with an observation that the order dated 28.6.2006 passed by the respondent No. 5 is in consonance with the Circular issued by the State Government.
4. It is not disputed that the State Government has not challenged the order dated 28.06.2002 passed by the respondent No. 5 (Mamlatdar & ALT) till date. The case of the petitioners is that inspite of not having challenged the order dated 28.06.2002, which is in consonance with the earlier Circular of the Covernment, the State Government issued Circular dated 7.10.2005, empowering the District Collector to decide the cases under Section 43 of the Act. The District Collector issued a notice dated 13.09.2006 (Annexure – A to the petition) to the petitioners for review of the order dated 28.06.2002 passed by the respondent No. 5 in Tenancy Case No. 102/2001, in view of Circular dated 7.10.2005. Thereafter, the matter was adjourned.
5. It is stated in the petition that in the meanwhile, the Circular dated 07.10.2005 was challenged before this Court by a number of affected persons by filing Special Civil Application No. 9609 of 2006 and other allied matters. The said writ petitions were allowed vide judgment and order dated 17-18-23.01.2007, copy of which is annexed as Annexure – G to the petition. This Court (Coram: Jayant Patel, J.) vide the above referred judgment quashed and set-aside the Circular dated 07.10.2005, and held the same as ultra vires to the provisions of the Act. The relevant extract of the judgment is reproduced hereinbelow:
Paragraph:
The circular of the State Government dated 07.10.2005 is in conformity with the express basic scheme and mechanism provided under the Act and the circular attempts to nullify the power conferred by the legislature upon the Mamlatdar & ALT for the first instance and the circular is intended to confer the power upon the Collector with the approval of the State Government against the express statutory scheme and mechanism of the Act and hence, the said circular of the State Government is ultra vires to the Act and hence, unconstitutional and void.
6. It is further averred by the petitioners that in view of the quashing and setting aside of the Circular dated 07.10.2005, the matter could not have been processed further by the respondent No. 2. It is stated that the petitioners made a representation by letter dated 28.06.2007 to the respondents, requesting them to implement the order dated 28.6.2002 of the respondent No. 5 i.e. the Mamlatdar & ALT. The respondent No. 4 replied to the representation of the petitioners vide letter dated 11.07.2007. A copy of the representation as well as the reply of respondent No. 4 are collectively annexed as Annexure H to the petition.
7. Thereafter, vide letter dated 11.07.2007, the respondent No. 4 informed the petitioners that their representation could be considered after the disposal of the proceedings initiated by the Collector by impugned notice dated 13.09.2006, annexed at Annexure – A to the petition. Being aggrieved by the communication dated 13.09.2006 (Annexure – A) and communication dated 29.08.2002 (Annexure – B herein), which have been issued by the respondent No. 2 in pursuance of the Circular dated 07.10.2005, the petitioners have approached this Court by way of the present writ petition.
8. I have heard Mr. K.K. Trivedi, learned Counsel for the petitioners and Mr. J.K. Shah, learned Assistant Government Pleader for respondents No. 1 to 5 at length and in detail. Mr. K.K. Trivedi, learned Counsel for the petitioners submits that the impugned notices dated 13.9.2006 (Annexure A) and 8.12.2006 (Annexure F) issued by the respondent No. 2 are contrary to the judgment and order dated 17-18-23.01.2007 passed by this Court in Special Civil Application No. 9609 of 2006. It is submitted by Mr. Trivedi that the order dated 28.06.2002 of the Mamlatdar & ALT has remained unchallenged till date, and therefore, has attained finality. It is pointed out by the learned Counsel for the petitioners that the judgment of this Court rendered in Special Civil Application No. 9609 of 2006 has not been challenged by the respondents so far, and the respondents are, therefore, bound to give effect to it. Mr.J.K. Shah, learned Assistant Government Pleader, does not deny that the judgment 17-18-23.01.2007 rendered in Special Civil Application No. 9609 of 2006 holds the field as of today. However, it is submitted by Mr.J.K. Shah that the Government has decided to carry the matter in Letters Patent Appeal.
9. In view of the above position, and under the facts and circumstances, the only conclusion which can be arrived at by this Court is that since the Circular dated 07.10.2005 has been quashed by this Court vide the judgment dated 17-18-23.01.2007, the respondents are bound to give effect to the said decision of this Court rendered in Special Civil Application No. 9609 of 2006, and it is so directed. In the event that Circular dated 07.10.2005 is restored, or otherwise, in any proceedings that may be initiated before any forum, the Collector would be at liberty to take action, in accordance with law.
10. Accordingly, it is directed that the respondents comply with the directions given in judgment dated 17-18-23.1.2007 rendered in Special Civil Application No. 9609 of 2006. Under the circumstances, the impugned notice dated 13.09.2006 (Annexure – A), in so far as they relate to the circular dated 07.10.2005 of the State Government, are 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, nor shall the bar operate for other remedial measures against the order dated 28.06.2002 passed by the Mamlatdar and ALT, if otherwise permissible in law.
11. So far as the directions of the Collector at Annexure – B are concerned, it is clarified that if the respondents do not take proper recourse to law, within a period of three months from the date of this order, the restriction imposed vide order dated 29.08.2002 (Annexure – B) shall cease to operate after the expiry of the above stipulated period of three months. It is open to the petitioners to apply to respondent No. 3 for the mutation of entries in pursuance of order dated 28.06.2002, which will be dealt with by the respondent No. 3, in accordance with law.
12. The writ petitions are disposed of in the above terms. Rule is made absolute in the above terms. There shall be no orders as to costs.